Research Matters: Douglas Baird on “Blue Collar Constitutional Law”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Douglas Baird, Harry A. Bigelow Distinguished Service Professor of Law, wrote “Blue Collar Constitutional Law” for the Winter 2012 issue of the American Bankruptcy Law Journal, which is edited by bankruptcy judges. Baird wrote the paper after the Supreme Court’s 2011 decision in Stern v. Marshall. In that case, the Court said, a bankruptcy court had the statutory authority, but not the constitutional authority, to issue a final and binding decision on a claim based on a right assured by state law. That decision, understandably, left bankruptcy judges asking what to do next, and Baird attempted to answer some of those questions in his paper. The work is still relevant because the Court’s docket this year involves another case like Stern, Executive Benefits Insurance Agency v. Arkison.

Q. Why did you write this?

A. This was done for a panel discussion organized by bankruptcy judges shortly after the opinion in Stern v. Marshall came down. The case fundamentally affects what bankruptcy judges can do, and the judges needed to think about what to do in light of that decision. My aspiration was not to tell bankruptcy judges how to decide a particular case, but rather address the threshold questions of, how do we fit this important Supreme Court case in with 200 years of constitutional law jurisprudence, how do we connect this case with other cases, and how should we think about new cases going forward? Obviously, if they face another case that’s exactly like Stern v. Marshall, they have to follow it. But a large part of the trick in being a good judge is deciding what to do about related cases or similar cases. How broad is an opinion? How should you go about interpreting it?  And, of course, this case is still very much with us. The Executive Benefits Insurance Agency case was argued in January and will be decided before the end of June. The world may be turned upside down for bankruptcy judges any day now. I’m giving another talk for them on the new opinion, once it comes down.

Q. Why is Stern v. Marshall so problematic for bankruptcy judges?

A. The Constitution requires that anyone who exercises “the judicial power” has to have lifetime tenure – so-called “Article III judges.” And bankruptcy judges do not have lifetime tenure. Any time the bankruptcy judge acts, you have to explain why the judge is doing within the category of things that the Supreme Court has said do not have to be done by Article III judges. Typically, we say bankruptcy judges derive their powers from being adjuncts of the district court. It doesn’t violate the Constitution because the decision-making is under the control and supervision of someone who does have lifetime tenure. And so the question becomes, how independent can a bankruptcy judge be of a district judge without violating Article III?

The big question in Executive Benefits Insurance Agency is the extent to which two parties can consent to having a bankruptcy judge resolve something. You and I agree to have the bankruptcy judge decide it, and then if we don’t like what the bankruptcy judge does, we can take it to the district court. Should we be able to do that? One argument says that it’s just like you and me agreeing to arbitration. Another argument says that it is a fundamental principle of constitutional law that you can’t consent to subject-matter jurisdiction.

My paper asks, among other things, what should bankruptcy judges do in the interim, while the Court is still working on these issues? As the Supreme Court has to revisit all these fundamental issues, does a bankruptcy judge, in trying to figure out what Stern v. Marshall means, have to engage in the same activity? I argue no. If you’re a bankruptcy judge on the ground, you don’t have to revisit first principles. The Supreme Court said its opinion in Stern v. Marshall was narrow, and a bankruptcy judge can completely, appropriately take the Supreme Court at its word, and let the Supreme Court figure out if something more fundamental is going on.

Q. What are the bankruptcy judges trying to learn from you when they ask you to present your work?

A. Bankruptcy judges very rightly don’t think of me as being someone who can do their job. I can’t. Bankruptcy judges as a group are very fine, very thoughtful judges who have a set of experiences I don’t have. But what I can bring to the party is perspective they might not have; I can draw connections they might not have. For example: one of the analogies that’s often made is that bankruptcy judges can do what they do because they’re like masters that existed in the English courts back in the 18th century. Bankruptcy jurisprudence is intensely historical, in that the Supreme Court in interpreting how these doctrines apply to bankruptcy judges has always engaged in a very important historical inquiry. We look at what the chancellor could do in England in the 18th century, and by analogy, if the chancellor could do it, and it was appropriate in the 18th century, then we have a better understanding of what the judicial power means today. That’s a historical inquiry, where an academic has an edge over practicing lawyers, because looking at 18th century materials is something that we do.

Q. Do you have a hunch on how the Court will decide the Executive Benefits Insurance Agency case?

A. After Stern, much of what the bankruptcy court does is by consent. No one is clear on what the bankruptcy courts will be able to do if the case strikes down consent. I don’t want to put a number on it, but I’d say there’s a 65 percent chance that the Supreme Court will affirm and allow the bankruptcy judges to continue doing what they have been doing for years and about a 35 percent chance that the whole world will be turned upside down.

Q. Why did you coin the term “blue collar constitutional law?"

A. A lot of people think that the only people who do constitutional law are the nine members of the Supreme Court. The only arguments worth making are hypothetical arguments you make before the Court. And the only people who are allowed to talk about constitutional law in the academy are the ones who teach constitutional law. I don’t teach constitutional law. I teach very nitty-gritty, on-the-ground stuff. And the judges I work with and know are bankruptcy judges, they’re not usually thought of as founts of constitutional law, but they are judges, and they do have to apply the Constitution in deciding mundane but highly technical issues. And, if you’re a responsible judge, you’re supposed to decide these cases consistent with the Constitution. You are not trying to do profound jurisprudence. It’s not some grand vision of justice, or the Fourteenth Amendment, or due process. You are just trying to do your job and decide the quotidian case in front of you. It’s blue collar constitutional law.