Jevic's Promise: Procedural Justice in Chapter 11
93 Wash. L. Rev. Online 128 (2018)
15 Pages Posted: 27 Dec 2018
Date Written: December 10, 2018
In this Response to Jonathan Lipson's article, The Secret Life of Priority: Corporate Reorganization After Jevic, 93 Wash. L. Rev. 631 (2018)), I focus on Czyzewski v. Jevic Holding Corp.'s implications for procedural justice and corporate reorganization. In his article, Lipson explicitly links the chapter 11 process with the Bankruptcy Code’s substantive rules about priority, crafting a forceful argument about what procedural values the U.S. Supreme Court sought to uphold when it penned Jevic. In doing so, Lipson expounds on a broader truth about the co-option of corporate reorganization’s process in the name of value preservation. Procedural justice teaches that the process of adjudication is as important as the final outcome. If chapter 11 is to remain respected, the lessons of Jevic that Lipson brings to light must be acknowledged and discussed fully. This Response expands upon Lipson’s argument to add to the conversation about the place of procedural justice in corporate reorganization. It considers how Jevic’s emphasis on process should embolden bankruptcy courts to more rigorously assess chapter 11’s procedures. It also identifies two points at the beginning of chapter 11 cases that are ripe for analysis under Jevic’s process lens.
Keywords: Jevic, procedural justice, chapter 11, bankruptcy, reorganization, corporate reorganization, secured credit, debtor in possession financing, structured dismissals, 363 sales, process, legal process, aggregate litigation
JEL Classification: K22
Suggested Citation: Suggested Citation