Issue:
With the nomination and appointment of Neil Gorsuch to the Supreme Court, a national debate reignited over “originalism,” the judicial philosophy that interpretation of the statutory and constitutional text should adhere to the original public meaning fixed at the time it was enacted, versus “stare decisis,” (Latin for “let it stand”) where precedents of previous Supreme Courts should be followed, even when they conflict with the original text. Two leading law scholars will present competing visions, both in the bankruptcy context (Dewsnup) and broader constitutional context.
Where:
21st Annual Great Debates at ABI’s Annual Spring Meeting, Marriott Marquis, Washington, D.C.
When:
Friday, April 21, 8:30-9:50 a.m. ET. Note that there will be three debates during the time allotted for the Great Debates program. This will be the concluding debate of the program.
Debate:
Despite Stare Decisis, Wrongly Decided Cases Like Dewsnup Should Be Overturned by the Supreme Court
Pro: Prof. Ilya Somin of the George Mason Antonin Scalia Law School.
Somin’s research focuses on constitutional law, property law, and the
study of popular political participation and its implications for
constitutional democracy.
Con: Prof. Bruce A. Markell of the Northwestern University School of
Law (Chicago) has an extensive background that includes nine years as a
U.S. Bankruptcy Judge for the District of Nevada and a former clerk for
then-judge Anthony M. Kennedy on the Court of Appeals for the Ninth
Circuit.
Background
With the death of Justice Antonin Scalia in 2016, America witnessed a debate over whether a strict “originalist” would take his place on the Supreme Court or whether a judge with a moderate philosophy adhering to Court precedent should be preferred. The Senate refused to hold a hearing or vote on Judge Merrick Garland’s nomination made during the last year of Obama's presidency, with the Republican majority insisting that the next elected president should fill the vacancy. President Trump nominated Judge Neil Gorsuch, a self-described originalist, who was ultimately confirmed by the Senate on April 7.
Could decisions that rely on stare decisis precedent rather than originalist interpretation be overturned by the Supreme Court? Two legal scholars provide their perspectives on this question within the bankruptcy context, and debate whether the Court could overturn controversial decisions like Dewsnup v. Timm, 502 U.S. 410 (1992). The Dewsnup ruling barred chapter 7 debtors from stripping a creditor's partially-secured claim down to the value of the collateral securing it. The Court extended the holding of Dewsnup decision in its 2015 ruling in Bank of America v. Caulkett, though a footnote by Justice Thomas indicated that the Dewsnup decision may be open to a future direct challenge to its continued validity. Beyond bankruptcy, the question is at the heart of all constitutional law today.
To attend the “Despite Stare Decisis, Wrongly Decided Cases Like Dewsnup Should Be Overturned by the Supreme Court” during the 21st Annual Great Debates at ABI’s 35th Annual Spring Meeting, please contact John Hartgen at jhartgen@abiworld.org or 703-894-5935. For more information on the Annual Spring Meeting, be sure to visit http://abiasm.org.
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ABI is the largest multi-disciplinary, nonpartisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI membership includes more than 12,000 attorneys, accountants, bankers, judges, professors, lenders, turnaround specialists and other bankruptcy professionals, providing a forum for the exchange of ideas and information. For additional information on ABI, visit ABI World at http://www.abi.org. For additional conference information, visit http://www.abi.org/calendar-of-events.