The Right to Trial by Jury in Bankruptcy: Which Judge is to Preside
![handle is hein.journals/ambank63 and id is 61 raw text is: The Right To Trial By Jury In Bankruptcy:
Which Judge Is To Preside?
by
Conrad K. Cyr*
The United States Supreme Court has granted certiorari in Granfinanciera
S.A. v. Nordberg,' and a petition for certiorari has been filed in a similar case
arising out of the Fourth Circuit.2 The issues likely to be resolved authorita-
tively by the Supreme Court concern whether non-consenting defendants in
bankruptcy actions to set aside fraudulent conveyances are entitled to jury trial.
But that question is only part of the puzzle here. By far the more thorny is-
sue[ ],'3 is whether the bankruptcy judge may preside at a constitutionally-
guaranteed jury trial.
Never a man to mince words, former bankruptcy judge Daniel Cowans has
suggested that Itihe right to a jury trial in bankruptcy matters is not very clear.74
The ensuing discussion no doubt will vindicate Judge Cowans' judgment, even
if the pellucidity of its prose is not equal to that of the Cowans treatise.
How does the judge go about determining a timely demand for jury trial?
Some general background may be helpful. The Framers of the Constitution did
not address the right of trial by jury in civil cases. It was left to the First Judi-
ciary Act of September 24, 1789, to establish a right to jury trial in civil cases
at common law. On the very next day following enactment of the First Judici-
ary Act, Congress proposed that the legislatures of the states adopt the Sev
enth Amendment to the United States Constitution. The seventh amendment
was adopted in 1791.
The seventh amendment applies only to the federal courts, not to the state
courts.5 The seventh amendment requires a jury trial according to the rules
ChiefJudge, United States District Court for the District of Maine. Judge Cyr served as bankruptcy
judge from 1961 until his appointment as a district judge in 1981. He is a former president of the National
Conference of Bankruptcy Judges (1976-77). Judge Cyr founded The American Bankruptcy Law Journal
in 1971, and served as its Editor in Chief until his appointment to the district court in 1981.
This article is adapted from a paper presented by Judge Cyr on October 7, 1985, at the 59th Annual
Meeting of the National Conference of Bankruptcy Judges, in Scottsdale, Arizona.
lNordberg v. Granfinanciera, S.A. (In re Chase & Sanborn Corp.), 835 F.2d 1341 (11th Cir. 1988), cert.
granted, 108 S. Ct. 2818 (June 13, 1988) (No. 87-1716) (argued Jan. 9, 1989).
2Huffman v. Perkinson (In re Harbour), 840 F.2d 1165 (4th Cir. 1988), petitionfor cerr. flied 56 U.S.L.W.
3755 (U.S. Apr. 25, 1988) (No. 87-1760).
3Chase & Sanborn, 835 F.2d at 1348.
4CowANs oN BANtru Tcy § 1.6 (1986).
'Minneapolis & St. L. Ry. Co. v. Bombolis, 241 U.S. 211 (1916).](ViewImageLocal?handle=hein.journals/ambank63&div=9&collection=&method=preview&ext=.png&size=3)
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The Right to Trial by Jury in Bankruptcy: Which Judge is to Preside
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