Anna Nicole Smith Goes Shopping: The New Forum Shopping Problem in Bankruptcy

33 Pages Posted: 11 Jun 2009 Last revised: 30 Mar 2011

G. Marcus Cole

Stanford Law School

Todd J. Zywicki

George Mason University - Antonin Scalia Law School, Faculty; PERC - Property and Environment Research Center

Date Written: June 10, 2009

Abstract

The American bankruptcy system is a hybrid of state law and federal bankruptcy law. Under the Butner principle, federal bankruptcy courts preserve non-bankruptcy law substantive entitlements in bankruptcy unless bankruptcy policies compel a contrary result.

This hybrid system, however, gives rise to the threat of forum-shopping if parties attempt to invoke bankruptcy jurisdiction for improper purposes, namely to rearrange non-bankruptcy entitlements to advance no coherent bankruptcy policy. Modern developments in bankruptcy law, as exemplified in the case of Marshall v. Marshall raise a novel threat of bankruptcy forum-shopping. Marshall involved the bankruptcy of tabloid starlet Anna Nicole Smith and her efforts to recover from the estate of deceased billionaire oilman J. Howard Marshall. Rather than deferring to the processes of the Texas probate court, Smith raced into bankruptcy court in California to capture a large share of Marshall’s estate. The technical issue in the case concerns whether the dispute constituted a “core” matter under federal bankruptcy law and thus the timing of the entry of a final judgment by the bankruptcy court. If the Marshall Bankruptcy Court’s decision is allowed to stand, it could set a precedent for rampant forum-shopping by dissatisfied parties seeking a more favorable resolution of claims in federal bankruptcy court than that to which they would be entitled under state law.

Keywords: “absolute priority” rule, core, creditors, David Skeel, debtors, Granfinanciera v. Nordberg, non-core, Northern Pipeline v. Marathon Pipeline, Thomas Jackson

JEL Classification: G33

Suggested Citation

Cole, G. Marcus and Zywicki, Todd J., Anna Nicole Smith Goes Shopping: The New Forum Shopping Problem in Bankruptcy (June 10, 2009). George Mason Law & Economics Research Paper No. 09-29; Stanford Law and Economics Olin Working Paper No. 376; Stanford Public Law Working Paper No. 1417621; Amsterdam Center for Law & Economics Working Paper No. 2009-11. Available at SSRN: https://ssrn.com/abstract=1417621 or http://dx.doi.org/10.2139/ssrn.1417621

G. Marcus Cole

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Todd J. Zywicki (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8091 (Phone)
703-993-8088 (Fax)

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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