Journal Title

ConLawNOW

Volume

18

Issue

1

First Page

170

Document Type

Article

Publication Information

2026

Abstract

In Keathley v. Buddy Ayers Construction, Inc., the Supreme Court considered the (decidedly) unglamorous issue of the proper standard for determining when judicial estoppel may be applied. The case (perhaps unsurprisingly) did not attract protestors on the courthouse steps (there were no hand-painted signs demanding “END ESTOPPEL NOW!”—go figure), nor did it pique the interest of talking-head cable news pundits (apparently, a semi-obscure equitable doctrine isn’t a ratings-grabbing red v. blue state issue—again, go figure). However, those of us in the bankruptcy law world knew the stakes, as evidenced by the amicus briefs filed by retired bankruptcy judges, bankruptcy scholars, and national bankruptcy organizations. We recognized that, if a merely inadvertent omission by a debtor in required disclosure documents could result in dismissal on judicial estoppel grounds of an otherwise prosecutable claim, there would be profound implications for the estate and its creditors. Ultimately, the Court rejected the Fifth Circuit’s overly rigid standard for judicial estoppel and set forth a totality of the circumstances test. But in doing so, the Court also sent signals—some subtle, others not—suggesting that judicial estoppel nevertheless may not be appropriate in the bankruptcy context at all. This Essay builds on that suggestion and expands the analysis, positing that the application of judicial estoppel in the bankruptcy context is not only incompatible with Supreme Court precedent on judicial estoppel, but more fundamentally, violates well-recognized limitations on the inherent powers of federal courts.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.