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The Bankruptcy StrategistFeaturesBankruptcyLitigationUnited States Supreme Court

SCOTUS Passes on Bankruptcy Law Cases, Leaving Circuit Court Splits

By Corinne Ball
December 01, 2021

The U.S. Supreme Court began its 2021-2022 term this Fall with a schedule that includes no bankruptcy matters. Although four cases presenting important bankruptcy issues were teed up for the Court's consideration this term, the Court denied certiorari for each. These petitions involved open questions on states' powers to assert sovereign immunity in the bankruptcy arena, the extent to which federal bankruptcy law preempts certain state-law causes of action, and the judicially created doctrine of equitable mootness. Each of these areas involve splits among the circuit courts of appeals, influencing choice of venue and the extent to which bankruptcy decisions are subject to meaningful appeal.

A fifth bankruptcy-related certiorari petition remains pending and may still be taken up this term. Petitioners challenged a 2018 increase in the fees charged by the U.S. Trustee program as a violation of the Constitutional requirement of uniform bankruptcy laws. This is not likely among the issues at the top of most practitioner's wish lists, especially as Congress has already addressed the alleged Constitutional infirmity on a prospective basis.

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