Law Commons^™

Bankruptcy Policymaking In An Imperfect World, Elizabeth Warren

Michigan Law Review

This essay is about bankruptcy policy. It attempts to articulate a comprehensive statement about the various and competing goals that underlie the bankruptcy system. The essay offers both a positive observation, drawn from the Code and its operation, and a normative evaluation, designed to outline the difficult value judgments that comprise the bankruptcy system. It also serves warning: before commentators propose any sweeping changes or policymakers take seriously any suggestions to scrap the system, they must consider the impact of such proposals on a number of competing normative goals.

Bankruptcy Courts And Stare Decisis: The Need For Restructuring, Jeffrey J. Brookner

University of Michigan Journal of Law Reform

Part I of this Note provides background by summarizing the rules of stare decisis. Part II refutes the contention that the present court structure allows bankruptcy judges not to follow domestic district court precedent. Part II asserts that, in pursuit of legitimate ends, bankruptcy judges have employed illegitimate means. Finally, Part II contends that bankruptcy judges are better equipped to make bankruptcy decisions than district judges. Part III concludes that the bankruptcy system should be restructured to allow bankruptcy judges to make decisions without being constrained by district court precedent or appeals. Such reform could achieve the substantive goals desired …

Of Hotel Revenues, Rents, And Formalism In The Bankruptcy Courts: Implications For Reforming Commercial Real Estate Finance, R. Wilson Freyermuth

Faculty Publications

This article is intended to continue the dialogue begun by the proposed Restatement and has two distinct goals in this effort. Parts I through III argue that the position of the Restatement drafters is both legally and functionally sound and that bankruptcy courts should embrace and apply the proposed Restatement in administering distressed real estate developments. Part I reviews the reasoning articulated in the hotel bankruptcy cases, demonstrating how courts have applied the provisions of the Bankruptcy Code and state law in a formalistic manner to extinguish the hotel mortgagee's lien upon postpetition room revenues. Part II rejects the analysis …

The Direct Action Against Insurers In Cercla Insolvency Cases: An Ideal Whose Time Has Come?, Peter R. Mounsey

William & Mary Environmental Law and Policy Review

No abstract provided.

Determining Interest And Discount Rates Applicable To Secured Claims In The Specter Of Bankruptcy Law, Aneel M. Pandey

San Diego Law Review

This Article formulates a basic framework to determine interest and discount rates applicable to secured claims in bankruptcy. It reviews the function of the interest rate from a macroeconomic perspective. The time value of money concept is explained, showing that the later a cash flow comes in time, the less it is worth. The treatment that debtors and creditors receive during the gap period (the time between the filing of the bankruptcy petition and the confirmation of the plan) is evaluated by examining how courts have struggled with the Bankruptcy Code to award post-petition interest. The author concludes by developing …

Bankruptcy—Qualified Erisa Plans Deemed Excludable From Bankruptcy Estates. Patterson V. Shumate, 112 S. Ct. 2242 (1992)., B. Shay Wilson

University of Arkansas at Little Rock Law Review

No abstract provided.

Avoidability Of Foreclosure Sales Under Section 548(A)(2) Of The Bankruptcy Code: Revisiting The Transfer Issue And Standardizing Reasonable Equivalency, Vic Sung Lam

Washington Law Review

Federal courts consider the 1984 amendments to the Bankruptcy Code to have conclusively defined "transfer" to include foreclosure sales under section 548(a)(2). This Comment questions this widely accepted interpretation. Moreover, federal courts have strongly disagreed on the meaning of "reasonably equivalent value" under section 548(a)(2) of the Bankruptcy Code for the purpose of avoiding a foreclosure sale as a constructive fraudulent transfer. This Comment examines the three dominant but divergent approaches to determining reasonable equivalency. It concludes that both the Durrett 70-percent rule and the Madrid state-procedural approach are inappropriate standards because they fail to comport with the statutory language …

Bankruptcy, W. Homer Drake Jr., James W. Dilz

Mercer Law Review

During 1992, the United States Court of Appeals for the Eleventh Circuit decided fifteen cases in the area of bankruptcy law. The decisions covered a diverse array of sections of the Bankruptcy Code (the "Code"). In addition to cases with practical application within the Eleventh Circuit, several decisions have national significance. This Article is a survey of each bankruptcy decision by the Eleventh Circuit in 1992.

Baseline Problems In Assessing Chapter 11, Theodore Eisenberg

Cornell Law Faculty Publications

Dealing with failing businesses is like dealing with failing marriages. It is messy. The bigger the business the messier the process is likely to be. Many big business failures in the United States go through their death throes or cure their ills in reorganizations under Chapter 11 of the Bankruptcy Act. As the vehicle in which big business messes travel, Chapter 11 is viewed as unnecessarily complex, time-consuming, and costly. The justification for Chapter 11's very existence has been challenged.

This article suggests that we are blaming the vehicle for the mess that it carries. Much of what is problematic …

Grissom V. Johnson: Just The Facts..., Dean C. Copelan

Mercer Law Review

In Grissom v. Johnson (In re Grissom), the Eleventh Circuit Court of Appeals established a case-by-case analytical model to determine when a foreclosure sale brought a "reasonably equivalent value" under 11 U.S.C. § 548. Absent fraud, collusion, or illegal or unlawful procedures, courts should presume that the price brought at the legitimate foreclosure sale is a reasonably equivalent value of the property. For a bankruptcy trustee "to avoid [a] foreclosure sale as [a] transfer of property for which [the] debtor received less than reasonably equivalent value," the trustee "must establish specific factors which undermine confidence in the reasonableness …

The Classification Veto In Single-Asset Cases Under Bankruptcy Code Section 1129(A)(10), David G. Carlson

Articles

No abstract provided.

The Fantastic Wisconsylvania Zero-Bureaucratic-Cost School Of Bankruptcy Theory: A Comment, James W. Bowers

Michigan Law Review

In two recently published articles, Wisconsin Law Professor Lynn LoPucki and Pennsylvania Law Professor Elizabeth Warren, nearly simultaneously, fired the latest shots in one of academia's hottest ongoing debates: whether any good reason for having bankruptcy law exists. Justice Holmes once opined that the future belonged to the lawyer skilled in statistics and economics. LoPucki and Warren apparently agree about statistics but argue that, in a world with positive transaction costs, economic theory has little to contribute to our understanding about the justifications for bankruptcy law.

I write to highlight what one might easily overlook in LoPucki's and Warren's pieces. …

Residential Mortgages Under Chapter 13 Of The Bankruptcy Code: The Increasing Case Against Cramdown After "Dewsnup V. Timm", David A. Wisniewski

Vanderbilt Law Review

Congress designed Chapter 13 to allow individuals an extended period of time to pay their debts so that they may support themselves and their dependents while repaying their creditors." Chapter 13 bankruptcy is more favorable to debtors than a straight liquidation under Chapter 7 because Chapter 13 debtors may keep all of their assets while Chapter 7 debtors must surrender most of their assets to generate funds with which to pay their creditors. A Chapter 13 debtor also benefits by avoiding the stigma and less favorable credit rating that accompanies a liquidating bankruptcy.s Chapter 13's benefit to creditors is also …

A Theory Of The Regulation Of Debtor-In-Possession Financing, George G. Triantis

Vanderbilt Law Review

The profile of Chapter 11 of the Bankruptcy Code in public consciousness has surged recently. Other than the automatic stay on the enforcement of claims, the most publicized feature of bankruptcy reorganizations is debtor-in-possession (DIP) financing. Indeed, along with the bankruptcy stay, DIP financing is the motivation for many Chapter 11 filings. Under Section 364 of the Code, a firm in bankruptcy (the debtor in possession) can finance its ongoing operations and investments by issuing new debt that enjoys any one of various levels of priority, all of which rank higher than the firm's prepetition unsecured debt.' The debtor's financing …

Bankruptcy's Effect On Environmental Claims: Should Involuntary Environmental Creditors Be Entitled To Non-Dischargeable Super-Priority Creditor Status?, Richard H. Golubow

University of Miami Business Law Review

No abstract provided.

Property Of The Bankruptcy Estate After A Conversion From Chapter 13 To Chapter 7: The Need For A Definite Answer, Robert J. Volpi

Indiana Law Journal

No abstract provided.

Dewsnup V. Timm: Judicial Sleight Of Hand In Statutory Construction Of The Bankruptcy Code, A. W. Bailey Iii

Brigham Young University Journal of Public Law

No abstract provided.

Organizational Form, Misappropriation Risk, And The Substantive Consolidation Of Corporate Groups, Christopher W. Frost

Law Faculty Scholarly Articles

The financial collapse of a corporation raises significant questions regarding its shareholders and creditors' ex ante allocation of the risk that such a collapse might occur. In bankruptcy, most of these risk allocation issues relate to the priority of particular creditors' claims against the assets of the failed business. But determining priority first requires some reasoned means of identifying the assets against which creditors may assert their claims. In many cases, this question is simply one of locating and distributing assets. However, when bankrupt firms have conducted their operations through a complex web of subsidiary corporations, each holding distinct assets …

No Fault Equitable Subordination: Reassuring Investors That Only Government Penalty Claims Are At Risk, Scott M. Browning

William & Mary Law Review

No abstract provided.

Postpetition Security Interests Under The Bankruptcy Code, David G. Carlson

Articles

Section 364(c) and (d) of the Bankruptcy Code provides for the creation of security interests in real and personal property under federal law. In this Article, David Gray Carlson discusses the quality and nature of these federal security interests, their remarkable immunity from reversal on appeal, and the ability of postpetition lenders to obtain preferences over other creditors through "cross-collateralization" clauses and the like.

In Re Grabill Corporation: Another No For Jury Trials In The Bankruptcy Courts, William J. Delany

Villanova Law Review

No abstract provided.

Aviation Law And Regulation: Abridged Student Edition, Robert M. Hardaway, Paul Stephen Dempsey, William E. Thoms

Sturm College of Law: Faculty Scholarship

We sought to write a comprehensive reference book for aviation lawyers and practitioners, and airline and aircraft manufactuing executives in need of vital information regarding law and government regulation in the field of commercial and general aviation. We envision this book as an aid for the neophyte and experienced practitioner alike.

Limitations On Use Of The California Homestead Exemption In Bankruptcy Cases: The Case For Following In Re Pladson, Leslie Burton, Jeffrey C. Wurms

Publications

Two decisions, a 1991 California Court of Appeal decision, Spencer v. Lowery, and a 1993 United States District Court for the Northern District of California decision, In re Pladson, severely restricted the homestead exemption available in bankruptcy cases filed in California. Some bankruptcy courts have refused to follow the Spencer and Pladson cases and the California Legislature has passed new legislation on the use of the homestead exemption in bankruptcy. This article will explore the background and rationale of the decisions and the legislative scheme, and offer support for limiting the Homestead exemption in bankruptcy cases.

Saybrook Manufacturing: Is Cross-Collateralization Moot?, Karen Gebbia, Lawrence E. Oscar

Publications

This article examines the Saybrook decision in the context of prior case law and the general principles underlying the Code. The first section lays the foundation for an analysis of Saybrook by identifying the fundamental tenets of the Code and outlining the protections available under the Code to preserve secured creditors' property interests in their collateral and to induce lenders to provide DIPs with new credit. The next section defines cross-collateralization, analyzes the Saybrook decision in the context of prior case law, and considers whether cross-collateralization is permissible under the Code's express provisions and general policies. The authors conclude that …

Distribución Comercial, Control Externo Y Quiebra, Martin Paolantonio

Martin Paolantonio

A propósito de un fallo judicial, un análisis de la posibilidad de extender la quiebra en casos de control externo, particularmente en virtud de contratos de distribución comercial

El Privilegio Del Acreedor Laboral Ante La Continuación De La Explotación, Martin Paolantonio, Eduardo Moccero

Martin Paolantonio

Nota a fallo analizando el alcance del privilegio de los acreedores laborales cuando la empresa fallida continúa realizando actividades comerciales

Annual Survey Of Virginia Law: Bankruptcy Law, Michael A. Condyles

University of Richmond Law Review

This article is intended to advise the general practitioner of significant recent developments that have occurred in the bankruptcy area during the period April 1992 through April 1993. Virginia and federal decisions issued by the Court of Appeals for the Fourth Circuit involving bankruptcy related matters are the main focus of this article.

Clearer Conceptions Of Insider Preferences, Peter A. Alces

Faculty Publications

No abstract provided.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Dewsnup V. Timm And Nobelman V. American Savings Bank: The Strip Down Of Liens In Chapter 12 And Chapter 13 Bankruptcies, William E. Callahan, Jr.

Washington and Lee Law Review

No abstract provided.