Document Type
Article
Publication Date
2017
Disciplines
Law
Abstract
Bankruptcy cases often contain distinct contested matters and adversary proceedings. The possibility of these many permutations stokes the tension between the desire for quick adjudications by a non-Article III bankruptcy judge and the need to protect litigants' rights to an Article III tribunal. However, the application of consent to bankruptcy judge authority and forfeiture of the right to proceed before an Article III district judge alleviates this tension. Although the Supreme Court recently endorsed the application of these doctrines, the boundaries remain unsettled. The temptation is to apply the doctrines of consent and forfeiture broadly in order to facilitate bankruptcy judges' authority to enter final judgments. Filing a voluntary petition is a fixture of almost all bankruptcy cases, and entries of a default judgment are also very common. Both are attractive platforms for consent and forfeiture. This Article employs the Supreme Court's teachings and the historical analysis sanctioned by the Supreme Court to evaluate voluntary bankruptcy filings and entries of defaults as bases for consent and forfeiture.
Amidst the uncertainty surrounding consent and forfeiture, clear constitutional rules are needed. Neither a voluntary petition nor the entry of a default constitutes consent to a final adjudication by a bankruptcy judge or forfeiture of the right to an Article III judge. When is a choice not really a choice? A debtor lacks feasible alternatives to obtain a discharge of his or her debts. Without other options, a voluntary bankruptcy petition cannot constitute blanket consent by the debtor to a bankruptcy judge's final adjudication. A debtor only consents to determinations regarding the debtor's property, the debtor's discharge, and the preclusive effects of those determinations. A voluntary petition does not constitute a final judgment providing a basis for forfeiture of a right to an Article III tribunal either. Defaulting defendants are, at most, indifferent to a final adjudication by a bankruptcy judge. The failure to articulate a choice does not constitute consent to the final adjudication by a bankruptcy judge. An entry of default, by definition, is not a judgment on the merits and cannot constitute a forfeiture of the right to an Article III judge. A default simply does not alter whether an Article III judge is required to enter a final judgment. Historical practice allows a bankruptcy judge to issue a report suggesting the entry of a default judgment. The report must be confirmed and entered by an Article III judge.
Publication Title
Drake Law Review
Volume
65
First Page
89
Recommended Citation
Robert Miller, Nothing New: Consent, Forfeiture, and Bankruptcy Court Final Judgments, 65 Drake L. Rev. 89 (2017)