Document Type
Introduction
Publication Title
ABI Law Review
Publication Date
2007
Volume
15
First Page
1
Abstract
(Excerpt)
A symposium on bankruptcy and state sovereign immunity was held on February 9, 2007 at St. John's University School of Law. Scholarly symposium papers included in this issue of the American Bankruptcy Institute Law Review were prepared by five participants who are experts on issues arising from the intersection of constitutional and bankruptcy law with state sovereign immunity from suits in federal courts. Three of the participating authors, who explore in their articles the theory and history of the jurisprudence of sovereign immunity and the Eleventh Amendment, are outstanding academics who have previously written extensively on this subject—Professor Ralph Brubaker of the University of Illinois College of Law; Professor Martin H. Redish of Northwestern University School of Law; and Professor Thomas E. Plank of the University of Tennessee College of Law. The other participating authors are Hon. Randolph J. Haines, Bankruptcy Judge of the District of Arizona, a frequent author of judicial opinions and law review commentary on the topic; and Susan M. Freeman, Esq., a partner of Lewis & Roca LLP in Phoenix, Arizona, and frequent lecturer and author on bankruptcy law topics.
This symposium was inspired by the Supreme Court's decision last year in Central Virginia Community College v. Katz (hereinafter "Katz"). In a five to four decision, the Court held that a State did not have sovereign immunity from a lawsuit brought by a bankruptcy trustee in a bankruptcy court to void a preferential transfer and recover a money judgment for the amount of the transfer. Katz was a surprise because scarcely ten years before, in Seminole Tribe, a non-bankruptcy case, the Court broadly ruled that Congress did not have the power to abrogate state sovereign immunity by a statute enacted pursuant to its powers under Article I of the Constitution, and even stated in dicta that its ruling upholding state sovereign immunity applied to suits to enforce bankruptcy legislation. Katz's new direction was premised on the notion that by virtue of the Constitution itself, the States surrendered immunity from suit for a money judgment to recover a preferential transfer. Katz's theory was that such a judgment, as a historical matter, was ancillary to the in rem jurisdiction of bankruptcy. And, the States' Eleventh Amendment immunity from federal court suits did not bar such a suit because that amendment did not restore any immunity of the States that was surrendered by virtue of the Constitution itself.
Comments
Reprinted with permission of the American Bankruptcy Institute Law Review. Originally published at 15 AM. BANKR. INST. L. REV. 1 (2007).