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A Few Predictions for Justice Gorsuch's Bankruptcy Jurisprudence

Forthcoming, California Law Review Online

Univ. of Wisconsin Legal Studies Research Paper No. 1409

10 Pages Posted: 10 Apr 2017 Last revised: 20 Apr 2017

Megan McDermott

University of Wisconsin Law School

Date Written: April 9, 2017


With Justice Gorsuch poised to take the ninth seat on the Supreme Court, this essay predicts the ways in which he will impact one important area of the Supreme Court's jurisprudence: bankruptcy law. Justice Scalia played an outsized role in the development of modern bankruptcy law during his thirty years on the Court, so it's worth considering how his replacement might influence the next thirty years. Using Judge Gorsuch's published bankruptcy decisions, I argue that he will be an able replacement for Justice Scalia, but will also bring a more rounded approach to statutory interpretation questions. Specifically, I make three predictions. First, Justice Gorsuch will employ the same holistic approach to the Bankruptcy Code that Justice Scalia exemplified, thereby continuing to improve clarity and predictability. Second, Justice Gorsuch will support a historical understanding of Article III that may in turn reduce the uncertainty created by Stern v. Marshall regarding bankruptcy courts' powers. Third, Justice Gorsuch represents a substantial departure from Justice Scalia in terms of his willingness to consider legislative history. These predictions suggest that we may see some significant changes in bankruptcy practice over the coming years.

Keywords: Gorsuch, bankruptcy, Scalia, Supreme Court

Suggested Citation

McDermott, Megan, A Few Predictions for Justice Gorsuch's Bankruptcy Jurisprudence (April 9, 2017). Forthcoming, California Law Review Online; Univ. of Wisconsin Legal Studies Research Paper No. 1409. Available at SSRN:

Megan McDermott (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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