Embed Size (px)
DESCRIPTION
Bankruptcy law treats the constitutional jury right with less deference than the, merely statutory, right to arbitrate. But this apparent anomaly is actually the plausible result of a limitation within the Seventh Amendment jury right, its applicability only to claims at law but not claims in equity. The right to arbitrate is not similarly limited. So creditors seeking to arbitrate claims by and against debtors in bankruptcy are not defeated by longstanding holdings placing such claims on the equity side of the law/equity line. In contrast, creditors seeking jury trials of claims by and against debtors in bankruptcy are defeated by such holdings.
Citation preview
Bankruptcy Law’s Treatment of Creditors’
Jury-Trial and Arbitration Rights
Stephen J. WareProfessor of Law
University of Kansas
While judges ordinarily adjudicate disputes in bankruptcy, creditors sometimes argue that they have a right to a jury trial or to arbitration.
Creditor’s arguments
Jury Arbitration
Claim by the creditor
Claim against the creditor
Creditor’s arguments
Jury Arbitration
Claim by the creditor
NO Sometimes
Claim against the creditor
Waiver v.
Law/Equity Distinction
Creditor’s arguments
Jury Arbitration
Claim by the creditor
NO Sometimes
Claim against the creditor
Not if creditor has filed proof of claim
Sometimes, even if creditor has filed PoC
Waiver v.
Law/Equity Distinction
