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Bankruptcy Grifters, Lindsey Simon
Bankruptcy Grifters, Lindsey Simon
Scholarly Works
Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.
But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …
The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon
The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon
Scholarly Works
Litigation systems create dangers of unfairness. Citizens worry, and should worry, about exploitive settlements in aggregate litigation, potential biases in administrative proceedings, and troubling power imbalances in criminal trials. Public confidence in adjudicative processes has eroded to an all-time low. This Article explores the untapped potential of adding independent watchdog entities to address systemic threats to the integrity of government decisionmaking. These entities, which I call “guardian trustees,” do not fit within the traditional framework of our adversary system. Though guardian trustees already operate in bankruptcy proceedings, they have thus far received little attention in scholarly literature. This Article begins …
Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon
Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon
Scholarly Works
The doctrine of claim preclusion promotes fairness and finality by preventing parties from raising claims that already were (or could have been) raised in a prior proceeding. This strict consequence can be imposed only when the litigant received minimal due process protections in the initial proceeding, including notice and direct or indirect participation.
Modern litigation has caused a new problem. In some cases, a party may be precluded from ever raising a claim on the grounds of “fictional consent” to a prior court’s decisionmaking authority. Litigation devices have expanded the potential reach of judgments through aggregation and broad jurisdictional grants, …
Jevic's Promise: Procedural Justice In Chapter 11, Pamela Foohey
Jevic's Promise: Procedural Justice In Chapter 11, Pamela Foohey
Scholarly Works
In this Response to Jonathan Lipson's article, The Secret Life of Priority: Corporate Reorganization After Jevic, 93 Wash. L. Rev. 631 (2018)), I focus on Czyzewski v. Jevic Holding Corp.'s implications for procedural justice and corporate reorganization. In his article, Lipson explicitly links the chapter 11 process with the Bankruptcy Code’s substantive rules about priority, crafting a forceful argument about what procedural values the U.S. Supreme Court sought to uphold when it penned Jevic. In doing so, Lipson expounds on a broader truth about the co-option of corporate reorganization’s process in the name of value preservation. Procedural justice teaches that …