Volume 89.8 (December 2022) 1925-2186 | The University of Chicago Law Review

Articles

Against Bankruptcy Exceptionalism
Jonathan M. Seymour - Associate Professor, Duke University School of Law.

Bankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to which bankruptcy courts have broad authority to formulate orders that promote the ends of bankruptcy. Within the world of bankruptcy, in other words, it is commonly understood that bankruptcy is a special field that requires an exceptional approach—one rooted in the norms, commitments, and assumptions that underlie the values of the bankruptcy community.

I examine this disjunction and consider whether there is any principled justification for bankruptcy exceptionalism. I explain the sources of the disjunction and show how the bankruptcy courts’ exceptional approach has driven outcomes in the ongoing Purdue Pharma opioid crisis bankruptcy saga and other hotly contested and socially consequential cases. I conclude that there are many singular aspects of bankruptcy but none that justify treating it specially. Bankruptcy is distinctive, but it is not exceptional.

Comments

Here’s Your Number, Now Please Wait in Line: The Asylum Backlog, Federal Court Litigation, and Artificial Intelligence in Agency Adjudication
Youssef Mohamed - B.A. 2019, The Florida State University; J.D. Candidate 2023, The University of Chicago Law School.

Asylum seekers are individuals who flee to other countries to find sanctuary from the persecution suffered within the borders of their home countries. The U.N. High Commissioner for Refugees estimated that by mid-2021 there were nearly 4.4 million individuals actively seeking asylum worldwide, and the most recent data available surprisingly suggest that the United States granted asylum to only 31,429 persons in 2020.

The asylum system that is with us today was created when Congress enacted the Refugee Act with the goal of “respond[ing] to the urgent needs of persons subject to persecution in their homelands” and “provid[ing] a permanent and systematic procedure for the admission to this country” for refugees and asylum seekers. Despite what may have been the best of intentions, courts and scholars today recognize that the U.S. asylum process “is in tatters.”

Although there are two methods by which an individual can gain asylum in the United States, this Comment principally concerns itself with affirmative asylum—the process by which a foreign national affirmatively applies to the U.S. Citizenship and Immigration Services (USCIS) for asylum. At the beginning of 2022, there were 196,714 affirmative asylum claims pending, and many applicants have waited in a state of legal limbo for over five years to receive a decision on their claim. To escape the indefinite queue, some have started bringing claims of unreasonable delay under the Administrative Procedure Act (APA) to federal courts.

Because there are groups of asylum seekers who may be especially harmed by multiyear delays in adjudication, this Comment undertakes two separate but related tasks. First, it assesses whether the avenue for relief available to advocates and asylum seekers—federal court litigation—is actually viable for its purported ends. This Comment concludes that it is not. Second, it proposes a novel agency-side adjudicative mechanism, implemented through artificial intelligence technology, to more adequately provide reliable relief to especially vulnerable asylum seekers. The proposal offers a sketch of the new mechanism, wrestles with how artificial intelligence may be incorporated into it, and finally explores how the transparency and accountability of the agency’s automated decision-making may still be attained through current administrative law doctrines.

“Contrary to Law”: Determining the Scope of Qualifying Predicate Offenses for 18 U.S.C. § 545
Arjun Prakash - B.A. 2019, Yale University; J.D. Candidate 2023, The University of Chicago Law School.

This Comment seeks to resolve an ongoing dispute among courts regarding the correct interpretation of “contrary to law” in 18 U.S.C. § 545, a statute that criminalizes the unlawful importation of goods. In particular, courts disagree about whether “contrary to law” includes administrative regulatory violations, which would massively expand the applicability of § 545’s severe criminal penalties.

This Comment argues that analyzing previous versions of § 545 and applying canons of statutory interpretation provide support for a narrow interpretation of the statute. But these lines of analysis do not definitively establish that this interpretation is correct. As a result, this Comment considers the implications of the nondelegation doctrine, which provides a more conclusive resolution to the ongoing circuit split. Specifically, because of the structure of § 545 and because the statute itself provides no authority for agencies to promulgate new regulations, allowing administrative violations to serve as predicate offenses for § 545 would potentially permit agencies to independently use this statute to transform civil regulatory violations into criminal offenses. Therefore, to avoid separation of powers concerns, only regulatory violations that are explicitly criminalized by other statutes should qualify as predicate violations that can trigger § 545’s penalties.

State Policy in Federal Courts: Stabilizing the Burford Abstention Doctrine
Virginia Robinson - B.S. 2012, Auburn University; B.A. 2012, Auburn University; J.D. Candidate 2023, The University of Chicago Law School.

The federal abstention doctrines govern the narrow circumstances under which a district court can decline to hear a case even though it has proper jurisdiction. One of those doctrines—Burford abstention—has generated a morass of confusion over when it applies and what goals it is meant to achieve. To find a way out of the morass, this Comment looks at contemporaneous developments in doctrines of federal court review—and at the procedural history of Burford itself—to pinpoint the precise problem that Burford abstention was created to solve. It argues that the Burford Court was wary of federal courts exercising jurisdiction in cases like Burford where states had organized their systems of government in ways that did not neatly parallel the federal separation of powers. When state courts have been empowered to exercise complex administrative agency–style discretion, federal courts are not a comparable substitute. Judges in the federal system, who have life tenure, may not be able to adequately step into the policymaking shoes of state court judges, who are, for better or for worse, more democratically accountable.

This Comment proposes a straightforward test—the “Judicial Discretion Test”—that courts can use to determine whether Burford abstention is appropriate. The Test uses judicial discretion as a proxy for policymaking authority. Under the Judicial Discretion Test, if a state court judge hearing the case would have significantly more discretion under the state law at issue than a federal court judge would have when hearing a comparable case under federal law, the federal court should abstain in favor of state court. This Test is more administrable than the current framework under which courts perform ad hoc analyses, often cherry-picking particular facts from the original Burford case and looking at how closely those facts match the ones in the case at hand. As this Comment shows, it also better vindicates each of the concerns that motivated the original creation of the Burford abstention doctrine.

The Right to Exclude: People, Animals, and Pollution
Ariana Vaisey - B.A. 2017, The University of North Carolina at Chapel Hill; J.D. Candidate 2023, The University of Chicago Law School.

The Supreme Court has deemed the right to exclude one of the most fundamental property rights. Accordingly, the Court has offered the right to exclude heightened protection under the Takings Clause. However, the Court has left significant uncertainty about the scope of the right to exclude that is protected under takings doctrine. For instance, does the Takings Clause require compensation if the government, pursuant to the Comprehensive Environmental Response and Liability Act (CERCLA), requires a landowner to house another party’s pollutants?

This Comment draws from property theory and analytical jurisprudence to offer a new approach to takings analyses concerning the right to exclude. First, it argues that the right to exclude is strictly a Hohfeldian claim-right, or a legal position created by imposing a duty not to invade on someone else. An important implication of this definition for takings challenges to environmental regulation is that the property right to exclude is strictly a right against persons but not against animals or pollution. Second, this Comment addresses what it means for the right to exclude to be enforceable. It argues that government action that renders the right to exclude unenforceable should count as a taking. However, the right to exclude can be enforceable through a variety of means, so the right could remain enforceable absent a particular means of enforcement. Applying this framework to CERCLA, this Comment concludes that CERCLA does not abrogate landowners’ right to exclude.