Bankruptcy Federalism: A Doctrine Askew

Abstract

This Article will begin with the Anti-Injunction Act and its bankruptcy exception. This Article will then discuss Younger's judicially-created abstention doctrine that all but repeals the statute's exceptions, as well as the interpretation given Younger by Mitchum v. Foster, which was decided the following year. While convincing arguments against Younger have been made for decades, this Article's goal is more modest-to demonstrate why the bankruptcy exception to the Anti-Injunction Act should be given its full force, Younger (and Mitchum) to the contrary notwithstanding.

This Article will then review the Bankruptcy Code's injunction provisions, demonstrating that, notwithstanding an exception to the automatic stay, criminal proceedings rooted in statutes having a collection, rather than penal, purpose are not immune from the reach of a bankruptcy court injunction designed to protect a debtor's right to discharge.

Finally, this Article will demonstrate that certain restitutionary obligations should be dischargeable in Chapter 7 bankruptcy cases. To do so, this Article will undertake the text-based analysis of the Code eschewed by the Supreme Court when, undoubtedly misled by Younger, it held to the contrary in Kelly v. Robinson.