Fair discretion in bankruptcy courts could be in jeopardy

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By Brian Shaw and Mark Radtke (September 20, 2021, 2:44 p.m. EDT) – The ability of a bankruptcy court to exercise its discretion is critically important to the fair and pragmatic objectives of bankruptcy case law. The same is true of the finality of bankruptcy court orders approving asset sales and confirmed plans. Both concepts are woven into the fabric of the bankruptcy system, and most practitioners would view them, and their related doctrines, as important tools in the general bankruptcy toolbox.

But concern is growing on the part of various sectors of the bankruptcy community that the misuse of these tools is becoming too common, if not the norm.

Congress and some higher courts have reported what they believe to be abuse …

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