The Bankruptcy of Due Process: Nationwide Service of Process, Personal Jurisdiction and the Bankruptcy Code

42 Pages Posted: 28 Feb 2008 Last revised: 29 Apr 2009

Abstract

Congress' power to legislate is not unlimited and federal courts have an obligation to monitor Congress' exercise of its authority. In creating the current Fifth Amendment analysis, federal courts have fallen woefully short in defining the scope of congressional authority. Courts must develop an analytical framework that recognizes and responds to the varying strengths of the federal interest. This Article contends that in the bankruptcy context, the nature of the claim being litigated alters the balance under the Fifth Amendment analysis and acts as a limitation on Congress' otherwise broad power to authorize bankruptcy courts to exercise personal jurisdiction based on nationwide service of process. Specifically, when a bankruptcy court resolves a dispute that arises under state law, the federal interest is arguably at its lowest ebb and the defendant's liberty interests protected by the due process clause are brought to the forefront. In such instances, the bankruptcy court is enforcing state substantive rights not a federally-created right and thus the interests of the sovereign are diminished as are its coercive powers. In these circumstances, the current, one-size-fits-all Fifth Amendment analysis is ill-suited to protect the individual liberty interests at stake.

Keywords: Bankruptcy, Civil Procedure, Personal Jurisdiction, Fifth Amendment, Due Prcoess

Suggested Citation

Gardina, Jackie, The Bankruptcy of Due Process: Nationwide Service of Process, Personal Jurisdiction and the Bankruptcy Code. American Bankruptcy Institute Law Review, Vol. 15, No. 3, 2008, Vermont Law School Research Paper No. 09-04, Available at SSRN: https://ssrn.com/abstract=1098377

Jackie Gardina (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

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