Through the lense of cases, Prof. Mann examines how the Supreme Court has interpreted Bankruptcy Code in recent decades, positing that while bankruptcy cases are not among the “big questions” that attract the attention of law clerks and the media, they are not quite the “dogs” of the Supreme Court docket that tax cases might be. P. 2. Using the briefs, news archives and the available papers of the Justices themselves, Prof. Mann concludes that the Supreme Court decisions are “replete with back-and-forth negotiations about the precise wording of opinions, changes of position after the initial decision and substantial changes in doctrinal approach over time.”
From this Prof. Mann posits that bankruptcy is fairly unique in that it is an area of federal law “where political preconceptions have little power or salience”, but also where the Supreme Court has much less reliable or authoritative guidance from external sources than elsewhere, particularly as there is an “administrative vacuum” in the bankruptcy system. Where, for example, the EPA in questions of environmental law, the IRS regarding taxes or the Justice Department and States in criminal matters have clear institutional expertise and presence, with bankruptcy even while the Solicitor General does frequently appear, the interest of the government are more diffuse and often less knowledgeable about the actual functioning of the bankruptcy system.
Beyond this is Prof. Mann’s thesis that the Supreme Court has systematically under enforced the powers of bankruptcy under the Constitution and Code, whether in its contracted view of Article I bankruptcy judges in the line of cases from Marathon to Stern, Arkinson and Wellness to the priority that labor law, environmental issues and criminal prosecution were given in Bildisco, MidLantic, and Kelly, respectively. Prof. Mann does point to Katz, where the Supreme Court found the Bankruptcy Clause abrogated of state sovereign immunity, as a rare exception to this weak view of bankruptcy in the larger constitutional and statutory schema.
That the bulk of the cases reviewed are not those that are primarily focused on consumer issues, such as the more recent BAPCPA cases of Lanning, Ransom or Caukett, should not be surprising (nor that I am carping about this perennial slight) but still unfortunate. It would have been interesting and valuable to examine whether and to what extent pro-debtor/pro-creditor opinions, often most often apparent in consumer cases, match with other (imagined) characteristics of the Justices such as political affiliation, textualism, etc.
It is, however, gratifying that Prof. Mann recognizes that NACBA is, after the Solicitor General, the not only most frequent contributor of amicus briefs, with seventee, but that the Supreme Court has relied on sources contributed by NACBA in seven cases, compared with drawing on NABT sources five times and NACTT once.
The lack of a strong presence of the Executive Branch in bankruptcy proceedings that Prof. Mann identifies leads to the question of why the Executive Office of the United States Trustee system has not filed this vacuum. This is in part due to the mixed interests of the EOUST, in general fairness, prevention of debtor abuses, etc., but also shows that the under enforcement of the bankruptcy powers is present in not just the judicial branch. This does lead to the idea, routinely noted by those in the bankruptcy trenches, that the Supreme Court does not really understand how bankruptcy works.
For a copy of the book, please see:
Bankruptcy and the U.S. Supreme Court