Stigma, Prestige and the Cultural Context of Debt: A Critical Analysis of the Bankruptcy Judge’s Non-Article III Status

Abstract

The decision by Congress to maintain and establish the U.S. Bankruptcy Court as a non-Article III tribunal is an arbitrary decision manifesting the legal field’s professional hierarchy. This hierarchy reserves the coveted federal judicial power “to say what the law is” for Article III judges and assigns bankruptcy judges as an adjunct to the district court. Socio-cultural theory reveals this legal field decision results from bias and prejudice against bankruptcy law and legal practitioners, due to social stigma emanating from Puritanical notions of debt as sin. Collectively-held cultural beliefs about the nature of financial failure and the debtor permeate the legal field and influence the perceptions of legal actors. These perceptions paired with the history of bankruptcy practice diminish the status and power of the Bankruptcy Court.