Bankruptcy Courts' Equitable Discretion May Be In Danger

By Brian Shaw and Mark Radtke (September 20, 2021, 2:44 PM EDT) -- A bankruptcy court's ability to exercise discretion is critically important to the equitable and pragmatic goals of bankruptcy jurisprudence. So too is the finality of bankruptcy court orders approving asset sales and confirmed plans. Both concepts are baked into the fabric of the bankruptcy system, and most practitioners would consider them and their related doctrines important tools in the general bankruptcy toolbox.

But concern is growing from various sectors of the bankruptcy community that the misuse of these tools is becoming all too common, if not the norm.

Both Congress and some higher courts have flagged what they believe is abuse...

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