Certification of State-Law Questions by Bankruptcy Courts

American Bankruptcy Law Journal, Vol. 87-4, 2013

Illinois Public Law Research Paper No. 14-4

59 Pages Posted: 6 Oct 2013 Last revised: 14 Jan 2016

See all articles by Verity Winship

Verity Winship

University of Illinois College of Law

Date Written: October 1, 2013

Abstract

Bankruptcy courts must often decide questions of state law. Sometimes the law is settled, but other times the highest state court has never addressed the question. This Article examines when bankruptcy courts certify such open questions of state law to state court, a mechanism generally overlooked in the bankruptcy context. The lack of information about bankruptcy certification has contributed to its underuse. This Article remedies this problem by identifying existing language in state statutes and rules that permits certification from bankruptcy courts. Moreover, drawing on an original study of certification of state-law questions in bankruptcy proceedings, the Article demonstrates that the mechanism has been used over more than forty years across judicial districts, in a wide range of subject areas and types of bankruptcy. This Article not only provides this broad range of precedent for the use of certification by bankruptcy courts, but also proposes model language for a local rule and makes recommendations for efficient use of the process. Finally, tables in the Article’s appendix provide readers with easy access to state enabling language and to information about states’ and bankruptcy courts’ past practices.

Keywords: bankruptcy, bankruptcy court, bankruptcy judges, certification, state courts, federalism, state law, Erie, uniform law

JEL Classification: K00, K10, K41, K30, K22

Suggested Citation

Winship, Verity, Certification of State-Law Questions by Bankruptcy Courts (October 1, 2013). American Bankruptcy Law Journal, Vol. 87-4, 2013, Illinois Public Law Research Paper No. 14-4, Available at SSRN: https://ssrn.com/abstract=2335511

Verity Winship (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-244-8161 (Phone)

HOME PAGE: http://law.illinois.edu/faculty-research/faculty-profiles/verity-winship/

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