Bankruptcy Step Zero

29 Pages Posted: 18 Feb 2013 Last revised: 4 Nov 2013

See all articles by Douglas G. Baird

Douglas G. Baird

University of Chicago Law School

Anthony J. Casey

University of Chicago Law School

Date Written: February 18, 2013

Abstract

In RadLAX Gateway Hotel, LLC v Amalgamated Bank, the Supreme Court’s statutory interpretation focuses on an emerging theme of its bankruptcy jurisprudence: the proper domain of the bankruptcy judge. While one might expect the Court to approach that question of domain as it has for administrative agencies, that is not the approach taken. This article explores the Court’s approach to bankruptcy’s domain. In doing so, we connect three principal strands of the Court’s bankruptcy jurisprudence. The first strand, embodied in Butner v United States, centers on the idea that the bankruptcy forum must vindicate nonbankruptcy rights. The second, most recently addressed in Stern v Marshall, focuses on the limits of bankruptcy judges in deciding and issuing final judgment on the issues before them. Bankruptcy judges must limit themselves to deciding issues central to the administration of the bankruptcy process. RadLAX is the continuation of a third strand that makes it plain that the Court reads ambiguous provisions of the Bankruptcy Code to narrow the range of decisions over which the bankruptcy judge may exercise her discretion — at least when the exercise of that discretion might impact nonbankruptcy rights. The resulting bankruptcy jurisprudence is in stark contrast with the Court’s approach in administrative law. This paper attempts to make sense of this state of affairs and connect it with the realities of bankruptcy practice today.

Keywords: Bankruptcy, absolute priority, Radlax, credit bidding

Suggested Citation

Baird, Douglas G. and Casey, Anthony Joseph, Bankruptcy Step Zero (February 18, 2013). 2012 Supreme Court Review 203; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 635; U of Chicago, Public Law Working Paper No. 419. Available at SSRN: https://ssrn.com/abstract=2220300

Douglas G. Baird

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9571 (Phone)
773-702-0730 (Fax)

Anthony Joseph Casey (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773.702.9578 (Phone)

HOME PAGE: http://www.law.uchicago.edu/faculty/casey

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