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Copyright (c) 2012 National Conference of Bankruptcy Judges
The American Bankruptcy Law Journal

MARATHON AT 30: A SYMPOSIUM ISSUE: ARTICLE: Blue Collar Constitutional Law

Winter, 2012

American Bankruptcy Law Journal

86 Am. Bankr. L.J. 3


by Douglas G. Baird*


Judges of inferior courts must apply the instructions of the Supreme Court as best they can. Quite often these require reconsideration of practices that matter only to those close to the ground. These problems are virtually invisible to those in the academy who wrestle with the mysteries of constitutional law. Constitutional law takes on a different shape in this environment. The Supreme Court's opinion in Stern v. Marshall 1 is especially likely to raise many of these barely visible questions. I focus on one such question in this paper and use it to examine how bankruptcy judges navigate this terrain.

Bankruptcy judges are judges. The police officers applying the Miranda rule and the prosecutors applying Brady also find themselves confronting the challenge of complying with opinions of the Supreme Court that may be vague or appear contradictory, but they are not in quite the same position. Bankruptcy judges are charged with resolving the controversies brought before them and making authoritative declarations about the law. In this paper, I explore the question of the extent to which this kind of constitutional law - call it blue-collar constitutional law - is different from the stuff that is the focus of constitutional law classes and that populates the law reviews.

In Part I of the paper, I put forward an example of one of the many small issues that now present problems for bankruptcy judges. I use it to show how it captures the central difficulty that Stern presents, and I trace ...
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