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On June 9, 2014, the Supreme Court issued its decision in Executive Benefits Insurance Agency v. Arkison. This case presented two questions regarding the power of bankruptcy courts: One, does Article III of the Constitution permit bankruptcy courts to exercise the judicial power of the United States on the basis of litigant consent--and if so, can consent be implied by litigant conduct? The second question is whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding.

In a unanimous opinion delivered by Justice Thomas, the Court held that while, under the reasoning of Stern v. Marshall, the Constitution does not permit a bankruptcy court to enter final judgment on a bankruptcy-related claim, the relevant statute nevertheless permits a bankruptcy court to issue proposed findings of fact and conclusions of law to be reviewed de novo by the district court. Because this determination sufficed to affirm the judgment of the Ninth Circuit in this particular case, the Supreme Court did not rule on the viability of litigant consent to jurisdiction.

To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

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