INTRODUCTION

The story begins with the enactment of the Code itself. Because the Code established a quasi-judicial bankruptcy process operated without jury trial by judges that were not appointed under Article III, the Code immediately presented the Court with a fundamental constitutional question – whether Congress had the power to establish that process. Starting from a clean slate, a variety of interpretive approaches would come readily to mind. For example, noting the prominence of the Bankruptcy Clause in Article I (Art. 1, § 8, cl. 4), the Court could have concluded that Congress's power to define the mode of proceedings for bankruptcy carried with it an implicit control (or at least a relatively free hand) over the question whether those proceedings would be “legal” (with Article III judges and jury trials) or “administrative” or “equitable” (without). For example, the Court has given Congress quite a free hand in defining the jurisdiction of military courts under Art. I, § 8, cl. 13, which grants the power “[t]o make rules for the government and regulation of the land and naval forces.” The Court has given a similarly capacious reading to the parallel phrase in the same Clause as the Bankruptcy Power, which grants uniform authority over naturalization.

Alternatively, the Court might have considered the practical need for expeditious and conclusive resolution of the financial affairs of bankrupts as an important factor in its analysis of the constitutional right to a jury trial and an Article III judge. Balancing the importance of making the bankruptcy laws effective and efficient against intrusions on other constitutional values, the Court could decide in a relatively flexible way whether any particular exercise of the Bankruptcy Power intrudes unduly on those other values.

Still another possibility would have been that the Court make an exclusively historical inquiry: analogizing twenty-first-century insolvency proceedings to the nearest eighteenth-century precursor and applying the jury status of the precursor to the modern insolvency proceeding. Although the last alternative seems as a doctrinal matter the least plausible, it comes closer to the Court's choice than any of the others. The overall theme of importance for my narrative is whether it is purely a coincidence that this is the choice that gives the least weight to the needs of the bankruptcy system.