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9th Biennial Judge Joe Lee Bankruptcy Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, David G. Epstein, Kenneth N. Klee, Paul H. Asofsky, Beverly M. Burden, Lawrence P. King, Charles P. Normandin, John J. Jerome, Taft A. Mckinstry, Joan Lloyd Cooper, G. Ray Warner, Gerald K. Smith

Continuing Legal Education Materials

Materials from the 9th Biennial Judge Joe Lee Bankruptcy Institute held December 1999.

Can Shame, Guilt, Or Stigma Be Taught? Why Credit-Focused Debtor Education May Not Work, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Self-Settled Spendthrift Trusts: Should A Few Bad Apples Spoil The Bunch?, Gideon Rothschild, Daniel S. Rubin, Jonathan G. Blattmachr

Vanderbilt Journal of Transnational Law

It is unfortunate, but perhaps not terribly surprising, that the first two reported cases to consider the application of conflict of laws principles to self-settled spendthrift trusts both involved "bad facts" from an asset protection planning standpoint. In this regard, the adage "bad facts produce bad law" is not a slight on the courts, but rather an acknowledgment of a court's primary duty to do substantial justice to the parties immediately before it. However, in an effort to do substantial justice to the parties immediately before them, the Portnoy and Brooks courts have forged what may well become the first …

Roundtable Discussion, David Aronofsky, Barry S. Engel, Eric Henzy, Gideon Rothschild, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

Welcome to the Roundtable panel discussion. Each of the speakers is going to open with a few minutes statement. And then we're going to pose some questions to open discussion, so it will take people through the whole asset protection route from beginning to end, hopefully. And then, any questions you may have we believe we'll have sufficient time to ask those questions and have them answered. You may get very different views. And then we've just decided that the jury will decide whether asset protection trusts are a good thing or a bad thing. Okay. So pay attention.

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

Indiana Law Journal

No abstract provided.

The Philosophy And Design Of Contemporary Consumer Bankruptcy Systems: A Canada-United States Comparison, Jacob S. Ziegel

Osgoode Hall Law Journal

The rapid increase in the number of consumer bankruptcies in Canada and the United States over the past fifteen years has again focused attention on the philosophy and design of modern insolvency systems, and on the similarities and differences in the approaches adopted in Canada and the United States. In this article, the author points out that the single most important difference is that the United States has historically subscribed to the debtor's right to a "fresh start" after surrendering the debtor's non-exempt property, whereas Canadian law never has, and does not now, confer an absolute right of discharge. Although …

The Dark Side Of Student Loans: Debt Burden, Default, And Bankruptcy, Saul Schwartz

Osgoode Hall Law Journal

This article addresses three hypotheses: (1) only a minority of Canadian student loan borrowers experience severe difficulty in repaying their student loans; (2) those who default on their student loans do so largely because they cannot pay, rather than because they do not want to pay; and (3) for Canadians who are filing for bankruptcy and who have student loans among their debts, bankruptcy is a last resort, and their economic situation is more difficult than that of the average person seeking bankruptcy protection. A review of the literature strongly supports the first two hypotheses; a new analysis of a …

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

UF Law Faculty Publications

This Article examines the virtually unquestioned protection of retirement assets from creditors, in both state and federal law, with a view to determining whether tax qualification or even retirement itself is a sufficient rationale for preserving debtor assets in the face of creditors' claims, and if so, what the limits of such protection should be. The problems of current law stem in large part from the use of tax qualified status as a convenient shortcut for determining the appropriate bankruptcy treatment of retirement accounts. The result is a wide disparity in the treatment of debtors epitomized by the cases of …

Options In Consumer Bankruptcy: An American Perspective, Jean Braucher

Osgoode Hall Law Journal

In both the United States and Canada, a rapid increase in personal bankruptcies has led to demands for stricter laws to force more repayment by consumer debtors. Canada has already taken this step, while the United States may soon do so in response to the counterfactual claim that the problem is debtors with means using bankruptcy as "a method of financial planning." The author suggests that the real problem in both countries, however, is an increase in the ranks of the over-indebted. Bankruptcy is a symptom, signalling to creditors the need to reform themselves. The author concludes that if creditors …

Philosophy And Design Of Modern Fresh Start Policies: The Evolution Of Canada's Legislative Policy, John D. Honsberger

Osgoode Hall Law Journal

The fresh start concept-the restoration of a bankrupt to his or her former debt-free status-originated in the United States. While lip service is paid to it in Canada, the author's review of the English origins and subsequent evolution of Canadian bankruptcy legislation indicates that a strong commitment to the fresh start policy has never been the Canadian philosophy. Rehabilitation of the debtor is not a matter of great concern in Canada. Indeed, the Canadian legislative policy has always been restrictive of the rights of debtors. With the passage of amendments to the Bankruptcy and Insolvency Act (BIA) in 1992 and …

The Changing Politics Of American Bankruptcy Reform, Elizabeth Warren

Osgoode Hall Law Journal

The political atmosphere in which changes to the American bankruptcy laws occur has shifted since the adoption of the 1978 amendments to the United States Bankruptcy Code. Bankruptcy professionals, who once effectively controlled much of the legislative debate, have lost ground to creditors, who have become much more powerful in influencing bankruptcy legislation. The result has been the politicization of the debate and the setting of the stage for a series of amendments that have rhetorical appeal, but that do not reflect the underlying factual reality of the bankruptcy system.

Insolvency Counselling--Innovation Based On The Fourteenth Century, Carol Ann Curnock

Osgoode Hall Law Journal

In the fourteenth century, poverty (previously viewed as a virtue) was redefined by both church and state as illegal and immoral. This view persists in Canada today. The 1992 amendments to the Bankruptcy and Insolvency Act (BIA) included a provision that makes two counselling sessions mandatory for all persons going through bankruptcy. The author reviews The BIA Insolvency Counsellor's Qualification Course that was developed in support of this amendment, and concludes that it is not up to the task. The mandatory counselling presumes a bankrupt person's irresponsibility, addiction, and need for referral to community service agencies. However, these presumptions are …

The Overseas Dimension: What Can Canada And The United States Learn From The United Kingdom, Michael Adler

Osgoode Hall Law Journal

The United States and, to a slightly lesser extent, Canada have come to regard personal bankruptcy as a routine method of discharging debts, enabling the debtor to make a fresh start. By contrast, in the United Kingdom, bankruptcy is still seen as a remedy of last resort, and creditors may retain the right to enforce debts. The difference in approach is due to the fact that the United States and Canada have traditionally given priority to risk taking over security, while the United Kingdom has continued to give priority to security over risk taking. However, the British government's enthusiasm for …

Consumer Bankruptcies: An Australian Perspective, Rosalind Mason

Osgoode Hall Law Journal

Over the past three decades, Australia has experienced a significant increase in the number of consumer bankruptcies. Until the early 1970s, the number of business and consumer bankruptcies was approximately equal, whereas in 1997 to 1998, for every business-related bankruptcy, there were approximately four consumer bankruptcies. This article gives a concise overview of insolvency laws in Australia, in particular the administrations applicable to individual debtors. Next, it briefly describes current Australian scholarship on consumer bankruptcy, before outlining pertinent bankruptcy and consumer credit regulation. Suggestions to decrease consumer bankruptcy numbers include extension of the "cooling-off period" for those intending to petition …

Counselling Consumer Debtors Under Canada's Bankruptcy And Insolvency Act, Ruth E. Berry, Sue L. T. Mcgregor

Osgoode Hall Law Journal

If no attempts are made to determine the monetary and non-monetary reasons for bankruptcy or its recurrence, debtors may be more likely to choose bankruptcy, or remain in the cycle of bankruptcy. Credit counselling is one mechanism that can assist consumers in paying back debts without resorting to bankruptcy, thereby preventing repeat bankruptcies and heavy debt loads in the future. Canada passed a major milestone in 1992, becoming the first country to make financial counselling mandatory prior to the granting of an unconditional discharge from personal bankruptcy. This article describes the history of the policy analysis involved in making consumer …

Consumer Bankruptcies: A New Zealand Perspective, Paul Heath

Osgoode Hall Law Journal

In this article, the author considers the need for reform of New Zealand bankruptcy law to reflect recent socioeconomic developments in New Zealand. The author addresses several consumer bankruptcy issues, and considers them in the context of a number of competing public interest factors, such as the purpose of insolvency law, the role of the state in insolvency law, and the necessary balance to be struck between competing macroeconomic and microeconomic factors. The author suggests varying solutions-some educational, and some legal.

Consumer Bankruptcy In Comparison: Do We Cure A Market Failure Or A Social Problem, Johanna Niemi-Kiesilainen

Osgoode Hall Law Journal

The Continental European and Scandinavian bankruptcy laws did not have provisions enabling the discharge of debt until quite recently. While bankruptcy law did not specifically exclude consumer debtors, in the absence of discharge, consumer bankruptcy was meaningless and rare. After the deregulation of credit markets in the 1980s, many west European countries faced a huge increase in consumer debt problems. Several countries passed consumer debt adjustment laws during the late 1980s and 1990s. Unlike the North American consumer bankruptcy laws, the European laws attach moral attributes to the access to adjustment procedures, which require a mandatory payment plan, and offer …

Holding The High Ground: The Position Of Secured Creditors In Consumer Bankruptcies And Proposals, Tamara M. Buckwold

Osgoode Hall Law Journal

This article examines the position of secured creditors in the event of a consumer debtor's bankruptcy or the filing of a consumer proposal, as determined by the federal and provincial laws of Canada. Secured creditors in Canada are in a remarkably powerful position relative to other claimants in bankruptcy and to their counterparts in the United States. Their rights of realization against the collateral are essentially unaffected by the initiation of either a consumer bankruptcy or proposal. Moreover, recent judicial developments appear to further enhance secured creditors' rights of enforcement, both against the in personam payment obligation and against the …

Secured Creditors And Consumer Bankruptcy In The United States, William C. Whitford

Osgoode Hall Law Journal

This article first summarizes the many restrictions that the American consumer bankruptcy system imposes on the enforcement of the contractual rights of secured creditors. The restrictions include the ability, in Chapter 13 proceedings particularly, of the debtor to "strip the lien" of the undersecured creditor, releasing the collateral from the lien upon payment, over time, of only the value of the collateral when it is less than the full amount owing. The article then summarizes many changes in the rights of secured creditors currently being proposed and debated in Congress. The author concludes with his own proposals that would enhance …

Failure And Forgiveness: A Review, James J. White

Reviews

In Failure and Forgiveness, Professor Karen Gross has written two books about bankruptcy. The first book, found in the first nine chapters, describes the bankruptcy law, the bankruptcy system, its operation, and the policies that support that law and system. This first book is written for a lay audience, and it is an admirable exposition of the law and policy. The second book, chapters ten to fifteen, contains several proposals for change in the bankruptcy law and states arguments to justify those proposals. The second book shows Professor Gross to be a kindly socialist, deeply suspicious of free markets and …

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger

Faculty Publications

The § 365 consumer debtor case law has a further complication. Much of it arises in the context of the last great bankruptcy frontier, Chapter 13. Until recently, Chapter 11 has occupied the minds and hearts of courts and attorneys. Not any more. And, as attorneys and courts take a closer, harder look at Chapter 13, it is no longer possible to describe it as a “streamlined creditors-can’t-vote Chapter 11”. Chapter 13 is unique, presenting its very own quandaries, not the least of which is how its provisions and § 365 interact. We live in interesting times.

Comsumer Bankruptcy's New Clothes: An Empirical Study Of Discharge And Debt Collection In Chapter 13, Scott F. Norberg

Faculty Publications

Consumer bankruptcy filings hit another record high in 1998, with nearly 1.4 million consumers filing for bankruptcy relief. This trend sparked a debate in Congress about means-testing chapter 7 bankruptcy filings. Proponents of reform argued that it would curtail fraud and abuse. Opponents believed that consumer debt was swamping income growth, and that the deregulation of the consumer credit market had led to overgenerous lending and hence to more bankruptcies. This is an empirical study of whether filers for chapter 13 bankruptcy cases are abusing the system, or whether debtors are truly being swamped by debt in excess of their …

If You Don't Have Anything Good To Say..., Peter A. Alces

Faculty Publications

No abstract provided.

Bankruptcy Takings, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

The Takings Clause is a vital consideration in determining the treatment of secured creditors in bankruptcy. This Article will explain why the Takings Clause is relevant and why scholars engaged in the debate over secured credit must consider the constitutionality of their proposals in light of the takings issue. In Part I of the Article, I explore the ways in which current bankruptcy law provides protection and gives deference to property rights. I also discuss certain proposals that would reduce the protection given to secured parties. Part II provides an overview of takings law and discusses some of the cases …

Ask The Professor: Give-Ups After Griffin — What Changes Are Needed Now?, Ronald Filler

Articles & Chapters

No abstract provided.

Taking Future Claims Seriously: Future Claims And Successor Liability In Bankruptcy, Frederick Tung

Faculty Scholarship

Treatment of contingent tort liabilities when a business is sold presents a particular challenge for corporate and bankruptcy law. In this article, I focus on the precarious position of future tort claimants-those who may be harmed by a manufacturer's defective product after the manufacturer has sold its business and disappeared. By the time the future claimant's injury occurs, she may be left with no means of recovery. While the article focuses primarily on the bankruptcy sale context, a discussion of the nonbankruptcy context provides important background.

In the article, I make two claims. First, I address recent proposals suggesting that …

Directors' Disqualification: Law And Practice, Adrian Walters

Adrian J Walters

No abstract provided.