Bankruptcy Law's Treatment of Creditors' Jury-Trial and Arbitration Rights

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Issue Date
2009Author
Ware, Stephen J.
Publisher
St. John's School of Law & American Bankruptcy Institute
Type
Article
Article Version
Scholarly/refereed, publisher version
Version
http://ssrn.com/abstract=1550832
Metadata
Show full item recordAbstract
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.
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Citation
Stephen J. Ware, Bankruptcy Law's Treatment of Creditors' Jury-Trial and Arbitration Rights, 17 American Bankruptcy Institute Law Review 479-492 (2009).
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