# Granfinanciera v. Nordberg/Concurrence Scalia

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Scalia
* Dissenting Opinions White Blackmun
Justice SCALIA, concurring in part and concurring in the judgment.
I join all but Part IV of the Court's opinion. I make that exception because I do not agree with the premise of its discussion: that "the Federal Government need not be a party for a case to revolve around 'public rights.' " Ante, at 54, quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 586, 105 S.Ct. 3325, 3335, 87 L.Ed.2d 409 (1985). In my view a matter of "public rights," whose adjudication Congress may assign to tribunals lacking the essential characteristics of Article III courts, "must at a minimum arise 'between the government and others.' " Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69, 102 S.Ct. 2858, 2870, 73 L.Ed.2d 598 (1982) (plurality opinion), quoting Ex parte Bakelite Corp., 279 U.S. 438, 451, 49 S.Ct. 411, 413, 73 L.Ed. 789 (1929). Until quite recently this has also been the consistent vi w of the Court. See 458 U.S., at 69, n. 23, 102 S.Ct., at 2870 ("[T]he presence of the United States as a proper party . . . is a necessary but not sufficient means of distinguishing 'private rights' from 'public rights' "); Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 450, 97 S.Ct. 1261, 1266, 51 L.Ed.2d 464 (1977) (public rights cases are "cases in which the Government sues in its sovereign capacity to enforce public rights created by statutes"); id., at 457, 97 S.Ct., at 1270 (noting "distinction between cases of private right and those which arise between the Government and persons subject to its authority"); id., at 458, 97 S.Ct., at 1270 (situations involving "public rights" are those "where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights"); Crowell v. Benson, 285 U.S. 22, 50-51, 52 S.Ct. 285, 292, 76 L.Ed. 598 (1932) (public rights are "those which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments"); Ex parte Bakelite Corp., supra, at 451, 49 S.Ct., at 413 (public rights are those "arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it"); Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 283, 15 L.Ed. 372 (1856) (plaintiff's argument that a controversy susceptible of judicial determination must be a "judicial controversy" heard in an Article III court "leaves out of view the fact that the United States is a party").
The notion that the power to adjudicate a legal controversy between two private parties may be assigned to a non-Article III, yet federal, tribunal is entirely inconsistent with the origins of the public rights doctrine. The language of Article III itself, of course, admits of no exceptions; it directs unambiguously that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In Murray's Lessee, supra, however, we recognized a category of "public rights" whose adjudication, though a judicial act, Congress may assign to tribunals lacking the essential characteristics of Article III courts. That case involved the Act of May 15, 1820, 3 Stat. 592, which established a summary procedure for obtaining from collectors of federal revenue funds that they owed to the Treasury. Under that procedure, after a federal auditor made the determination that the funds were due, a "distress warrant" would be issued by the Solicitor of the Treasury, authorizing a United States marshal to seize and sell the personal property of the collector, and to convey his real property, in satisfaction of the debt. The United States' lien upon the real property would be effective upon the marshal's filing of the distress warrant in the district court of the district where the property was located. The debtor could, however, bring a challenge to the distress warrant in any United States district court, in which judicial challenge "every fact upon which the legality of the extra-judicial remedy depends may be drawn in[to] question," 18 How., at 284. Murray's Lessee involved a dispute over title to lands that had been owned by a former collector of customs whom the Treasury auditor had adjudged to be deficient in his remittances. The defendant had purchased the land in the marshal's sale pursuant to a duly issued distress warrant (which had apparently not been contested by the collector in any district court proceeding). The plaintiff, who had acquired the same land pursuant to the execution of a judgment against the collector, which execution occurred before the marshal's sale, but after the marshal's filing of the distress warrant to establish the lien, brought an action for ejectment to try tit e. He argued, inter alia, that the process by which the defendant had obtained title violated Article III because adjudication of the collector's indebtedness to the United States was inherently a judicial act, and could not lawfully have been performed by a Treasury auditor, but only by an Article III court. We rejected this contention by observing that although "the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act," id., at 280, the English and American traditions established that it did not, without consent of Congress, give rise to a judicial "controversy" within the meaning of Article III.
It was in the course of answering the plaintiff's rejoinder to this holding that we uttered the words giving birth to the public rights doctrine. The plaintiff argued that if we were correct that the matter was "not in its nature a judicial controversy, congress could not make it such, nor give jurisdiction over it to the district courts" in the bills permitted to be filed by collectors challenging distress warrants so that "the fact that congress has enabled the district court to pass upon it, is conclusive evidence that it is a judicial controversy." Id., at 282. That argument, we said, "leaves out of view the fact that the United States is a party." Id., at 283. Unlike a private party who acts extrajudicially to recapture his property, the marshal who executes a distress warrant "cannot be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, cannot be sued without its own consent," even though the issue in question is an appropriate matter for a judicial controversy. Ibid. Congress could, however, waive this immunity, so as to permit challenges to the factual bases of officers' actions in Article III courts; and this waiver did not have to place the proceeding in the courts unconditionally or ab initio, for the "United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just." Ibid. Thus, we summed up, in the oft-quoted passage establishing the doctrine at issue here:
[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." Id., at 284 (emphasis added).
It is clear that what we meant by public rights were not rights important to the public, or rights created by the public, but rights of the public-that is, rights pertaining to claims brought by or against the United States. For central to our reasoning was the device of waiver of sovereign immunity, as a means of converting a subject which, though its resolution involved a "judicial act," could not be brought before the courts, into the stuff of an Article III "judicial controversy." Waiver of sovereign immunity can only be implicated, of course, in suits where the Government is a party. We understood this from the time the doctrine of public rights was born, in 1856, until two Terms ago, saying as recently as 1982 that the suits to which it applies "must at a minimum arise 'between the government and others,' " Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S., at 69, 102 S.Ct., at 2870, quoting Ex parte Bakelite Corp., 279 U.S., at 451, 49 S.Ct., at 413. See also, in addition to the cases cited supra, at 65-66, Williams v. United States, 289 U.S. 553, 581, 53 S.Ct. 751, 760, 77 L.Ed. 1372 (1933) (noting sovereign immunity origins of legislative courts); Ex parte Bakelite, supra, 279 U.S., at 453-454, 49 S.Ct., at 414 (same). Cf. McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189 (1880).
In Thomas v. Union Carbide Agricultura Products Co., 473 U.S. 568, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), however, we decided to interpret the phrase "public rights" as though it had not been developed in the context just discussed and did not bear the meaning just described. We pronounced, as far as I can tell by sheer force of our office, that it applies to a right "so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Id., at 593-594, 105 S.Ct., at 3339 (emphasis added). The doctrine reflects, we announced, "simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that 'could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers is reduced," id., at 589, 105 S.Ct., at 3337, quoting Northern Pipeline, supra, 458 U.S., at 68, 102 S.Ct., at 2869-without pointing out, as had Murray's Lessee, that the only adjudications of private rights that "could be conclusively determined by the Executive and Legislative Branches" were a select category of private rights vis-a-vis the Government itself. We thus held in Thomas, for the first time, that a purely private federally created action did not require Article III courts.
There was in my view no constitutional basis for that decision. It did not purport to be faithful to the origins of the public rights doctrine in Murray's Lessee; nor did it replace the careful analysis of that case with some other reasoning that identifies a discrete category of "judicial acts" which, at the time the Constitution was adopted, were not thought to implicate a "judicial controversy." The lines sought to be established by the Constitution did not matter. "Pragmatic understanding" was all that counted-in a case-by-case evaluation of whether the danger of "encroaching" on the "judicial powers" (a phrase now drained of constant content) is too much. The Term after Thomas, in Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), we reconfirmed our error, embracing the analysis of Thomas and describing at greater length the new Article III standard it established, which seems to me no standard at all:
"[I]n reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary. . . . Among the factors upon which we have focused are the extent to which the 'essential attributes of judicial power' are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III." 478 U.S., at 851, 106 S.Ct., at 3264 citing Thomas, supra, 473 U.S., at 587, 589-593, 105 S.Ct., at 3336, 3337-39.
I do not think one can preserve a system of separation of powers on the basis of such intuitive judgments regarding "practical effects," no more with regard to the assigned functions of the courts, see Mistretta v. United States, 488 U.S. 361, 426-427, 109 S.Ct. 647, 682-683, 102 L.Ed.2d 714 (1989) (SCALIA, J., dissenting), than with regard to the assigned functions of the Executive, see Morrison v. Olson, 487 U.S. 654, 708-712, 108 S.Ct. 2597, 2629, 101 L.Ed.2d 569 (1988) (SCALIA, J., dissenting). This central feature of the Constitution must be anchored in rules, not set adrift in some multifactored "balancing test"-and especially not in a test that contains as its last and most revealing factor "the concerns that drove Congress to depart from the requirements of Article III." Schor, supra, 478 U.S., at 851, 106 S.Ct., a 3257.
I would return to the longstanding principle that the public rights doctrine requires, at a minimum, that the United States be a party to the adjudication. On that basis, I concur in the Court's conclusion in Part IV of its opinion that the Article III concomitant of a jury trial could not be eliminated here. Since I join the remainder of the Court's opinion, I concur in its judgment as well.
Justice WHITE, dissenting.
The Court's decision today calls into question several of our previous decisions, strikes down at least one federal statute, and potentially concludes for the first time that the Seventh Amendment guarantees litigants in a specialized non-Article III forum the right to a jury trial. Because I cannot accept these departures from established law, I respectfully dissent.
* Before I explore the Court's approach to analyzing the issues presented in this case, I first take up the question of the precedent that the Court most directly disregards today, Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966). Though the Court professes not to overrule this decision, and curiously, to be acting in reliance on it, see ante, at 57-59, there is simply no way to reconcile our decision in Katchen with what the Court holds today.
In Katchen, the petitioner filed a claim in the bankruptcy proceeding to recover funds that he alleged were due to him from a bankrupt estate; respondent, the trustee, resisted paying the claims based on § 57(g) of the old Bankruptcy Act, which forbade payments to creditors holding "void or voidable" preferences. Petitioner claimed, much as petitioners here do, that the question whether prior payments to him were preferences was a matter that could not be adjudicated without the benefit of a jury trial. We rejected this claim, holding that "there is no Seventh Amendment right to a jury trial" on claims such as Katchen's. Katchen, 382 U.S., at 337, 86 S.Ct., at 476. Not only could the issue of preference be tried without a jury for the purpose of denying the filed claim pursuant to § 57(g), but a money judgment for the amount of the pre erence could be entered without a jury trial: "[I]t makes no difference, so far as petitioner's Seventh Amendment claim is concerned, whether the bankruptcy trustee urges only a § 57(g) objection or also seeks affirmative relief." Id., at 337-338, 86 S.Ct., at 477. This holding dispositively settles the question before us today: like the petitioner in Katchen, petitioners in this case have no Seventh Amendment right to a jury trial when respondent trustee seeks to avoid the allegedly fraudulent transfers they received.
In order to escape the force of Katchen § holding, the Court exploits the circumstances under which that decision was made. Most notably, at the time Katchen was decided, the Bankruptcy Act then in force (the 1898 Act) did not include actions to set aside voidable preferences among those proceedings covered by the Act. Thus, the clause of our opinion in Katchen, supra, at 336, 86 S.Ct., at 476, on which the Court today puts so much weight-"petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a federal plenary action by the trustee," see ante, at 58-simply stated the truism that, under the 1898 Act in force at that time, if petitioner had not presented his claim to the bankruptcy court, that court would have had no jurisdiction to perform a summary adjudication of the preference.
That entitlement, however, on which the Court so heavily relies, was solely the product of the statutory scheme in existence at the time. If it were not, the next phrase appearing in the Katchen decision would make little sense: "[W]hen the same issue [i.e., validity of a preference] arises as part of the process of allowance and disallowance of claims, it is triable in equity." Katchen, supra, at 336, 86 S.Ct., at 476. Katchen makes it clear that when Congress does commit the issue and recovery of a preference to adjudication in a bankruptcy proceeding, the Seventh Amendment is inapplicable. Only the limits of the 1898 Act prevented this from being the case in all instances, and thereby, left Katchen with the possibility of a jury trial right.
Today's Bankruptcy Code is markedly different. Specifically, under the Bankruptcy Amendments and Federal Judgeship Act of 1984 (1984 Amendments), an action to recover fraudulently transferred property has been classified as a "core" bankruptcy proceeding. See 28 U.S.C. § 157(b)(2)(H) (1982 ed., Supp. V). While in Katchen's day, it was only in special circumstances that adjudicating a preference was committed to bankruptcy proceedings, today, Congress has expressly designated adjudication of a preference or a fraudulent transfer a "core" bankruptcy proceeding. The portion of Katchen on which the Court relies-" 'petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a federal plenary action by the trustee,' " see ante, at 58-is therefore a relic of history. The same is true of the decision in Schoen- thal v. Irving Trust Co., 287 U.S. 92, 94-95, 53 S.Ct. 50, 51, 77 L.Ed. 185 (1932), which, in holding that "[s]uits to recover preferences constitute no part of the proceedings in bankruptcy," merely reflected the then-existing statutory scheme.
The Court recognizes the distinction between the earlier law and the present Code, but calls the change a "purely taxonomic" one that "cannot alter our Seventh Amendment analysis." Ante, at 61. I disagree for two reasons. First, the change is significant because it illustrates the state of the law at the time of Katchen, and explains why that case came out as it did. It is hypocritical for the Court to rely on Katchen § statement as to the existence of a jury trial entitlement for the petitioner's claim there, but then dismiss as "taxonomic" the change that wiped out that jury entitlement-or, at the very least, profoun ly shifted the basis for it.
More fundamentally, the inclusion of actions to recover fraudulently conveyed property among core bankruptcy proceedings has meaning beyond the taxonomic. As I explain in more detail below, see Part II-A, infra, we have long recognized that the forum in which a claim is to be heard plays a substantial role in determining the extent to which a Seventh Amendment jury trial right exists. As we put it in Katchen:
" '[I]n cases of bankruptcy, many incidental questions arise in the course of administering the bankrupt estate, which would ordinarily be pure cases at law, and in respect of their facts triable by jury, but, as belonging to bankruptcy proceedings, they become cases over which the bankruptcy court, which acts as a court of equity, exercises exclusive control. Thus a claim of debt or damages against the bankrupt is investigated by chancery methods.' " Katchen, supra, at 337, 86 S.Ct., at 477 (quoting Barton v. Barbour, 104 U.S. 126, 133-134, 26 L.Ed. 672 (1881)).
The same is true here, and it counsels affirmance under our holding in Katchen. In essence, the Court's rejection of Katchen-and its classification of the change effected by the 1984 Act as "taxonomic"-comes from its conclusion that the fraudulent conveyance action at issue here is not " 'part of the process of allowance and disallowance of claims.' " Ante, at 58 (quoting Katchen, 382 U.S., at 336, 86 S.Ct., at 476). The Court misses Katchen § point, however: it was the fact that Congress had committed the determination and recovery of preferences to bankruptcy proceedings that was determinative in that case, not just the bare fact that the action "happened" to take place in the process of adjudicating claims. And the same determinative element is present here, for under the 1984 Amendments, Congress unmistakably intended to have fraudulent conveyances adjudicated and recovered in the bankruptcy court in accordance with that court's usual procedures.
Perhaps in this respect the Court means something more akin to its later restatement of its position; namely, that the 1984 Amendments simply "reclassified a pre-existing, common-law cause of action that was not integrally related to the reformation of debtor-creditor relations." Ante, at 60. The Court further indicates that it will pay little heed to the congressional inclusion of avoidance and recovery proceedings in core bankruptcy jurisdiction since that choice was not made "because [Congress found that] traditional rights and remedies were inadequate to cope with a manifest public problem." Ibid. This misguided view of the congressional enactment is the crux of the problem with the Court's approach.
How does the Court determine that an action to recover fraudulently conveyed property is not "integrally related" to the essence of bankruptcy proceedings? Certainly not by reference to a current statutory definition of the core of bankruptcy proceedings-enacted by Congress under its plenary constitutional power, see U.S.C.onst., Art. I, § 8, cl. 4, to establish bankruptcy laws. As discussed in the preceding paragraph, this vision of what is "integrally related" to the resolution of creditor-debtor conflicts includes the sort of action before us today. See 28 U.S.C. § 157(b)(2)(H) (1982 ed., Supp. V). Nor does the Court find support for its contrary understanding in petitioners' submission, which concedes that the action in question here is brought to "recover monies that are properly part of the debtor's estate and should be ratably distributed among creditors," and that fraudulent transfers put at risk "the basic policy of non-discriminatory distribution that underlies the bankruptcy law." Brief for Petitioners 12. This, too, seems to belie the Court's view that actions to set aside fraudulent conveyances are not "integrally related" to reforming creditor-debtor relations.
Nor is the Court's conclusion about the nature of actions to recover fraudulently transferred property supportable either by reference to the state of American bankruptcy law prior to adoption of the 1978 Code, or by reference to the pre-1791 practice in the English courts. If the Court draws its conclusions based on the fact that these actions were not considered to be part of bankruptcy proceedings under the 1800 or 1898 Bankruptcy Acts (or, more generally, under federal bankruptcy statutes predating the 1978 Code), it has treated the power given Congress in Article I, § 8, cl. 4, as if it were a disposable battery, good for a limited period only-once the power in it has been consumed by use, it is to be discarded and considered to have no future value. The power of Congress under this Clause is plainly not so limited: merely because Congress once had a scheme where actions such as this one were solely heard in p enary proceedings in Article III courts-where the Seventh Amendment attached-does not impugn the legality of every other possible arrangement. See also Part II-B, infra. Perhaps instead the Court rests its conclusion on the practice of the 18th-century English courts. I take issue with this view of the old English law, below. But even if this were correct, I do not see why the Article I, § 8, power should be so restricted. See ibid.
One final observation with respect to Katchen. The Court attempts to distinguish Katchen by saying that a jury trial was not needed there because the funds in dispute were part of the "bankruptcy estate." Ante, at 57. "Our decision [in Katchen ] turned . . . on the bankruptcy court's having 'actual or constructive possession' of the bankruptcy estate," the Court writes. Ibid. (quoting 382 U.S., at 327, 86 S.Ct., at 471). But obviously in this case, the Bankruptcy Court similarly had " 'actual or constructive possession' of the bankruptcy estate"; certainly it had as much constructive possession of the property sought as it had of the preference recovered in Katchen. Thus, it is as true here as it was in Katchen that the funds in dispute are part of the "bankruptcy estate." The Bankruptcy Code defines that estate to be comprised of "all the following property, wherever located and by whomever held," including "[a]ny interest in property that the trustee recovers under" the provision authorizing actions to recover fraudulently transferred property. 11 U.S.C. §§ 541(a)(3), 550 (1982 ed., Supp. V). Consequently, even if the Court is accurate in pinpointing the dispositive fact in the Katchen decision, that fact equally points towards a ruling for the trustee here.
In sum, I find that our holding in Katchen, and its underlying logic, dictate affirmance. The Court's decision today amounts to nothing less than a sub silentio overruling of that precedent.
Even if the question before us were one of first impression, however, and we did not have the decision in Katchen to guide us, I would dissent from the Court's decision. Under our cases, the determination whether the Seventh Amendment guarantees a jury trial on petitioners' claims must turn on two questions: first, in what forum will those claims be heard; and second, what is the nature of those claims. A weighing of both of these factors must point toward application of the Seventh Amendment before that guarantee will attach.
To read the Court's opinion, one might think that the Seventh Amendment is concerned only with the nature of a claim. If a laim is legal, the Court announces, then the Seventh Amendment guarantees a jury trial on that claim. Ante, at 42, n. 4. This is wrong. "[H]istory and our cases support the proposition that the right to a jury trial turns not solely on the nature of the issue to be resolved but also on the forum in which it is to be resolved," Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 460-461, 97 S.Ct. 1261, 1272, 51 L.Ed.2d 464 (1977). Perhaps like Katchen, Atlas Roofing is no longer good law after today's decision. A further examination of the issue before us reveals, though, that it is the Court's decision today, and not our prior rulings, that is in error.
In the most obvious case, it has been held that the Seventh Amendment does not apply when a "suit at common law" is heard in a state court. Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 217, 36 S.Ct. 595, 596, 60 L.Ed. 961 (1916); Woods v. Holy Cross Hospital, 591 F.2d 1164, 1171, n. 12 (CA5 1979). Even with its exclusive focus on the claim at issue here, the Court does not purport to hold that a fraudulent conveyance action brought in state court would be covered by the Seventh Amendment, because that action was one at "common law" in the Court's view.
Nor does the Seventh Amendment apply in all federal forums. "[T]he Seventh Amendment is not applicable to administrative proceedings," for example. Tull v. United States, 481 U.S. 412, 418, n. 4, 107 S.Ct. 1831, 1835, n. 4, 95 L.Ed.2d 365 (1987). In these forums " 'where jury trials would be incompatible with the whole concept of administrative adjudication,' " the Seventh Amendment has no application. Atlas Roofing Co., supra, 430 U.S., at 454, 97 S.Ct., at 1268 (emphasis deleted) (quoting Pernell v. Southall Realty, 416 U.S. 363, 383, 94 S.Ct. 1723, 1733, 40 L.Ed.2d 198 (1974)). Thus, we have often looked at the character of the federal forum in which the claim will be heard, asking if a jury has a place in that forum, when determining if the Seventh Amendment's guarantee of a jury trial will apply there.
Most specifically relevant for this case, we have indicated on several previous occasions that bankruptcy courts-by their very nature, courts of equity-are forums in which a jury would be out of place. "[A] bankruptcy court . . . [is] a specialized court of equity . . . a forum before which a jury would be out of place," Atlas Roofing, supra, 430 U.S., at 454, n. 11, 97 S.Ct., at 1268; consequently, the Seventh Amendment has no application to these courts. "[T]he Court [has] recognized that a bankruptcy court has been traditionally viewed as a court of equity, and that jury trials would 'dismember' the statutory scheme of the Bankruptcy Act." Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974). Atlas Roofing, Curtis, and countless other cases have recognized that Congress has the power to "entrust enforcement of statutory rights to [a] . . . specialized court of equity free from the strictures of the Seventh Amendment." Curtis, supra, at 195, 94 S.Ct., at 1009. Prior cases emphatically hold that bankruptcy courts are such specialized courts of equity. Indeed, we have stated that "bankruptcy courts are inherently proceedings in equity." Katchen v. Landy, 382 U.S., at 336, 86 S.Ct., at 476; see also Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 697, 78 L.Ed. 1230 (1934).
Before today, this Court has never held that a party in a bankruptcy court has a Seventh Amendment right to a jury trial on its claims. Of course, the Court does not actually so hold today, preferring to be obtuse about just where petitioners are going to obtain the jury trial to which the Court deems them entitled. See ante, at 64. But in blithely ignoring the relevance of the forum Congress has designated to hear this action-focusing instead exclusively on the "legal" nature of petitioners' claim the Court turns its back on a long line of cases that have rested, in varying degrees, on that point. The Court's decision today ignores our statement in Atlas Roofing that "even if the Seventh Amendment would have required a jury where the adjudication of [some types of] rights is assigned to a federal court of law instead of an administrative agency," this constitutional provision does not apply when Congress assigns the adjudication of these rights to specialized tribunals where juries have no place. Atlas Roofing, 430 U.S., at 455, 97 S.Ct., at 1269. Indeed, we observed in Atlas Roofing that it was even true in "English or American legal systems at the time of the adoption of the Seventh Amendment [that] the question whether a fact would be found by a jury turned to a considerable degree on the nature of the forum in which a litigant found himself." Id., at 458, 97 S.Ct., at 1270.
The Court's decision also substantially cuts back on Congress' power to assign selected causes of action to specialized forums and tribunals (such as bankruptcy courts), by holding that these forums will have to employ juries when hearing claims like the one before us today-a requirement that subverts in large part Congress' decision to create such forums in the first place. Past decisions have accorded Congress far more discretion in making these assignments. Thus, Block v. Hirsh, 256 U.S. 135, 158, 41 S.Ct. 458, 460, 65 L.Ed. 865 (1921), found that a Seventh Amendment "objection amount[ed] to little" when Congress assigned what was, in essence, a common-law action for ejectment to a specialized administrative tribunal. We reiterated the vitality of Block v. Hirsh as recently as our decision in Pernell v. Southall Realty, supra, 416 U.S., at 383, 94 S.Ct., at 1733, and the principle was reaffirmed in several cases between these two decisions. See n. 10, infra. In Pernell, referring to Block v. Hirsh, we stated that "the Seventh Amendment would not be a bar to a congressional effort to entrust landlord-tenant disputes, including those over the right to possession, to an administrative agency." Pernell, supra, at 383, 94 S.Ct., at 1733. Yet to the extent that such disputes involve matters that are "legal" in nature-as they clearly do-the Court's decision today means that Congress cannot do what we said in Block and Pernell that it could.
Finally, the Court's ruling today ignores several additional reasons why juries have no place in bankruptcy courts and other "specialized courts of equity" like them. First, two of the principal rationales for the existence of the Seventh Amendment guarantee-the notions of "jury equity" and of juries serving as popular checks on life-tenured judges-are inapt in bankruptcy courts. As one scholar noted:
"We have kept the civil jury . . . as a check on the federal judge whose life tenure makes [him] suspect [under]
. . . the Populist traditions of this country. The function of the civil jury is to diffuse the otherwise autocratic power and authority of the judge.
"This . . . function . . . has little application to non-traditional civil proceedings such as those which occur in bankruptcy. . . . The condition of autocracy which would bring the underlying values of the Seventh Amendment [into force] is not present; the right to jury trial therefore has no application." Hearings on S. 558 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 100th Cong., 1st Sess., 5 2-573 (1987) (statement of Paul Carrington).
Others have made this same observation. See, e.g., id., at 684-685 (statement of Prof. Rowe). Cf., e.g., In re Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069, 1085 (CA3 1980). As respondent put it: "A jury in an equitable tribunal such as a bankruptcy court would in a sense be redundant." Brief for Respondent 22.
Beyond its redundancy, a requirement that juries be used in bankruptcy courts would be disruptive and would unravel the statutory scheme that Congress has created. The Court dismisses this prospect, and scoffs that it "can[not] seriously be argued that permitting jury trials" on this sort of claim would undermine the statutory bankruptcy scheme. Ante, at 61. Yet this argument has not only been "seriously" made, it was actually accepted by this Court in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). In Curtis, we observed that Katchen had rejected a Seventh Amendment claim (similar to the one before us today), due to our "recogni[tion] that a bankruptcy court has been traditionally viewed as a court of equity, and that jury trials would 'dismember' the statutory scheme of the Bankruptcy Act." Curtis, supra, 415 U.S., at 195, 94 S.Ct., at 1009; see also Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S., at 454, n. 11, 97 S.Ct., at 1268, n. 11. I fear that the Court's decision today will have the desultory effect we feared when Curtis was decided.
The above is not to say that Congress can vitiate the Seventh Amendment by assigning any claim that it wishes to a specialized tribunal in which juries are not employed. Cf. Atlas Roofing, supra, at 461, n. 16, 97 S.Ct., at 1272, n. 16. Our cases require a second inquiry-the one that the Court focuses exclusively upon concerning the nature of the claim so assigned.
To resolve this query, the Court properly begins its analysis with a look at English practice of the 18th century. See ante, at 43-47. After conducting this review, the Court states with confidence that "in 18th-century England . . . a court of equity would not have adjudicated" respondent's suit. Ante, at 47. While I agree that this action could have been brought at law-and perhaps even that it might have been so litigated in the most common case-my review of the English cases from the relevant period leaves me unconvinced that the chancery court would have refused to hear this action-the Court's conclusion today.
The Court itself confesses that "courts of equity sometimes provided relief in fraudulent conveyance actions." Ante, at 43. The Chancery Court put it stronger, though: "Courts of Equity have most certainly been in the habit of exercising a concurrent jurisdiction with the Courts of Law on the statutes of Elizabeth respecting fraudulent conveyances." Hobbs v. Hull, 1 Cox 445, 445-446, 29 Eng.Rep. 1242 (1788). Rarely has a more plain statement of the prevailing English practice at the time of ratification of the Seventh Amendment been discovered than this one; this alone should be enough to make respondent's case. Yet instead of accepting the pronouncement of the equity court about its own jurisdiction, this Court assumes the role of High Court of Historical Review, questioning the soundness of Hobbs' decision because it was issued without adequate supporting citations. Ante, at 45-46. A similar criticism is levied against another case from the same period, Ex parte Scudamore, 3 Ves.jun. 85, 30 Eng.Rep. 907 (Ch. 1796), which, as even the Court concedes, "demonstrates that fraudulent conveyance actions could be brought in equity." Ante at 45.
In addition to nitpicking respondent's supporting case law into oblivion, the Court's more general rejection of respondent's claim rests on two sources: a passing citation to a wholly inapposite case, Buzard v. Houston, 119 U.S. 347, 7 S. t. 249, 30 L.Ed. 451 (1886); and a more lengthy quotation from Professor Glenn's treatise on fraudulent conveyances. See ante, at 44. I will not deny that Professor Glenn's work supports the historical view that the Court adopts today. But notwithstanding his scholarly eminence, Professor Glenn's view of what the 18th-century English equity courts would have done with an action such as this one is not dispositive. Other scholars have looked at the same history and come to a different conclusion. Still others have questioned the soundness of the distinction that Professor Glenn drew-between suits to set aside monetary conveyances and suits to avoid the conveyances of land-as unwise or unsupported. See, e.g., In re Wencl, 71 B.R. 879, 883, n. 2 (Bkrtcy. Ct., DC Minn.1987). Indeed, just a few pages after it rests its analysis of the 18th-century case law on Professor Glenn's writing, the Court itself dismisses this aspect of Professor Glenn's historical conclusions. See ante, at 46, n. 5. The Court embraces Professor Glenn's treatise where it agrees with it and calls it authoritative, while rejecting the portions it finds troublesome.
Trying to read the ambiguous history concerning fraudulent conveyance actions in equity-a task which the Court finds simple today-has perplexed jurists in each era, who have come to conflicting decisions each time that the question has found relevance. Even in Schoenthal § time, and under the statutory regime applicable when that case was decided, many courts reviewing the same historical sources considered by us today had concluded that actions such as this one sounded in equity. See Schoenthal v. Irving Trust Co., 287 U.S., at 96, n. 3, 53 S.Ct., at 52, n. 3; Note, 42 Yale L.J. 450, 450-452 (1933). In more recent times, an impressive collection of courts have come to a similar conclusion, finding that actions to avoid fraudulent conveyances were historically considered equitable in nature.
In sum, I do not think that a fair reading of the history-our understanding of which is inevitably obscured by the passage of time and the irretrievable loss of subtleties in interpretation clearly proves or disproves that respondent's action would have sounded in equity in England in 1791.
With the historical evidence thus in equipoise-and with the nature of the relief sought here not dispositive either, see n. 8, supra-we should not hesitate to defer to Congress' exercise of its power under the express constitutional grant found in Article I, § 8, cl. 4, authorizing Congress "[t]o establish . . . uniform Laws on the subject of Bankruptcies." Congress has exercised that power, defining actions such as the one before us to be among the "core" of bankruptcy proceedings, triable in a bankruptcy court before a bankruptcy judge and without a jury. I would defer to these decisions.
The Court, however, finds that some (if not all) of these congressional judgments are constitutionally suspect. While acknowledging that "[t]o be sure, we owe some deference to Congress' judgment after it has given careful consideration to" such a legislative enactment, the Court declines to defer here because "respondent has adduced no evidence that Congress considered the constitutional implications of its designation of all fraudulent conveyance actions as core proceedings." Ante, at 61. See also ante, at 61-62, n. 16. This statement is remarkable, for it should not be assumed that Congress in enacting 28 U.S.C. § 157(b)(2)(H) (1982 ed., Supp. V) ignored its constitutional implications. The Court does not say from where it draws its requirement that the Congress must provide us with some indication that it considered the constitutional dimensions of its decision before acting, as a prerequisite for obtaining our deference to those enactments.
Moreover, the Court's cramped view of Congress' power under the Bankruptcy Clause to enlarge the scope of bankruptcy proceedings, ignoring that changing times dictate changes in these proceedings, stands in sharp contrast to a more generous view expressed some years ago:
"The fundamental and radically progressive nature of [congressional] extensions [in the scope of bankruptcy laws] becomes apparent upon their mere statement. . . . Taken altogether, they demonstrate in a very striking way the capacity of the bankruptcy clause to meet new conditions as they have been disclosed as a result of the tremendous growth of business and development of human activities from 1800 to the present day. And these acts, far-reaching though they may be, have not gone beyond the limit of congressional power; but rather have constituted extensions into a field whose boundaries may not yet be fully revealed." Continental Illinois National Bank v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 671, 55 S.Ct. 595, 604, 79 L.Ed. 1110 (1935).
See also Katchen v. Landy, 382 U.S., at 328-329, 86 S.Ct., at 472.
One of that period's leading constitutional historians expressed the same view, saying that the Framers of the Bankruptcy Clause "clearly understood that they were not building a straight-jacket to restrain the growth and shackle the spirits of their descendants for all time to come," but rather, were attempting to devise a scheme "which, while firm, was nevertheless to be flexible enough to serve the varying social needs of changing generations." C. Warren, Bankruptcy in United States History 4 (1935). Today, the Court ignores these lessons and places a straitjacket on Congress' power under the Bankruptcy Clause: a straitjacket designed in an era, as any reader of Dickens is aware, that was not known for its enlightened thinking on debtor-creditor relations.
Indeed, the Court calls into question the longstanding assumption of our cases and the bankruptcy courts that the equitable proceedings of those courts, adjudicating creditor-debtor disputes, are adjudications concerning "public rights." See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 71, 102 S.Ct. 2858, 2871, 73 L.Ed.2d 598 (1982); id., at 91, 102 S.Ct., at 2881 (REHNQUIST, J., concurring in judgment); id., at 92, 102 S.Ct., at 2882 (Burger, C.J., dissenting); id., at 108-118, 102 S.Ct., at 2890-95 (WHITE, J., dissenting). The list of lower court opinions that have reasoned from this assumption is so lengthy that I cannot reasonably include it in the text; a mere sampling fills the margin. Yet today the Court calls all of this into doubt merely because these cases have been subjected to "substantial scholarly criticism." Ante, at 56, n. 11. If no part of bankruptcy proceedings involve the adjudication of public rights, as the Court implies today, then all bankruptcy proceedings are saved from the strictures of the Seventh Amendment only to the extent that such proceedings are the descendants of earlier analogue heard in equity in 18th-century England. Because, as almost every historian has observed, this period was marked by a far more restrictive notion of equitable jurisdiction in bankruptcies, see, e.g., Warren, supra, at 3-5, the Court's decision today may threaten the efficacy of bankruptcy courts as they are now constituted. I see no reason to use the Seventh Amendment as a tool to achieve this dubious result.
Because I find the Court's decision at odds with our precedent, and peculiarly eager to embark on an unclear course in Seventh Amendment jurisprudence, I respectfully dissent.
Justice BLACKMUN, with whom Justice O'CONNOR joins, dissenting.
I agree generally with what Justice WHITE has said, but write separately to clarify, particularly in my own mind, the nature of the relevant inquiry.
Once we determine that petitioners have no statutory right to a jury trial, we must embark on the Seventh Amendment inquiry set forth in Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). First, we must determine whether the matter to be adjudicated is "legal" rather than "equitable" in nature, a determination which turns on the nature of the claim and of the relief sought. If the claim and the relief are deemed equitable, we need go no further: the Seventh Amendment's jury-trial right applies only to actions at law.
In this case, the historical inquiry is made difficult by the fact that, before the Federal Rules of Civil Procedure unified law and equity, parties might have been drawn to the equity side of the court because they needed its procedural tools and interim remedies: discovery, accounting, the power to clear itle, and the like. In light of the frequency with which these tools were likely needed in fraud cases of any kind, it is no surprise that, as Justice WHITE points out, fraudulent conveyance actions, even if cognizable at law, often would be found on the equity docket. See generally O. Bump, Conveyances Made by Debtors to Defraud Creditors § 532 (4th ed. 1896); F. Wait, Fraudulent Conveyances and Creditors' Bills §§ 59-60 (1884); W. Roberts, Voluntary and Fraudulent Conveyances 525-526 (3d Am. ed. 1845). This procedural dimension of the choice between law and equity lends a tentative quality to any lessons we may draw from history.
The uncertainty in the historical record should lead us, for purposes of the present inquiry, to give the constitutional right to a jury trial the benefit of the doubt. Indeed, it is difficult to do otherwise after the Court's decision in Schoenthal v. Irving Trust Co., 287 U.S. 92, 53 S.Ct. 50, 77 L.Ed. 185 (1932). Schoenthal turned on the legal nature of the preference claim and of the relief sought, id., at 94-95, 53 S.Ct., at 51, rather than upon the legal nature of the tribunal to which "plenary proceedings" were assigned under the 1898 Bankruptcy Act.
"With the historical evidence thus in equipoise," ante, at 87 (WHITE, J., dissenting), but with Schoenthal weighing on the "legal" side of the scale, I then would turn to the second stage of the Atlas Roofing inquiry: I would ask whether, assuming the claim here is of a "legal" nature, Congress has assigned it to be adjudicated in a special tribunal "with which the jury would be incompatible." Atlas Roofing, 430 U.S., at 450, 97 S.Ct., at 1266; see also Tull v. United States, 481 U.S. 412, 418, n. 4, 107 S.Ct. 1831, 1835, n. 4, 95 L.Ed.2d 365 (1987). Here, I agree with Justice WHITE that Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), as interpreted in Atlas Roofing, requires the conclusion that courts exercising core bankruptcy functions are equitable tribunals, in which "a jury would be out of place and would go far to dismantle the statutory scheme." Atlas Roofing, 430 U.S., at 454, n. 11, 97 S.Ct., at 1268, n. 11.
Having identified the tribunal to which Congress has assigned respondent's fraudulent conveyance claim as equitable in nature, the question remains whether the assignment is one Congress may constitutionally make. Under Atlas Roofing, that question turns on whether the claim involves a "public right." Id., at 455, 97 S.Ct., at 1269. When Congress was faced with the task of divining the import of our fragmented decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), it gambled and predicted that a statutory right which is an integral part of a pervasive regulatory scheme may qualify as a "public right." Compare H.R.Rep. No. 98-9, pt. 1, pp. 6, 13 (1983) (House Report), with S.Rep. No. 98-55, pp. 32-40 (1983) (Senate Report); see Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 586, 594, 105 S.Ct. 3325, 3335, 3339, 87 L.Ed.2d 409 (1985); see also id., at 599, 105 S.Ct., at 3342 (BRENNAN, J., concurring in judgment) ("[A] bankruptcy adjudication, though technically a dispute among private parties, may well be properly characterized as a matter of public rights"). Doing its best to observe the constraints of Northern Pipeline while at the same time preserving as much as it could of the policy goals of the major program of bankruptcy reform the decision in Northern Pipeline dismantled, see House Report, at 7, Senate Report, at 6-7, Congress struck a compromise. It identified those proceedings which it viewed as integral to the bankruptcy scheme as "core" (doing its best to exclude "Marathon-type State law cases"), and assigned them to a specialized equitable tribunal. Id., at 2.
I agree with Justice WHITE, ante, at 88-89, that it would be mproper for this Court to employ, in its Seventh Amendment analysis, a century-old conception of what is and is not central to the bankruptcy process, a conception that Congress has expressly rejected. To do so would, among other vices, trivialize the efforts Congress has engaged in for more than a decade to bring the bankruptcy system into the modern era.
There are, nonetheless, some limits to what Congress constitutionally may designate as a "core proceeding," if the designation has an impact on constitutional rights. Congress, for example, could not designate as "core bankruptcy proceedings" state-law contract actions brought by debtors against third parties. Otherwise, Northern Pipeline would be rendered a nullity. In this case, however, Congress has not exceeded these limits.
Although causes of action to recover fraudulent conveyances exist outside the federal bankruptcy laws, the problems created by fraudulent conveyances are of particular significance to the bankruptcy process. Indeed, for this reason, the Bankruptcy Code long has included substantive legislation regarding fraudulent conveyances and preferences. And the cause of action respondent brought in this case arises under federal law. See 11 U.S.C. §§ 548(a)(2) and 550(a). This substantive legislation is not a jurisdictional artifice. It reflects, instead, Congress' longstanding view that fraudulent conveyances and preferences on the eve of bankruptcy are common methods through which debtors and creditors act to undermine one of the central goals of the bankruptcy process: the fair distribution of assets among creditors. Congress' conclusion that the proper functioning of the bankruptcy system requires that expert judges handle these claims, and that the claims be given higher priority than they would receive on a crowded district court's civil jury docket (see Senate Report, at 3; House Report, at 7-8), is entitled to our respect.
The fact that the reorganization plan in this case provided that the creditor's representatives would bring fraudulent conveyance actions only after the plan was approved does not render the relationship between fraudulent conveyance actions and the bankruptcy process "adventitious." Ante, at 60, n. 15 (majority opinion). Creditors would be less likely to approve a plan which forced them to undertake the burden of collecting fraudulently transferred assets if they were not assured that their claims would receive expert and expedited treatment.
In sum, it must be acknowledged that Congress has legislated treacherously close to the constitutional line by denying a jury trial in a fraudulent conveyance action in which the defendant has no claim against the estate. Nonetheless, given the significant federal interests involved, and the importance of permitting Congress at long last to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal, I cannot say that Congress has crossed the constitutional line on the facts of this case. By holding otherwise, the Court today throws Congress into still another round of bankruptcy court reform, without compelling reason. There was no need for us to rock the boat in this case. Accordingly, I dissent.

## Notes

* ↑ As I will discuss more fully below, the Court's opinion can be read as overruling or severely limiting the relevant portions of the following cases: Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977); Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921); and Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672 (1881), plus perhaps some others.
* ↑ Like much else about its opinion, the Court is rather coy about disclosing which federal statute it is invalidating today. Perhaps it is 28 U.S.C. § 157(b)(2)(H) (1982 ed., Supp. V), the statute which includes actions to avoid or recover fraudulent conveyances among core bankruptcy proceedings; or § 157(b)(1), which permits bankruptcy judges to enter final judgments in core proceedings (given the inclusion of fraudulent conveyance actions among these proceedings); or perhaps it is 28 U.S.C. § 1411(b) (1982 ed., Supp. V), limiting jury trial rights in bankruptcy; or perhaps some part of Title 11 itself-or some combination of the above.
* ↑ The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."
* ↑ In addition to the points I make below, I disagree with the Court's portrayal of Congress' expansion of bankruptcy jurisdiction to include actions such as this one as an act of whimsy. In fact, when (in 1978) Congress first swept proceedings like the fraudulent conveyance suit before us into the jurisdiction of the bankruptcy courts, it was legislating out of a sense that "traditional rights and remedies were inadequate to cope with a manifest public problem":
* ↑ Since both of the relevant factors point against application of the Seventh Amendment here, resolving this case does not require offering some comprehensive view of how these factors are to be balanced. The ambiguity, however, is not of my creation, but rather, comes from the apparent inconsistency of our case law. For example, cases brought in state courts are never subject to the Seventh Amendment, no matter the nature of the claim; conversely, under the Court's decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the sort of state-law contract claim at issue there could never be assigned by Congress to anything other than an Article III tribunal, in which the Seventh Amendment would apply. See also post, at 93 (BLACKMUN, J., dissenting). Other cases look at both factors, without being altogether clear on their relative import.
* ↑ Our decision in Katchen, 382 U.S., at 336, 86 S.Ct., at 476-which described the 1898 Act as "convert[ing] [a] legal claim into an equitable claim"-is often cited for the same principle; i.e., as upholding "the power of Congress to take some causes of action outside the scope of the Seventh Amendment by providing for their enforcement . . . in a specialized court." See J. Friedenthal, M. Kane, & A. Miller, Civil Procedure 498 (1985).
* ↑ See, e.g., 4 Collier on Bankruptcy ¶ 548.10, p. 548-125 (15th ed. 1989); O. Bump, Conveyances Made by Debtors to Defraud Creditors § 532 (4th ed. 1896); F. Wait, Fraudulent Conveyances and Creditors' Bills §§ 56-60 (1884); Drake v. Rice, 130 Mass. 410, 412 (1881) (Gray, C.J.); W. Roberts, Voluntary and Fraudulent Conveyances 525-526 (3d Am. ed. 1845).
* ↑ See, e.g., In re Graham, 747 F.2d 1383, 1387 (CA7 1984); Damsky v. Zavatt, 289 F.2d 46, 53 (CA2 1961) (Friendly, J.) (an action by a bankruptcy trustee to "set aside a fraudulent conveyance has long been cognizable in equity"); Johnson v. Gardner, 179 F.2d 114, 116-117 (CA9 1949). See also In re Harbour, 840 F.2d 1165, 1172-1178 (CA4 1988); In re I.A. Durbin, Inc., 62 B.R. 139, 145 (SD Fla.1986); In re Hendon Pools of Michigan, Inc., 57 B.R. 801, 802-803 (ED Mich.1986); In re Southern Industrial Banking Corp., 66 B.R. 370, 372-375 (Bkrtcy Ct., ED Tenn.1986).
* ↑ Nor do I think it clear, as the Court seems to, that simply because the remedy sought by respondent can be expressed in monetary terms, the relief he seeks is therefore "legal" in nature, and not equitable. Ante, at 47-49.
* ↑ An irony of the Court's rebuke of Congress is that Congress' decision to include actions to avoid or recover fraudulent conveyances among "core" bankruptcy proceedings found its inspiration in the "Emergency Rule" drafted and issued by the Administrative Office of the United States Courts on December 3, 1982, to govern practice in the bankruptcy courts following our decision in Northern Pipeline. See Emergency Rule § d(3)(A) ("Related proceedings do not include . . . proceedings to set aside preferences and fraudulent conveyances"); see also Addison v. O'Leary, 68 B.R. 487, 491 (ED Va.1986) ("[T]he jurisdictional provisions of the 1984 Bankruptcy Amendments closely parallel the Emergency Reference Rule"); G. Treister, J. Trost, L. Forman, K. Klee, & R. Levin, Fundamentals of Bankruptcy Law § 2.01(a), p. 31 (2d ed. 1988) (describing this portion of the Emergency Rule as the "forerunner" of the 1984 Amendments).
* ↑ This is particularly unfortunate because today's ruling may be the first time ever that the Court has struck down a congressional designation of a particular cause of action as "equitable" in nature. See Note, Congressional Provision for Nonjury Trials, 83 Yale L.J. 401, 414-415 (1973) ("[T]he Court has never rejected a congressional indication that an action is equitable in nature"); but cf. Curtis v. Loether, supra ("re-interpreting" congressional enactment to respond to Seventh Amendment "concerns").
* ↑ Such cases decided since Northern Pipeline, from the Court of Appeals alone, include In re Harbour, 840 F.2d, at 1177-1178; In re Wood, 825 F.2d 90, 95-98 (CA5 1987); In re Mankin, 823 F.2d 1296, 1307-1308 (CA9 1987), cert. denied sub nom. Munn v. Duck, 485 U.S. 1006, 108 S.Ct. 1468, 99 L.Ed.2d 698 (1988); In re Arnold Print Works, 815 F.2d 165, 168-170 (CA1 1987); Briden v. Foley, 776 F.2d 379, 381 (CA1 1985); and In re Kaiser, 722 F.2d 1574, 1580, and n. 2 (CA2 1983). Many more such cases are found in the reports of the decisions of the District Courts and the Bankruptcy Courts.
* ↑ This is indicative of the Court's approach throughout its opinion: virtually every key holding announced today rests on a citation to scholarly authority, and not to any precedent of the Court. This includes the Court's holdings that the action at issue here was cognizable only at law in 18th-century England, ante, at 44; that fraudulent conveyance actions "more nearly resemble state-law contract claims . . . than they do creditors' hierarchically ordered claims to a pro rata share of the bankruptcy res," ante, at 56; and that Congress could not eliminate a jury trial right in this sort of action by placing it in "a specialized court of equity," ante, at 61-in short, the three critical holdings issued by the Court in its opinion.
* ↑ Because I do not believe that either petitioner is entitled to a jury trial under the Seventh Amendment, I do not reach the question whether petitioner Granfinanciera is deprived of any Seventh Amendment rights it might otherwise have due to its status as an instrument of a foreign sovereign. Like the Court, I would "leave for another day" the resolution of this difficult question. Ante, at 40.
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