The Bankruptcy Clause, the Fifth Amendment, and the Limited Rights of Secured Creditors in Bankruptcy

54 Pages Posted: 1 Nov 2014

See all articles by Charles Jordan Tabb

Charles Jordan Tabb

University of Illinois College of Law

Date Written: May 9, 2014

Abstract

It is part of the received wisdom in bankruptcy jurisprudence that the Fifth Amendment Takings Clause independently limits the exercise of the bankruptcy power under the Bankruptcy Clause. In particular, secured creditors in bankruptcy are assumed to enjoy a constitutional right to receive the full value of their collateral in the bankruptcy case. In this article, Professor Tabb asserts that the received wisdom is wrong. He argues that the Takings Clause of the Fifth Amendment does not and should not constrain the powers of Congress to modify the substantive rights of secured creditors under the Bankruptcy Clause. Instead, his thesis is that the only meaningful limits on the modification of substantive rights of stakeholders pursuant to the bankruptcy power are those that inhere in the Bankruptcy Clause itself.

Suggested Citation

Tabb, Charles Jordan, The Bankruptcy Clause, the Fifth Amendment, and the Limited Rights of Secured Creditors in Bankruptcy (May 9, 2014). University of Illinois College of Law Legal Studies Research Paper No. 15-01, Available at SSRN: https://ssrn.com/abstract=2516841 or http://dx.doi.org/10.2139/ssrn.2516841

Charles Jordan Tabb (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-333-2877 (Phone)
217-244-1478 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
123
Abstract Views
1,026
rank
261,142
PlumX Metrics