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Articles 1 - 30 of 74
Full-Text Articles in Law
Punishing Debtors In Bankruptcy During Covid-19, David Y. Kamins
Punishing Debtors In Bankruptcy During Covid-19, David Y. Kamins
Brooklyn Journal of Corporate, Financial & Commercial Law
The 2019 Coronavirus Pandemic (COVID-19) led to widespread government-mandated lockdowns, causing numerous businesses to close their doors permanently. To assist financially distressed businesses and individuals during the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The Small Business Administration (SBA)—the agency tasked with implementing the CARES Act—distributed funds to individuals and businesses through the Paycheck Protection Program (PPP). Part of the SBA’s eligibility requirements to receive funding through the PPP included an exclusion provision that barred debtors presently involved in any bankruptcy proceeding from receiving any PPP funding. Many debtors in bankruptcy filed suits in …
Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Commercial Law Harmonization: The Past As Prologue—A “Festschrift” In Honor Of Neil B. Cohen, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck
Formulating Lists Of Factors: Lessons From The Good, The Bad, And The U.C.C., Stephen L. Sepinuck
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger
Reviving The Realist Restatements And The Common Law Codes: Neil Cohen And The Grand Style, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
The “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved. Then it will consider the tortured and recently concluded experience in connection with the …
Aggregation And Abuse: Mass Torts In Bankruptcy, Edward J. Janger
Aggregation And Abuse: Mass Torts In Bankruptcy, Edward J. Janger
Faculty Scholarship
No abstract provided.
Broken Promesa: Why The United States Should Abandon Its Use Of The Territories Clause To Control The Local Affairs Of Puerto Rico, Julia R. Cummings
Broken Promesa: Why The United States Should Abandon Its Use Of The Territories Clause To Control The Local Affairs Of Puerto Rico, Julia R. Cummings
Brooklyn Law Review
Puerto Rico’s sovereignty status is an anomaly. Since the United States acquired the island in 1898, the federal government has treated Puerto Ricans differently compared to residents of its other acquired territories. The United States also exerts significant control over Puerto Rico’s local affairs, most recently through the enactment and enforcement of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in response to the current debt crisis in Puerto Rico. This note assesses the validity of the federal government’s use of the territories clause to control local Puerto Rican affairs, examining the complex history between the United States …
Health Insurance And Bankruptcy Risk: Examining The Impact Of The Affordable Care Act, Philip M. Pendergast, Michael D. Sousa, Tim Wadsworth
Health Insurance And Bankruptcy Risk: Examining The Impact Of The Affordable Care Act, Philip M. Pendergast, Michael D. Sousa, Tim Wadsworth
Brooklyn Law Review
The passage of the Patient Protection and Affordable Care Act (“ACA”) in 2010 represented a watershed moment for healthcare in the United States. As is well-noted, the federal courts are still wrangling over the constitutionality of the law, and there is significant uncertainty regarding the extent to which the ACA will survive these legal battles. Unquestionably, the ACA has expanded access to health insurance for many millions of Americans. Prior to the advent of the ACA, Medicaid income eligibility for adults without dependents was approximately 61 percent of the Federal Poverty Line. Empirical studies since the advent of the ACA …
Looking Forward: Professor Roberta Karmel’S Prescient Views On The Transformation Of Self-Regulatory Organizations And Of The Securities Market Structure At The Turn Of The Last Century, James A. Fanto
Brooklyn Journal of Corporate, Financial & Commercial Law
This essay examines Professor Roberta Karmel’s scholarship on the transformation of self-regulatory organizations (SROs) and the securities market structure, a transformation that occurred at the turn of the last century. It explains how she examined the events from the perspective of a lawyer who had a rich knowledge of the history of the SROs, the securities markets, and their regulation and how she provided a practical understanding of the way these markets worked. It points out that, rather than offering an overarching theory that would explain all of these developments and that would guide regulators and legislators in SRO and …
Personal Insolvency In China: Necessities, Difficulties, And Possibilities, Rebecca Parry, Haizheng Zhang, Jiahui Fu
Personal Insolvency In China: Necessities, Difficulties, And Possibilities, Rebecca Parry, Haizheng Zhang, Jiahui Fu
Brooklyn Journal of International Law
There has long been demand for personal insolvency laws in China, yet such laws have hitherto been unavailable, in part due to ideological resistance. In more recent years there has been an increase in borrowing by individuals, which has led to increased calls for honest but unfortunate debtors to be able to obtain a fresh start. Yet there is significant public mistrust of defaulting debtors and in particular there is a shadow cast by those termed the Lao Lai that has led many to question the desirability of such a reform. There has also been a need for change in …
Global Erie And Its Limits: Channeling Jurisdictional Competition For Procedure, Edward J. Janger
Global Erie And Its Limits: Channeling Jurisdictional Competition For Procedure, Edward J. Janger
Faculty Scholarship
No abstract provided.
Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport
Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport
Brooklyn Journal of Corporate, Financial & Commercial Law
This short (approx. 5,000 words) essay, which forms the basis of a keynote address to the Federal Bar Association that I’m doing next month, discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills. One note, though: my writing style is informal and distinctive in that regard (especially …
A Rejection Of Absolutist Duties As A Barrier To Creditor Protection: Facilitating Directorial Decisivness Surrounding Insolvency Through The Business Judgment Rule, Philip Gavin
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article draws attention to the difficulties that directors may face when seeking to discharge their duties as a corporation approaches insolvency, in particular when directors must discern the point at which a corporation has become insolvent. It argues that discretion allowed to directors by the business judgment rule will be crucial to overcoming these difficulties. To do this, this article examines the nature of duties owed by directors both before and after insolvency, and accepts the stance taken by Delaware courts in recent years towards an expansive understanding of a corporation’s interests upon insolvency. It then considers unresolved issues …
Consumer Bankruptcy And Race: Current Concerns And A Proposed Solution, Edward J. Janger
Consumer Bankruptcy And Race: Current Concerns And A Proposed Solution, Edward J. Janger
Faculty Scholarship
No abstract provided.
Private Equity & Industries In Transition: Debt, Discharge & Sam Gerdano, Edward J. Janger
Private Equity & Industries In Transition: Debt, Discharge & Sam Gerdano, Edward J. Janger
Faculty Scholarship
No abstract provided.
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar
Brooklyn Journal of International Law
The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …
Please Recognize Me: The United Kingdom Should Enact The Uncitral Model Lawon Recognition And Enforcement Of Insolvency-Related Judgments, John A. Churchill Jr.
Please Recognize Me: The United Kingdom Should Enact The Uncitral Model Lawon Recognition And Enforcement Of Insolvency-Related Judgments, John A. Churchill Jr.
Brooklyn Journal of International Law
Since 1995, the United Nations Commission on International Trade Law (UNCITRAL), has been developing tools to meet the challenges of having different insolvency laws managing a single cross-border insolvency. By 1997, UNCITRAL’s Working Group V completed the Model Law on Cross-Border Insolvency. By September 2020, the original model law has been adopted by 48 countries. In Rubin v. Eurofinance SA, the U.K. Supreme Court cited a lack of authority to recognize a U.S. insolvency-related judgment in the Model Law on Cross-Border Insolvency. As a result of this decision, UNCITRAL’s Working Group V developed the Model Law on Recognition and Enforcement …
Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger
Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
Two competing visions dominate the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-classical approach is associated with Robert Bork and the Law and Economics Movement. The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts. Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 …
Consumers' Declining Power In The Fintech Auto Loan Market, Pamela Foohey
Consumers' Declining Power In The Fintech Auto Loan Market, Pamela Foohey
Brooklyn Journal of Corporate, Financial & Commercial Law
Automobiles have become part of America’s infrastructure. For most people, having access to a car is crucial to their livelihoods and they will take on significant amounts of debt to purchase vehicles. Auto debt is unlike any other consumer debt, both in its structure, which allows creditors to easily seize collateral, and in its lack of regulation. The unique and lucrative nature of auto debt has not gone unnoticed by lenders or by companies leveraging fintech to offer people new ways to purchase cars and car loans. This Article assesses the evolving marketplace for auto sales, leasing, and loans to …
Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger
Brooklyn Journal of Corporate, Financial & Commercial Law
Consumer Reporting Agencies (CRAs) are the gatekeepers to the American economy. As the chief informants for prospective lenders, landlords, and employers, they exert immense power over the day-to-day decisions of who gets what. Despite these high stakes, the CRAs run consumer reporting as an automated electronic process that causes a lot of reporting errors, disqualifying consumers from essential goods, services, and opportunities. This is painfully true in the context of identity theft, where perverse incentives pollute the integrity of consumer reporting, piling undue harm onto identity theft victims. The law provides a remedy for this problem, but circuit courts are …
The U.S. Small Business Bankruptcy Amendments: A Global Model For Reform?, Edward J. Janger
The U.S. Small Business Bankruptcy Amendments: A Global Model For Reform?, Edward J. Janger
Faculty Scholarship
No abstract provided.
Revising The Debt Limit For “Small Business Debtors”: The Legislative Half-Measure Of The Small Business Reorganization Act, Michael C. Blackmon
Revising The Debt Limit For “Small Business Debtors”: The Legislative Half-Measure Of The Small Business Reorganization Act, Michael C. Blackmon
Brooklyn Journal of Corporate, Financial & Commercial Law
Bankruptcy law changed drastically in 2019 with the passage of several bills. This Note will examine two of them. First, the Family Farmer Relief Act of 2019 raised the debt limit of the family farmer from $4,411,400 to $10,000,000. This enables more financially distressed family farmers to be eligible for Chapter 12 relief, a reorganizational tool designed for farmers. Second, the Small Business Reorganization Act of 2019 created Subchapter V – Small Business Debtor Reorganization in Chapter 11. This new Subchapter streamlined the reorganization process for small business debtors by removing roadblocks which often derail a reorganization of a small …
Value Tracing And Priority In Cross-Border Group Bankruptcies: Solving The Nortel Problem From The Bottom Up, Edward Janger, Stephan Madaus
Value Tracing And Priority In Cross-Border Group Bankruptcies: Solving The Nortel Problem From The Bottom Up, Edward Janger, Stephan Madaus
Faculty Scholarship
No abstract provided.
The Proceduralist Inversion–A Response To Skeel, Edward Janger, Adam J. Levitin
The Proceduralist Inversion–A Response To Skeel, Edward Janger, Adam J. Levitin
Faculty Scholarship
No abstract provided.
“Fair Enough”? Revising The Yellowstone Injunction To Fit New York’S Commercial Leasing Landscape And Promote Judicial Economy, Gabriel W. Block
“Fair Enough”? Revising The Yellowstone Injunction To Fit New York’S Commercial Leasing Landscape And Promote Judicial Economy, Gabriel W. Block
Brooklyn Journal of Corporate, Financial & Commercial Law
The Yellowstone injunction is an equitable remedy that tolls any applicable cure period and gives tenants a better opportunity to maintain their leasehold when they have defaulted under their lease. The remedy is available to commercial tenants in New York City and to commercial and residential tenants throughout the State. This Note examines the Yellowstone injunction in the context of New York City’s commercial tenants, who employ it most frequently and benefit most from its protections. This Note examines the development and application of the Yellowstone injunction and proposes changing the doctrine to exclude cases of monetary defaults and expired …
Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts
Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts
Brooklyn Journal of Corporate, Financial & Commercial Law
Federal courts have had trouble fitting maritime law into the bankruptcy scheme created by the Bankruptcy Code (the Code). Particularly troublesome have been vessel-arrest proceedings that are underway when the vessel’s owner files for bankruptcy. Prior to the enactment of the Code, courts applied the doctrine of custodia legis to decide whether the admiralty or the bankruptcy court would administer the vessel. Since the Code was enacted, courts have generally held that the bankruptcy court gained control. A recent Ninth Circuit decision, however, split with other circuits and seems to have revived custodia legis. This Note argues that the Ninth …
One Dollar, One Vote: Mark-To-Market Governance In Bankruptcy, Edward J. Janger, Adam J. Levitan
One Dollar, One Vote: Mark-To-Market Governance In Bankruptcy, Edward J. Janger, Adam J. Levitan
Faculty Scholarship
No abstract provided.
The Creditors' Bargain Reconstituted: Comments On Barry Adler's The Creditors' Bargain Revisited, Edward J. Janger
The Creditors' Bargain Reconstituted: Comments On Barry Adler's The Creditors' Bargain Revisited, Edward J. Janger
Faculty Scholarship
No abstract provided.
The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger
The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu
Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu
Brooklyn Journal of Corporate, Financial & Commercial Law
Federal securities law seeks to ensure the quality and quantity of information that corporations make publicly available. Informational asymmetries associated with companies in financial distress, but not in bankruptcy, have received little attention. This Article explores some important asymmetries in this context that are curious in their origin, nature, and impact. The asymmetries are especially curious because of the impact of a world with credit default swaps (CDS) and CDS-driven debt “decoupling.” The Article explores two categories of asymmetries. The first relates to information on the company itself. Here, the Article suggests there is fresh evidence for the belief that …
Transparency In Corporate Groups, Jay Lawrence Westbrook
Transparency In Corporate Groups, Jay Lawrence Westbrook
Brooklyn Journal of Corporate, Financial & Commercial Law
This Article addresses a remarkable blind spot in American law: the failure to apply the well-established principles of secured credit to prevent inefficiency, confusion, and fraud in the manipulation of the webs of subsidiaries within corporate groups. In particular, “asset partitioning” has been a fashionable subject in which the central problem of non-transparency has been often mentioned but little addressed. This Article offers a concept for a new system of corporate disclosure for the benefit of creditors and other stakeholders. It would require disclosure of corporate structures and allocations of assets among affiliates to the extent the affiliates are to …