Beyond the Limits of Equity Jurisprudence: No-Fault Equitable Subordination

28 Pages Posted: 26 Apr 2005

See all articles by Rafael I. Pardo

Rafael I. Pardo

Washington University in St. Louis - School of Law


In two 1996 decisions involving equitable subordination of claims in bankruptcy cases, United States v. Noland and United States v. Reorganized CF&I Fabricators of Utah, Inc., the Supreme Court did not answer the question of whether a bankruptcy court must find creditor misconduct before it equitably subordinates a creditor's claim. This Note argues that the Court should have established a bright-line rule that requires such a finding, using prepetition, nonpecuniary loss tax penalty claims of the IRS as a model. After showing that, as codified in the Bankruptcy Code, the doctrine of equitable subordination requires a finding of creditor misconduct, it analyzes circuit courts of appeals cases decided prior to Noland and Reorganized CF&I Fabricators that upheld equitable subordination of IRS prepetition tax penalty claims under a no-fault standard. The Note concludes that use of a no-fault standard of equitable subordination by a bankruptcy court constitutes impermissible judicial activism and that any unfairness resulting from the treatment of claims by the Bankruptcy Code should be remedied by Congress.

Keywords: bankruptcy, equitable subordination

Suggested Citation

Pardo, Rafael I., Beyond the Limits of Equity Jurisprudence: No-Fault Equitable Subordination. New York University Law Review, Vol. 75, No. 5, 2000, Available at SSRN:

Rafael I. Pardo (Contact Author)

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 585
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States

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