A Few Predictions for Justice Gorsuch's Bankruptcy Jurisprudence
8 California Law Review Online 40 (2017)
12 Pages Posted: 10 Apr 2017 Last revised: 19 Jan 2018
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
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