Discerning the Relationship Between Bankruptcy Judges and Article III Judges

supreme courtThis summer, the United States Supreme Court handed down a decision in the case of Executive Benefits Insurance Agency v. Arkison that changed how bankruptcy judges, covered under Article I (the Executive Branch) of the Constitution, and district court Article III judges work together. Arkison helped clarify nagging procedural issues between district and bankruptcy courts. At the same time, Arkison verified a significant reduction in the ability of bankruptcy courts to resolve common claims arising in bankruptcy proceedings.

Arkison began as a seemingly conventional case. In 2006, Bellingham Insurance Agency filed for Chapter 7 bankruptcy. Peter Arkison was assigned as the trustee. Mr. Arkison filed a fraudulent conveyance complaint against Bellingham, something not uncommon in a bankruptcy proceeding. In fact, Title 28 specifically grants bankruptcy courts the ability to hear and determine such claims. The bankruptcy court granted summary judgment on Mr. Arkison’s claim.

The black letter language in Title 28 and Supreme Court precedent contradict each other.

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Back From Japan: What I Learned

Recently I went to Japan as part of a small group of American academics and researchers who are interested in Japanese foreign policy. During the trip, we met with officials from the Ministry of Foreign Affairs, Ministry of Defense, Coast Guard, and Cabinet Secretariat to discuss recent developments in regional security and U.S.-Japan relations. Unsurprisingly, many of the meetings focused on the Senkaku Islands. In this post, I’ll share a few things I learned.

There’s Still “No Dispute”

During the meetings, it quickly became apparent that some media outlets in the West haven’t accurately characterized current Japanese policy. Tokyo’s longstanding position has been that there’s “no dispute” over the Senkakus—the territory belongs to Japan and there is nothing to negotiate or even talk about. This view is of course controversial in China, which also claims the Islands, and the two sides have been engaged in a fairly protracted and tense standoff as a result. To reduce tensions and improve bilateral relations, China and Japan jointly released a four-point statement on November 7th. Sources ranging from The Diplomat to The New York Times reported the statement as evidence of a significant shift in policy: Japan would now recognize the existence of a dispute. On this view, the recent statement was a major concession to China because recognizing a dispute might open the door to bilateral negotiations that could have only one effect—namely, an erosion of Japan’s effective control over the territory.

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