Alive at 25? A short review of the Supreme Court's bankruptcy jurisprudence, 1979-2004

American Bankruptcy Law Journal

Volumn 78, Issue 4, 2004, Pages 373-395

  Dembart, Lee ^b   Markell, Bruce A ^a  

^a UNIVERSITY OF NEVADA   (United States)

^b NONE

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EID: 78649986788     PISSN: 00279048     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (17)

1. Although reorganization principles were promulgated for various types of entities as early as 1933, the enactment of the Chandler Act in 1938 consolidated and codified those principles. Pub. L. No. 75-696, 52 Stat. 840 (1938) (repealed 1978). For a review of this phase of bankruptcy history, see Bruce A. Markell, Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations, 44 Stan. L. Rev. 69, 84-87 (1991).
2. See, eg. Consolidated Rock Prods. Co. v. Du Bois, 312 U.S. 510 (1941);
3. Case v. Los Angeles Lumber Prods., 308 U.S. 106 (1939).
4. See, e.g., Vanston Bondholders' Protective Comm. v. Green, 329 U.S. 156 (1946)
5. Id. at 244- In the last 25 years, the Court has cited Local Loan Co. three times, Grogan v. Garner, 498 U.S. 279 (1991);
6. Granfinanciera, S. A. v. Nordberg, 492 U.S. 33 (1989);
7. Brown v. Felsen, 442 U.S. 127 (1979), and quoted the above passage just once.
8. See Brown v. Felsen, 442 U.S. 127, 128 (1979).
9. See, e.g., Thomas L. Friedman, The Lexus and the Olive Tree 369-70 (2000) (Updated and expanded Anchor Books edition) ("[The person designing the best economy to compete in the new global era] would have designed a country with a system of bankruptcy laws and courts that actually encourages people who fail in a business venture to declare bankruptcy and then try again, perhaps fail again, declare bankruptcy again, and then try again, before succeeding and starting the next Amazon.com-without having to carry the stigma of their initial bankruptcies for the rest of their lives").
10. "[A] valuation of the debtor's business . will almost always be required under Section 1129(b) in order to determine the consideration to be distributed under the plan." H.R. Rep. 595, 95th Cong., 1st Sess. 414 (1977);
11. Several excellent and detailed studies have been published of the Court's statutory interpretation in bankruptcy cases, and we do not presume to be able to add much to what those authors have found. Here we present a survey of what the Court has done over the last 25 years and where it leaves the law. If you want to know more, see, e.g., Karen M. Gebbia-Pinetti, Interpreting the Bankruptcy Code: An Empirical Study of the Supreme Court's Bankruptcy Decisions, 3 Chap. L. Rev. 173 (2000)
12. and Charles Jordan Tabb and Robert M. Lawless, Of Commas, Gerunds, and Conjunctions: The Bankruptcy Jurisprudence of the Rehnquist Court, 42 Syracuse L. Rev. 823 (1991).
13. For a broader discussion of Justice Antonin Scalia's insistence on a textualist approach to statutory interpretation, including but not limited to bankruptcy cases, see William N. Eskridge, Jr., Textualism, the Unknown Ideal? A Matter of Interpretation, 96 Mich. L. Rev. 1509 (1998) (book review).
14. A stitch in time saves nine," but "haste makes waste." For a comprehensive discussion of this principle in law, including 28 examples of contradictory principles of statutory interpretation, see Karl Llewellyn's classic article, Remarks on the Theory of Appellate Derision and the Rules or Canons about how Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950).
15. Babyhnian Talmud, Baba Mezia, 59b.
16. Deuteronomy 30:12.
17. This Talmudic story is frequently told by Alan M. Dershowitz in speeches and sometimes in print. See, e.g., Dershowitz, Has the Supreme Court Gone Too Far? A Symposium, Commentary, Oct., 2003, at 32.