BYU Law Review


Mason Spedding


This Note argues that reducing bankruptcy courts’ discretionary powers is a policy mistake because broad-sweeping legislation cannot adequately account for every circumstance presented by debtors. Bankruptcy is a unique field of law that requires unique rules; unlike a purely uniform bankruptcy system that is inherently over- and under-inclusive, a system of judiciously broad discretionary powers enables bankruptcy courts to find the optimal solutions to new issues on a case-by-case basis. Rather than restricting the discretionary powers of bankruptcy judges, Congress should enact a set of standards for judges to consider when evaluating individual cases. Under this system, judges would be rightfully circumscribed by the Bankruptcy Code, but they would no longer have to hide behind the mysterious cloak of equity to implement equitable solutions. Establishing a set of standards is the best way to effectively balance the important goals of uniformity—including predictability in the law, transparency, and judicial restraint—with a bankruptcy judge’s unique ability to provide equitable solutions through the exercise of discretionary powers.


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