Bankruptcy Appeal Barriers

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan was unlawful and have appealed. And they have been proven right: The Supreme Court recently found in its Purdue Pharma decision that bankruptcy courts lack the authority to approve the plan’s central legal device. Even so, those outraged creditors may receive nothing. The Boy Scouts argue that their appeal should be dismissed without reaching the merits because the plan is, in key respects, already implemented. And the existing case law surrounding bankruptcy appeal barriers offers considerable support for this outcome. This Article attempts both to assess the significance of bankruptcy appeal barriers and to evaluate potential justifications for them. These barriers matter deeply to affected litigants but also have systemic consequences. The constitutional legitimacy of the bankruptcy courts is predicated on their supervision by Article III judges. This supervision is substantially eroded by bankruptcy appeal barriers. Nor are these concerns wholly abstract. Bankruptcy judges are powerful. Appeal subjects the insular world of bankruptcy to outside scrutiny from generalist judges who do not necessarily buy into the precepts of bankruptcy culture and are not presented with the same in-the-moment incentives as bankruptcy judges. This Article additionally finds troubling the degree to which some appellate courts seem ready to resort to appeal barriers as an escape hatch to avoid deciding appeals even in quite simple cases, often involving unsophisticated parties. The justifications for bankruptcy appeal barriers, therefore, require a careful look. Normatively, this Article suggests that bankruptcy appeal barriers are on shaky ground. To make the case that bankruptcy appeal barriers could be sharply constrained or even abolished, this Article draws analogies both to the more general federal law of remedies, and to instances under state law—such as Delaware corporate law—where appellate courts must grapple with how to engage in an after-the-fact evaluation of an already consummated transaction

A Matter of Public Concern: Wright v. Dorsey and the Need For Speech Protections Beyond Anti-SLAPP Law

Wright v. Dorsey, a recent defamation case, demonstrates the limitations of anti-SLAPP ( Strategic Litigation Against Public Participation ) law and the need for supplemental speech protections. Joshua Wright, an antitrust law practitioner and former professor, sued Elyse Dorsey and Angela Landry for defamation. Dorsey and Landry had claimed that Wright used his position as their professor (and later employer) to pressure them into non-consensual sexual relationships; Wright acknowledged their relationships but claimed they were fully consensual, and that stating otherwise was defamatory. Anti-SLAPP law failed to protect Dorsey and Landry even though Wright\u27s lawsuit was ultimately a SLAPP. To better protect defendants against lawsuits like Wright, anti-SLAPP law should be supplemented by a but-for causation, test which considers whether the plaintiff would have suffered damages had the defendants not made the allegedly defamatory statements

The Military Uses of Artificial Intelligence

Fireside Chat: Lt Gen John N.T. “Jack” Shanahan, USAF (Ret.) former Director of the Department of Defense’s Joint Artificial Intelligence Center. Discussant: Prof Gary Corn, Director of the Technology, Law & Security Program and adjunct professor at American University’s Washington College of Law

Leadership Keynote

Introduction: Maj Gen Charlie Dunlap, USAF (Ret.), LENS Executive Director Speaker: Gen. Frank McKenzie, USMC (ret), Executive Director of the University of South Florida’s Global and National Security Institute (former Commander, USCENTCOM; author, The Melting Point: High Command and War in the 21st Century (2024)