Joseph E. Simmons

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Reconstructing the Bankruptcy Power: An Originalist Approach

The Bankruptcy Clause delimits Congress’s bankruptcy power, but its limits changed after ratification of the Thirteenth Amendment. Before, it enabled collective creditor remedies against merchant debtors; after, it provided relief to insolvent debtors threatened by economic oppression. Recognizing this development supplies new constitutional grounds for bankruptcy law’s “fresh start” policy.