Dissension among the ranks--the courts are at odds over 11 U.S.C. (Section) 106 and its purported abrogation of sovereign immunity in the bankruptcy code

University of Memphis Law Review, The, Winter 2002 by Veach, Shauna Fuller

mention of bankruptcy.

Likewise, the In re Arnold court's determination that Congress acted within its Fourteenth Amendment powers when it enacted (section) 106 is unsubstantiated by precedent of the appellate courts.248 However, the policy reasons cited in In re Arnold have merit, as it could be extremely inconvenient for issues regarding states to be removed from the bankruptcy court's jurisdiction into state court. Most debtors would be better served having their bankruptcy issues adjudicated in the bankruptcy courts where the judges are familiar with and knowledgeable about the complex rules and statutes.

Additionally, there is the question of whether the state courts can actually assert jurisdiction over the states in bankruptcy matters. First, the federal courts have "original and exclusive jurisdiction" over bankruptcy matters.249 Second, Congress cannot use its Article I powers to compel a non-consenting state into a suit in its own state.250 However, the Eleventh Amendment and the Supreme Court's precedent are clear and unambiguous-states are entitled to sovereign immunity and cannot be forced to defend lawsuits brought by private citizens against them in federal court. Accordingly, even if there are policy issues regarding what is best for the bankruptcy court system, it seems likely that the Supreme Court would determine that states' sovereign immunity must prevail.251

SHAUNA FULLER VEACH*

* J.D., 2002, The University of Memphis, Cecil C. Humphreys School of Law. The Author begins a two-year judicial clerkship appointment with the Honorable Richard S. Stair, Jr., United States Bankruptcy Judge, in August 2002. The Author would like to thank Professor Steven Mulroy for his extraordinary insight and guidance with this Note, and Joey Bean for his assistance and friendship throughout this process. Additionally, she would like to thank the Honorable David S. Kennedy for his wisdom regarding this subject. Finally, the Author would like to offer a special thanks to her family for their love and support.