Defiance of Bankruptcy

Vanderbilt Law Review, November 1999

Posted: 3 Aug 1999

See all articles by Kenneth N. Klee

Kenneth N. Klee

University of California, Los Angeles (UCLA) - School of Law

James O. Johnston

Hennigan, Mercer & Bennett

Eric Winston

Stutman, Treister & Glatt


This article examines the new doctrine of constitutional sovereign immunity, as well as Eleventh Amendment immunity, with a particular emphasis on bankruptcy law. After giving some examples of State defiance of bankruptcy law, the article reviews traditional limitations to sovereign immunity and discusses their viability or lack of viability in the wake of Seminole Tribe and Alden. Among other things, the article analyzes the scope of State protection, waiver of immunity in the wake of the Supreme Court's decision in College Savings, issuance of Ex parte Young injunctions, the possible In rem exception to sovereign immunity, and the Takings Clause.

The article concludes by proposing federal legislative solutions to overcome Seminole Tribe and Alden in the bankruptcy context. Specifically, the article considers but generally rejects reenactment of the Bankruptcy Code under the Fourteenth Amendment. The article recommends amendments to the Bankruptcy Code authorizing the United States trustee to sue in the name of the United States, providing for an automatic Ex parte Young injunction, and disallowing a State's claim absent waiver of immunity. The Spending Clause is also examined. The article concludes by applying principles of federalism to evaluate the proposed legislative solutions.

Suggested Citation

Klee, Kenneth N. and Johnston, James O. and Winston, Eric, Defiance of Bankruptcy. Vanderbilt Law Review, November 1999. Available at SSRN:

Kenneth N. Klee (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-825-7460 (Phone)
310-206-7010 (Fax)

James O. Johnston

Hennigan, Mercer & Bennett ( email )

601 South Figueroa Street
Suite 3300
Los Angeles, CA 90017
United States
213-694-1200 (Phone)
213-694-1234 (Fax)

Eric Winston

Stutman, Treister & Glatt ( email )

3699 Wilshire Blvd.
Suite 900
Los Angeles, CA 90010
405-231-4866 (Phone)

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