Rethinking Criminal Contempt in the Bankruptcy Courts
American Bankruptcy Law Journal, Forthcoming
55 Pages Posted: 15 Mar 2017 Last revised: 14 Apr 2017
Date Written: March 1, 2017
A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy judges entering criminal contempt orders. This is likely false; at best, it is unsupported by relevant Supreme Court precedent. The shibboleth seems to find its primary roots in misperceptions about Article III, which we try to disabuse. To be sure, there are serious (albeit maddeningly underspecified) constraints on the contempt power that sound in constitutional provenance, mostly under due process, but they have nothing to do with the status of bankruptcy judges. This article’s overdue analysis (it is hoped) will aid courts having to confront this issue in the future.
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