In the aftermath of Seminole: waiver of sovereign immunity under Section 106(b) of the Bankruptcy Code

Article Abstract:

The Supreme Court's 1996 ruling in Seminole Tribe v. Florida may profoundly affect the federal bankruptcy system. In Seminole, the Court held that Congress cannot require states to waive their Eleventh Amendment sovereign immunity. Because Bankruptcy Code Section 106(b) also mandates waiver of sovereign immunity, its constitutionality is doubtful. Unless states consent to litigation in the federal courts, trustees and debtors will have to divide bankruptcy cases between federal and state forums.

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Abrogating sovereign immunity pursuant to its Bankruptcy Clause power: Congress went too far!

Article Abstract:

Congress exceeded its authority under the Bankruptcy Clause of the Constitution in its attempt to abrogate the sovereign immunity of states by amending the Bankruptcy Code's provision on jurisdiction in section 106. The 1996 U.S. Supreme Court decision in Seminole Tribe v. Florida correctly overruled previous cases to reestablish Constitutional limits on Congressional authority with respect to abrogation of state sovereign immunity.

Legislative Bodies, Bankruptcy Law, Other Justice, Public Order, and Safety Activities, National Legislative Bodies

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Getting to waiver: a legislative solution to state sovereign immunity in bankruptcy after Seminole Tribe

Article Abstract:

The author discusses the concept of waiver of sovereign immunity in bankruptcy cases. The Supreme Court's Seminole Tribe v. Florida decision and its implications for s. 106(a) of the Bankruptcy Code are addressed. The concept of voluntary waiver on behalf of a state is analyzed.

States, Interpretation and construction, Native Americans, Native North Americans, Waiver (Civil procedure)

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