From a Scream to a Whisper: The Supreme Court Does Little to Fix Its Bankruptcy Court Mess (Executive Benefits Insurance Agency v. Arkison (In re Bellingham))
Jonathan C. Lipson
Say what you will about Justice Clarence Thomas: unlike the protagonist in Elvis Costello’s paean to libidinal frustration, his unanimous opinion in Executive Benefits Insurance Agency v. Arkison (In re Bellingham), certainly resists many temptations left by its predecessor, Stern v. Marshall, to define what bankruptcy courts can and cannot do. Rather than take on Stern’s grand systemic concerns—the nature of the Article III “judicial power” —Bellingham whimpers out on a technicality, concluding that problems created by Stern can be statutorily “severed” and thus resolved with the slice of a judicial knife. [. . .] This essay briefly summarizes the problems created by Stern and five ways in which Bellingham failed to fix them.
Jonathan C. Lipson is the Harold E. Kohn Professor of Law at Temple University, Beasley School of Law.