Superdelegation and Gatekeeping in Bankruptcy Courts
20 Pages Posted: 2 Nov 2015 Last revised: 10 Sep 2016
Date Written: November 24, 2015
America's bankruptcy court system runs on delegation, all the way down. Delegation of work to bankruptcy courts - the highest-volume part of the federal court system - has been analyzed extensively, but bankruptcy judges' delegation to others has not. For a brief contribution to a volume of scholarship celebrating Professor William C. Whitford, I look at two ends of a delegation spectrum in chapter 13 cases, a subject on which Professor Whitford has long maintained a scholarly interest. Many, if not most, courts lie in between these poles, but the discussion identifies practices that can be difficult to detect from standard legal research methodologies, and presents new research questions in administrative law and federal courts as well as in bankruptcy law. In some districts, judges hand over their courtrooms to private trustees, who then appear to "preside" over most chapter 13 hearings scheduled on the docket that day. Because those trustees are Executive Branch appointees, this allocation of work crosses branches of government (hence the "superdelegation" label). At the other end of the spectrum, one finds some judges who not only refrain from delegation, but impose their own hurdles to chapter 13 plan confirmation and the entry of a discharge order. The appellate process is rarely the antidote to such extra gatekeeping, particularly due to the financial state of most individual bankruptcy filers.
Keywords: bankruptcy, chapter 13, judges, federal courts, delegation, gatekeeper, supreme court, article III, discharge, payment plan
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