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July 07, 2011


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Unworthy Conversant

Is being on the receiving end of appellate jurisdiction a component of the prestige? Maybe federal District Judges, tired of being reversed by Circuit Courts of Appeal, take solace in doing some reversing of the bankruptcy judges in their districts?

I argue that the USBCs should have Article III status - if for no other reason than to place them on equal footing with District Judges, and thereby to remove that particular appellate avenue. I think this is necessary primarily because bankruptcy law, as you well noted Professor, is becoming increasingly complicated. There is little to commend the notion that a highly-political and highly-successful criminal defense attorney, once having secured a federal robe, will be able to competently rule on a complex question of whether or not a particular case arose under Title 11, or perhaps arose in or is related to a case under Title 11. The standard rebuttal to such observations is an irrational faith in the value of the "bench brief," by which judges who were previously incompetent to rule on a topic are magically made experts sufficient to maintain the credibility of the court through a very few pages of explanation.

And you raise an additional nefarious possibility, Professor - that of emotional refuge in hearing bankruptcy appeals. Like a bully who beats up smaller children at school because he himself is beaten at home, a District Judge who has endured multiple embarrassing reversals on appeal can inflict the same punishment on someone else. Quintessentially human, perhaps; but not the sort of sentiment that government wants associated with the judiciary - and certainly not those feelings that prompt the construction of obtuse legal statuary and large Corinthian columns.

Jessica Owley

Interesting thoughts by "UC" above. I'm not sure district court judges get very excited about reversing bankruptcy judges. Remember, most of them already have a relationship like that with the magistrate judges (another group who merits Article III status perhaps?) and generally I don't think most judges are looking to overturn the trial court.

And because bankruptcy appeals can go either to the district court or BAP, I am wondering if most district court appeals deal with non-bankruptcy issues. Not that I have studied this at all, but when I clerked on a district court the cases that came from the bankruptcy court usually required the judge to deal mostly with non-bankruptcy issues that came up in the course of the proceedings. I had assumed (perhaps quite incorrectly) that attorneys would choose to go to BAP when bankruptcy law expertise was needed.

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