shortest federal court docket -- case or controversy question
Janet Alexander
jca at stanford.edu
Mon Sep 11 10:24:43 PDT 2006
Magistrate judges also are not Art III judges, and surely they are
constrained by the case or controversy requirement. Can bankruptcy judges
be distinguished from magistrate judges? Both operate from federal
courthouses as "adjuncts" to the federal district courts. Perhaps it is
only pragmatic (and somewhat incoherent) acceptance of the necessities of
the administrative state, but the Supreme Court has drawn a distinction
between non-Art III judges who operate within the courts and agency
adjudication. Compare the 7th amendment right to jury trial.
Janet Alexander
At 07:56 AM 9/11/2006 -0400, Earl Maltz wrote:
>Off the top of my head, it seems to me that they should not be so
>limited. The best analogy would be to agencies such as the NLRB, which
>have both legislative and adjudicative powers.
>
>At 07:13 AM 9/11/2006 -0400, Mark Tushnet wrote:
>
>>An initial thought, based on ignorance: Are bankruptcy judges, who arent
>>Article III judges, limited to cases or controversies? (That is, can
>>they issue advisory opinions, etc.?)
>>
>>
>>
>>Mark Tushnet
>>
>>William Nelson Cromwell Professor of Law
>>
>>Harvard Law School
>>
>>Areeda 223
>>
>>Cambridge, MA 02138
>>
>>ph: 617-496-4451 (office); 202-291-6352 (home); 202-374-9571 (mobile);
>>617-496-4866 (fax)
>>
>>----------
>>From: conlawprof-bounces at lists.ucla.edu
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of J. Noble
>>Sent: Monday, September 11, 2006 12:06 AM
>>To: Fred Shapiro; Samuel Bagenstos
>>Cc: conlawprof at lists.ucla.edu
>>Subject: shortest federal court docket -- case or controversy question
>>
>>
>>
>>In re Attorneys At Law and Debt Relief Agencies, 332 B.R. 66, No.
>>05-4002005, (Bankr.S.D.Ga., Oct. 17, 2005), reported at 332 B.R. 66 . The
>>first item on the docket is the final order. No complaint, no petition,
>>no praecipes noticing appearance of counsel, no pleadings. In fact -- no
>>parties.
>>
>>
>>
>>Judge Lamar W. Davis, Jr. ruled, sua sponte, that Congress did not intend
>>to include licensed attorneys within the definition of "debt relief
>>agencies" in the Bankruptcy Abuse Prevention and Consumer Protection Act
>>of 2005, despite unanimous commentary to the contrary:
>>
>>
>>
>>If these commentators are correct, a new layer of regulation will be
>>superimposed on the bar of this Court, and evaluation of new risks and
>>liabilities will preoccupy them as they strive to represent their
>>clients, comply with existing state regulation of their practice, learn
>>the new substantive and procedural mandates of this new law, and adhere
>>to the separate professional standards applicable to members of the Bar
>>of this Court. See Local Rule 83.5(d). That is a burden which should not
>>be borne by the Bar needlessly or merely out of an abundance of caution.
>>It should and must be borne by the Bar if that is the result Congress
>>mandated. Anything less than the highest level of professional conduct is
>>not tolerable in this Court. Equally intolerable is needless uncertainty
>>in the minds of the Bar as to their duty under this new statute."
>>
>>
>>
>>Judge Davis acknowledged that "the inclusion of 'legal representation' in
>>the scope of what a debt relief agency does certainly suggests a contrary
>>result to that which I reach...." Nonetheless --
>>
>>
>>
>>I conclude that the inclusion of the term "legal representation" in the
>>definition of "bankruptcy assistance" was Congress's effort to empower
>>the Bankruptcy Courts presiding over a case with authority to protect
>>consumers who are before the Court, who may have been harmed by a debt
>>relief agency that may have engaged in the unauthorized practice of law....
>>
>>
>>
>>The second docket entry is the notice of appeal filed by the U.S.
>>Bankruptcy Trustee, and the third is the Statement of the Issues to be
>>Presented on Appeal, which unsurprisingly leads off with "1. Did the
>>Bankruptcy Court have jurisdiction to enter the Order from which the
>>appeal is taken, notwithstanding the absence of any case or controversy
>>before it presenting the issue addressed by the Order?"
>>
>>
>>
>>The opinion addressed jurisdiction in footnote 1: "Section 526(c)(5)
>>authorizes the Court on its own motion to enjoin violations of the debt
>>relief agency provisions or impose civil penalties on the violator. If
>>the Court has that broad jurisdiction to both initiate a disciplinary
>>action and punish a violation, it must of necessity have jurisdiction on
>>it own motion to conclude that certain types of persons or certain types
>>of activity are not covered at all, since the first step in enforcing the
>>provision is to determine whom is encompassed within its grasp."
>>
>>
>>
>>It might have been better if the judge entered the order in a live
>>bankruptcy case plucked at random from his caseload, but I wonder if the
>>basic requirements of a case or controversy aren't satisfied with a
>>statute that gives the court express sua sponte authority to enforce the
>>"debt relief agency" disclosure requirements, and at least the authority,
>>if not an implicit obligation, to inquire of the petitioner whether the
>>required disclosures were made (the way courts grill defendants who plead
>>guilty to assure that they understand the rights they are waving, have
>>discussed the plea with counsel, and no promises have been made regarding
>>sentencing.) If there's a case or controversy that supports a sua sponte
>>decision to sanction counsel for violating the BAPCPA, doesn't the same
>>case or controversy support a sua sponte decision not to sanction
>>counsel, and explain why?
>>
>>
>>
>>John Noble
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>
>_______________________________________________
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892
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