By Adam J. Levitin, Georgetown University Law Center
Mark Berman is very kind to take notice of my article in his recent analysis of Law v. Siegel, posted on the HLS Bankruptcy Roundtable, here. We agree on a great deal about the case and scope of equity practice. A question persists about the scope of Law v. Siegel, though, and what it is proscribing when it reiterates the view that “whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code.” The question, then, is which non-Code practices are properly characterized as “equity”. My own view is that very little of modern bankruptcy practice is in fact “equity.”
Law v. Siegel, for example, should not affect such important non-Code practices as judicial interpretation of Bankruptcy Code statutory terms or judicially-created doctrines like substantial consolidation, which are sometimes mistakenly listed among the bankruptcy court’s “equitable powers”. As I wrote earlier, though, because such practices are interstitial and formed as broad principles, they are, in my view, better understood as part of a federal common law of bankruptcy, and distinguished from equitable powers, which are based on case-by-case specifics, as in Law v. Siegel. As interstitial powers, these lie outside any widening or narrowing of bankruptcy court’s equitable powers.
Moreover, the uncertainties about when actual equitable practices contradict statutes will continue. In cases of clear contradiction, the interpretive result will be easy. But cases where it is unclear whether a conflict truly exists will continue to invite negotiation between and among the parties because of the cost and uncertainty of litigation. Despite the Supreme Court’s best efforts, consideration of the equities will likely remain a part of our bankruptcy system.
For a fuller treatment of this subject, please continue here.