Non-Article III Adjudication: Bankruptcy and Nonbankruptcy, With and Without Litigant Consent

This Article analyzes the Supreme Court's 2015 decision in Wellness International Network, Ltd. v. Sharif. In upholding the constitutionality of non-Article III bankruptcy adjudications with litigant consent, Wellness resolved an important issue raised by the Court's momentous 2011 Stern v. Marshall decision. The Wellness opinion, though, has more profound implications for the constitutionality of non-Article III adjudications, both bankruptcy and nonbankruptcy, whether those non-Article III adjudications are conducted with or without litigant consent. Beyond the bankruptcy context, Wellness reveals a general Supreme Court jurisprudence with a bifurcated analytical methodology that facilitates a complex interaction between the waivable personal and non-waivable structural interests protected by Article III, § 1.

In the bankruptcy context, Wellness provides further evidence that the Court is, over a long run of decisions, simply confirming the constitutional significance of its extensive summary-plenary jurisprudence as the operative constitutional constraint on the adjudicatory powers of non-Article III bankruptcy judges.