Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
The most up-to-date version of this piece can be found in the Duke Law Scholarship
The stated purpose of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") is to "improve bankruptcy law and practice by restoring personal responsibility and integrity in the bankruptcy system and ensure that the system is fair for both debtors and creditors." Its legislative history stretches over almost a decade, but each iteration of it continued the same core features, the most predominant of which is a complex "means test" to determine whether a debtor may file a Chapter 7 case.
This Article seeks to identify the constitutional issues most likely raised by BAPCPA. It cannot identify all that might possibly arise, as experience with the law will generate many questions that I cannot presently anticipate. Nor does it attempt to provide definitive answers to the constitutional questions it raises. Instead, the objective is to identify for judges and practitioners the constitutional questions they are likely to see, summarize the applicable constitutional law, and anticipate the arguments that will be made.
Specifically, this Article focuses on the following constitutional questions that might arise under BAPCPA: Do BAPCPA's requirements for the ontent of attorney advertising violate the First Amendment? Does its regulation of the advice attorneys may give their debtor clients violate the First Amendment? Does its regulation of attorney conduct violate the Tenth Amendment or separation of powers? Would an involuntary Chapter 11 case that required payments over a five-year period constitute impermissible peonage? Does the means test violate the uniformity requirement or equal protection? Do the debtor disclosure requirements violate the right to privacy? Do the limits imposed on certain judicial actions violate separation of powers?
Date of Authorship for this Version
Chemerinksy, Erwin, "Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005" (2005). Duke Law School Faculty Scholarship Series. Paper 17.