This year's National Conference of Bankruptcy Judges featured a symposium on the role of equity under the Bankruptcy Code. "Senators" Melissa Jacoby, Ken Klee and Rich Levin convened a mock hearing in which they questioned professors Diane Lourdes Dick, Bruce Markell, Laura Coordes and Jay Westbrook about the role of equity. Some of the themes they covered included the difference between equity and discretion, the public interest and whether the Bankruptcy Court is a court of equity. A version of the symposium will be published in the American Bankruptcy Law Journal.
Prof. Dick surveyed 51 bankruptcy judges to find their views on the role of equity. She found that their answers fell into four clusters. The first group said that bankruptcy courts have inherent equitable powers but they are largely
supplanted by Code. The second group was similar. Banruptcy courts have inherent equitable
powers which are supplanted by the Code, but they can still exercise discretion to level playing field. The third group said that substantive discretion and equitable
powers are one in the same. The final group said that the Code
yields to equitable powers when judges are given discretion. The judges surveyed had a common belief that all federal judges possess
equitable powers that serve to protect the integrity of the court.
