June 26, 2006


by Will

Also, I can't resist defending myself from PG below. Of course there's a federal policy in favor of uniform treatment of bankruptcy. The question is whether a policy in favor of uniformity can trump an enumerated or unenumerated constitutional right, in this case the nasty but well-entrenched right of a state not to be sued for damages without its consent. (A right that is best understood a right not to have judgments entered against it without personal jurisdiction, as Caleb Nelson has shown in the Harvard Law Review.)

The answer is no. To my knowledge nobody suggests that bankruptcy's policy in favor of uniformity enables it to decide cases without due process, although surely individualized process is sometimes at war with uniformity too.

June 26, 2006 10:05 PM | TrackBack
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