The Untapped Power of Bankruptcy's Wild Card: The United States Trustee

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Journal of Bankruptcy Law & Practice


bankruptcy, United States Trustee, Chevron case, Skidmore deference


The office of United States Trustee (Trustee) is unique in American jurisprudence: It combines the performance of administrative tasks in bankruptcy cases with the power to “raise and appear and be heard on any issue in any case or proceeding” under the Bankruptcy Code. Congress described the administrative work that includes convening and presiding at a creditors' meeting when a bankruptcy case begins, maintaining a panel of private parties eligible to serve as trustees in liquidation cases, and monitoring case progress. The statute however provides no elaboration on the power to “raise and appear and be heard on any issue,” which Congress gave to the Trustee in Section 307 of the Bankruptcy Code.This article suggests a framework for thinking about the Trustee's role and proposes that the extraordinary, apparently plenary, grant of standing to litigate that Congress has bestowed on each Trustee in Section should be viewed as an invitation for the Executive Office for Trustees to take advantage of its situation as an executive branch agency with such an agency's concomitant power to make policy. The mandate to litigate, in other words, should be exercised to directly affect the development of bankruptcy law.


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