Justice Scalia's Bankruptcy Jurisprudence: The Right Judicial Philosophy for the Modern Bankruptcy Code?

81 Pages Posted: 13 Mar 2017 Last revised: 19 Jan 2018

See all articles by Megan McDermott

Megan McDermott

University of Wisconsin Law School

Date Written: March 10, 2017


This article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era, and the article argues that his brand of rule-based textualism was a particularly good fit for bankruptcy law.

Specifically, four themes emerge from Justice Scalia’s bankruptcy writings: a holistic approach to the Bankruptcy Code, a Kantian commitment to textual justice, a vocal crusade against legislative history, and an insistence on clear rules to delineate bankruptcy judges’ powers. A review of Justice Scalia’s decisions exemplifying these themes leads to some surprising and perhaps counterintuitive conclusions about the ways in which his approach to the Bankruptcy Code often benefited individual debtors over larger creditors, particularly consumer lenders. The article argues that each aspect of this philosophy promotes predictability and clarity, thereby furthering the ultimate purposes of the Bankruptcy Code.

But despite these advantages, Justice Scalia’s philosophy has not been widely embraced. To help explain this paradox, the article identifies several bankruptcy decisions in which Justice Scalia did not faithfully follow his own rules, thereby muddying his overall message to lower courts and litigants. Nonetheless, the article concludes by urging bankruptcy judges and practitioners to look past these exceptions and continue to press a rule-based textualist approach.

Keywords: Scalia, Supreme Court, Bankruptcy, Textualism, Regulation and Business Law

JEL Classification: K2

Suggested Citation

McDermott, Megan, Justice Scalia's Bankruptcy Jurisprudence: The Right Judicial Philosophy for the Modern Bankruptcy Code? (March 10, 2017). 2017 Utah Law Review 939 (2017), Univ. of Wisconsin Legal Studies Research Paper No. 1405, Available at SSRN: https://ssrn.com/abstract=2931159

Megan McDermott (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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