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Legislative Courts, Administrative Agencies, And The Northern Pipeline Decision, Martin H. Redish

Duke Law Journal

In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., the Supreme Court held unconstitutional the exercise of the jurisdiction of the Bankruptcy Courts because their judges lacked article III's protections of salary and tenure. In so holding, the Court significantly altered the criteria for deciding what cases have to be heard by judges with article III protections. In this article, Professor Redish criticizes the criteria adopted by the Justices, and suggests alternative criteria which would better foster the values behind the independence protections of article III. In addition, he examines the implications of the various criteria for the continued …