Section II of this paper briefly sets out the jurisdictional scheme of the 1984 Act. Section III presents and describes the argument that the "related to" bankruptcy jurisdiction is unconstitutional. Statements in the legislative history indicate that some legislators believed it would be unconstitutional for a federal court to take jurisdiction in a non-diversity case with Marathon-type state law issues. Several cases have adopted this reasoning and have held that in order for a federal court to have "related to" bankruptcy jurisdiction there must be an independent basis for federal jurisdiction. The Supreme Court cases supporting "related to" jurisdiction are set out in section IV. Section V examines the "original ingredient" theory of Osborn v. Bank of the United States and discusses pendent and ancillary jurisdiction as bases for the "related to" jurisdiction. Although courts that uphold "related to" jurisdiction reach the correct result, justifying the federal court's "related to" bankruptcy jurisdiction on grounds of pendent or ancillary jurisdiction strains those concepts as we know them. Section VI discusses various theories of protective jurisdiction, articulates the most persuasive of those theories, and explains how the political process is the most acceptable check on federal power when protective jurisdiction is involved. Section VII reexamines the "related to" bankruptcy jurisdiction in the context of the political process check on protective jurisdiction, concluding that the compromise Congress reached between federal and state interests in the 1984 Act shows that the political process can function as a meaningful check on federal intrusion into state judicial sovereignty. Section VIII contains some brief conclusory remarks.
Thomas C. Galligan, Jr., Article III and the "Related to" Bankruptcy Jurisdiction: A Case Study in Protective Jurisdiction, 11 SEATTLE U. L. REV. 1 (1987).