Law Commons^™

Bankruptcy Shopping: Domestic Venue Races And Global Forum Wars, Anthony J. Casey, Joshua C. Macey

Emory Bankruptcy Developments Journal

This Article proposes reforms to bankruptcy law’s venue rules. These reforms would expand venue choice, reduce opportunistic venue shopping, and account for the rise of global forum shopping. To date, the leading proposals to reform venue selection rules for bankruptcy cases have ignored simpler alternatives that can reduce opportunistic misbehavior while preserving beneficial choice. Moreover, those proposals have focused exclusively on restricting a debtor’s choice among venues within the United States while ignoring the increasing availability and convenience of foreign courts as forums for distressed corporate debtors seeking to initiate insolvency proceedings. In this way, the proposals on the table …

Government Activism In Bankruptcy, Jared A. Ellias, George Triantis

Emory Bankruptcy Developments Journal

It is widely recognized that bankruptcy law can stymie regulatory enforcement and present challenges for governments when regulated businesses file for Chapter 11. It is less-widely understood that bankruptcy law can present governments with opportunities to advance policy goals if they are willing to adopt tactics traditionally associated with activist investors, a strategy we call “government bankruptcy activism.” The bankruptcy filings by Chrysler and General Motors in 2009 are a famous example: the government of the United States used the bankruptcy process to help both auto manufacturers resolve their financial distress while promoting the policy objectives of protecting union workers …

A Path Forward For The Postal Service, Laura N. Coordes

Emory Bankruptcy Developments Journal

What is the United States Postal Service (USPS)? The entity’s future, financial and otherwise, is wrapped up in the answer to this fundamental, yet surprisingly complicated, question. The postal service in the United States began as a part of the federal government, but over the years, Congress has altered its structure. Today’s USPS is an entity situated somewhere between a public, governmental agency and a private business. It has attributes resembling both, and while most observers agree that it is becoming more “privatized,” it is still subject to a significant number of laws and regulations that do not apply to …

Chapter 11 Under Duress, Jay Lawrence Westbrook

Emory Bankruptcy Developments Journal

In this Article, the Business Bankruptcy Project (BBP) reports data from an empirical study of two samples of chapter 11 bankruptcies in the federal courts in Wilmington and Manhattan, two districts notably important in modern bankruptcy practice. While our study includes a number of interesting and important facts about the chapter 11 process in 2014 and 2018, this brief interim report centers around the loss of value arising from control by pre-bankruptcy lenders and the implications that arise from that fact. Building on other recent studies, it highlights the fact that a control transaction in many chapter 11 cases has …

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Emory Bankruptcy Developments Journal

With expanding global vaccinations and the potential end of the COVID-19 pandemic in sight, who among us has not succumbed to daydreams of post-crisis ‘normal’ life? Still—and setting aside for now the certain obstacles on any road to public and economic health—we should not be too sanguine about the degree to which the eventual recovery will be even, including across countries. By now, the images of economic dislocation resulting from the pandemic, including empty tourist beaches, deserted town centers, and closed manufacturing plants, have become commonplace. In certain regions and countries, this dislocation and its after-effects may prove long-lasting, putting …

Water Under The Bridge? A Look At The Proposal For A New Chapter 16 Of The Bankruptcy Code From A Comparative Law Perspective, Tobias Wetlitzky

Emory Bankruptcy Developments Journal

In light of the ongoing COVID-19 pandemic, bankruptcy law will play a crucial role in addressing the consequences of the global economic shutdown. Many large corporations in the U.S. will need to undergo chapter 11 bankruptcy proceedings or may attempt to reorganize their financial debt in an out-of-court workout. However, section 316(b) of the Trust Indenture Act of 1939 has long been blamed for making out-of-court restructurings practically impossible, because it requires unanimous approval from bondholders. In 2014, the National Bankruptcy Conference presented a solution for the inefficiencies in bond workouts by proposing a streamlined debt reorganization procedure for borrowed …

The Future Of Bankruptcy Appeals: Appellate Standing After Lexmark Considered, John A. Peterson Iii, Joshua A. Esses

Emory Bankruptcy Developments Journal

The purpose of this Article is to summarize the current state of the law regarding appellate standing in bankruptcy appeals within the various sister circuit courts of the United States, and to recommend how the law of appellate review of bankruptcy court orders should be applied. We will begin with a purely descriptive summary of the law of standing in federal courts and of standing to appeal orders of bankruptcy courts specifically. From this discussion it should be clear that courts almost universally limit appellate standing of bankruptcy court orders to parties that can demonstrate that they are a person-aggrieved—in …

Bankrupting Tribes: An Examination Of Tribal Sovereign Immunity As Reparation In The Context Of Section 106(A), Joshua Santangelo

Emory Bankruptcy Developments Journal

This Comment concerns section 106(a) of the Bankruptcy Code, which abrogates sovereign immunity of “a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” A circuit split exists as to whether this section applies to Native Nations. The Sixth Circuit interpreted this section to maintain sovereign immunity for Native Nations in the Code, while the Ninth Circuit interpreted it to abrogate tribal sovereign immunity. This Comment argues that the Sixth Circuit’s interpretation of section 106(a) is the correct interpretation because of the unique relationship between Native Nations and the federal …

Disorderly And Discriminatory: The Bankruptcy Code's Treatment Of Disabled Debtors, Madeline Thatcher

Emory Bankruptcy Developments Journal

Disability benefits in bankruptcy face uncertainty under the current exemption system. The enumerated federal exemptions are poorly drafted, lack useful legislative history, and classify benefits depending on the benefit’s source. The opt out provision found in section 522(b) of the Bankruptcy Code allows jurisdictions to limit debtors to the state’s exemptions rather than the federal exemptions. Depending on which exemption the court places the disability benefits under, the benefits may be fully exempt from the bankruptcy estate, limited to the amount reasonably necessary for the debtor’s support, or unexempt. The bankruptcy courts struggle to uniformly apply the federal and state …

Continuation Of Chapter 13 Postmortem: Why Courts Should Allow Deceased Debtors' Cases To Continue Post Plan Confirmation, Alexandra R. Byrne

Emory Bankruptcy Developments Journal

A lack of direct guidance from Rule 1016 of the Federal Rules of Bankruptcy Procedure has created inconsistency among bankruptcy courts regarding whether to continue a chapter 13 case if the debtor dies post plan confirmation but before discharge. Rule 1016 allows a deceased debtor’s chapter 13 case to continue if “further administration is possible” and it is “in the best interests of the parties.” Although dismissal is appropriate if the debtor dies before plan confirmation, continuation after plan confirmation is possible and benefits all parties. The benefits of continuation post plan confirmation stem from the certainty under federal bankruptcy …

List It Or Lose It: The Application Of Judicial Estoppel When A Debtor Fails To List A Claim, Johnathan H. Christoforatos

Emory Bankruptcy Developments Journal

This Comment addresses the application of judicial estoppel to dismiss a debtor’s civil or administrative claim when the debtor fails to list his claim on the required schedule. Part I of this Comment analyzes the general concept of equity and the principles underlying judicial estoppel. Part II analyzes equity and judicial estoppel through the lens of the bankruptcy system. Part III presents my proposed test to determine when it is appropriate for courts to invoke judicial estoppel to dismiss a debtor’s undisclosed claim when the trustee has decided to abandon it after it has been discovered. This test considers four …

Event Program, Emory Bankruptcy Developments Journal

Emory Bankruptcy Developments Journal Symposia & Workshops

Emory Bankruptcy Developments Journal Workshop

March 12, 2021 10:00 a.m. - 3:15 p.m.

Emory University School of Law via Zoom

Workshop Invitation, Emory Bankruptcy Developments Journal

Emory Bankruptcy Developments Journal Symposia & Workshops

Friday, March 12, 2021 | 10:00 a.m. to 3:15 p.m. EDT

Emory Bankruptcy Developments Journal Workshop

This year, the EBDJ is publishing a special issue entitled the “Developments Issue” that will feature essays from some of the top bankruptcy scholars in the United States. In conjunction with the publication of this special issue, the Journal is hosting this workshop for authors to discuss their pieces and to take questions and comments from workshop attendees and fellow panelists.

Speakers include: Professor Laura Coordes, Professor Odette Lienau, Professor Anthony Casey, Professor Joshua Macey, Professor George Triantis, Professor Jared Ellias, and Professor Jay …