Is Consent Enough? 28 U.S.C. § 157(C)(2) and the Fifth Circuit Jurisdictional Limbo



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Texas Tech Business & Bankruptcy Law Journal


The scope of this article addresses the constitutionality of 28 U.S.C. § 157(c)(2), how the Fifth Circuit is dealing with the issue of consent, and how courts should address the issue. The author provides a brief overview of the law surrounding bankruptcy court jurisdiction, while examining the differences between core and non-core issues. Next, the article examines the current Supreme Court precedent on Stern questions and how the Court has handled consent to final adjudication of non-core claims in bankruptcy courts. Then the article will focus on how the Fifth Circuit has interpreted the consent issue given the lack of guidance by the Supreme Court. The article next gives a brief overview of interpretations by the other circuit courts and examine where they differ on their interpretations of the law. Lastly, the article addresses the current issues with the circuit split and propose a solution to the problem.



Consent, Jurisdiction, Non-core issues, Fifth Circuit, Stern v. Marshall


2 Bus. & Bankr. L. J. 311