Law Commons^™

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of the …

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Georgia Law Review

One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

Steering Loan Modifications Post-Pandemic, Pamela Foohey, Dalie Jimenez, Christopher K. Odinet

Faculty Articles

As part of federal and state relief programs created during the COVID-19 pandemic, many American households received pauses on their largest debts, particularly on mortgages and student loans. Others may have come to agreements with their lenders, likewise pausing or altering payment on other debts, such as auto loans and credit cards. This relief allowed households to allocate their savings and income to necessary expenses, like groceries, utilities, and medicine. But forbearance does not equal forgiveness. At the end of the various relief periods and moratoria, people will have to resume paying all their debts, the amounts of which may …

The Survival Of Animal Care Organizations Impacted By The Covid-19 Pandemic In 2020, Juan Fernando Torrico

Environmental and Earth Law Journal (EELJ)

This note assessed how animal care organizations and the animals in their care were impacted, negatively and positively, by the coronavirus pandemic. Several animal care organizations in the United States–including animal shelters, rescues, sanctuaries, and zoos–were contacted directly, and invited to share their experiences from the COVID-19 pandemic in 2020. They provided valuable in-depth insight into how government shutdowns and social distancing impacted their facility; if any of the animals in their care tested positive for COVID-19; how the animals in their care were affected indirectly by COVID-19; if they sought and received any government assistance to keep them operational; …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

2019-2020 Annual Report: Roger Williams University School Of Law, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter

Faculty Scholarship

Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth is that the majority of the half-million families each year that seek refuge in chapter 13 bankruptcy will not achieve the debt relief of a discharge. Prior research found that those who drop out of bankruptcy quickly endure the serious financial struggles that they had before bankruptcy—now even worse off for having spent thousands of dollars …

Martin Luther King, Jr. Celebration Keynote Speaker: Don Graves, Deputy Assistant To President Obama And Counselor To Vice President Biden: January 24, 2017, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

When Social Enterprises Fail, Jonathan Brown

Elisabeth Haub School of Law Faculty Publications

This Article identifies the conflicts between social enterprise legislation and bankruptcy law and presents a normative argument for a legal regime that would harmonize the two. Focusing on benefit corporations, the most widely adopted social enterprise form, this Article observes that existing law leaves uncertainty as to the role of directors at a time of financial distress and will produce outcomes that are at odds with the core goals of social enterprise legislation. Then, drawing on academic proposals for contract-based systems of bankruptcy, this Article argues that just as a firm may opt out of a corporate governance norm of …

Use It Or Lose It: Grappling With Classification Of Post-Petition Sale Proceeds Under Chapter Seven Bankruptcy For Consumer Debtors In The Lone Star State., Danielle Nicole Rushing

St. Mary's Law Journal

Texas affords consumer debtors some of the most generous state bankruptcy exemptions in the United States. This includes the homestead exemption, which permits consumer debtors to exempt a homestead of unlimited value from forced sale, subject to certain enumerated exceptions. Bankruptcy courts throughout the state are grappling with how to characterize proceeds from the sale of an exempted homestead once a consumer debtor files a Chapter Seven bankruptcy petition. Specifically, courts consider whether a debtor may personally retain funds from the sale of a homestead or whether a Chapter Seven Trustee should receive the sale proceeds on behalf of the …

Through The Lens Of Innovation, Mirit Eyal-Cohen

Mirit Eyal-Cohen

The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of innovation. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Innovation turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviations as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Using …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Peter A. Holland

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Bankruptcy And Economic Recovery, Thomas H. Jackson, David A. Skeel Jr.

All Faculty Scholarship

To measure economic growth or recovery, one traditionally looks to metrics such as the unemployment rate and the growth in GDP. And in terms of figuring out institutional policies that will stimulate economic growth, the focus most often is on policies that encourage investment, entrepreneurial enterprises, and reward risk-taking with appropriate returns. Bankruptcy academics that we are, we tend to add our own area of expertise to this stable— with the firm belief that thinking critically about bankruptcy policy is an important element of any set of institutions designed to speed economic recovery. In this paper, written for a book …

Standing To Sue A Carrier's Killers , Davis J. Howard

Pepperdine Law Review

No abstract provided.

Hauerwasian Christian Legal Theory, David A. Skeel Jr.

All Faculty Scholarship

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely …

Making Sense Of The New Financial Deal, David A. Skeel Jr.

All Faculty Scholarship

In this Essay, I assess the enactment and implications of the Dodd-Frank Act, Congress’s response to the 2008 financial crisis. To set the stage, I begin by very briefly reviewing the causes of the crisis. I then argue that the legislation has two very clear objectives. The first is to limit the risk of the shadow banking system by more carefully regulating the key instruments and institutions of contemporary finance. The second objective is to limit the damage in the event one of these giant institutions fails. While the new regulation of the instruments of contemporary finance—including clearing and exchange …

The Rise In Elder Bankruptcy Filings And The Failure Of U.S. Bankruptcy Law, John A. E. Pottow

Articles

Recent empirical legal scholarship on the consumer bankruptcy system has uncovered a marked rise in the proportion of elder Americans filing for relief under the Bankruptcy Code. But these studies have not probed the reasons behind that rise, an omission this Article seeks to address. Professor John Pottow and colleagues recently assembled the new dataset of the Consumer Bankruptcy Project (CBP), the largest national sample of consumer debtors in this country, which he uses to explore the sources of elder bankruptcy. The findings are both striking and ominous. While multiple factors, such as health problems and medical debts, contribute to …

Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray

St. Mary's Law Journal

The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …

Making Debtor Remedies More Effective, Melissa B. Jacoby

Melissa B. Jacoby

Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other …

Managing Medical Bills On The Brink Of Bankruptcy, Melissa B. Jacoby, Mirya Holman

Melissa B. Jacoby

This paper presents original empirical evidence on financial interactions between medical providers and their patients who go bankrupt. We use a nationally representative sample of people who filed for bankruptcy in 2007 to compare two popular but hotly contested methods of measuring medical burden. By applying both methods to the same filers, we find that nearly four out of five respondents had some financial obligation for medical care not covered by insurance in the two years prior to filing as measured by the survey method. The court record method paints a different picture, with only half of the cases containing …

Home Mortgage Problems Through The Lens Of Bankruptcy, Melissa B. Jacoby

Melissa B. Jacoby

Based on a lecture at a predatory lending conference at Loyola University New Orleans School of Law, this brief paper discusses the 2007 Consumer Bankruptcy Project and how the empirical study of bankruptcy law informs our understanding of the intersection of mortgages and homeownership with financial distress, and whether bankruptcy can provide meaningful redress.

In Re Davis, Adam Schlusselberg

NYLS Law Review

No abstract provided.

The Effect Of Joint And Several Liability Under Superfund On Brownfields, Howard F. Chang, Hilary A. Sigman

All Faculty Scholarship

In response to claims that the threat of environmental liability under the Superfund law deters the acquisition of potentially contaminated sites (or "brownfields") for redevelopment, the federal government has adopted programs to protect purchasers from liability. This protection may be unwarranted, however, if sellers can simply adjust property prices downward to compensate buyers for this liability. We present a model of joint and several liability under Superfund that allows us to distinguish four different reasons that this liability may discourage the purchase of brownfields. The previous literature has overlooked the effects that we identify, which all arise because a sale …

Chip Away At The Stone: The Validity Of Pre-Bankruptcy Clauses Contracting Around Section 363 Of The Bankruptcy Code, Matthew P. Goren

NYLS Law Review

No abstract provided.

The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: The Solution To Inherent Inequalities Exists Outside The Box Of Congress' "Sense" Of Personal Finance Education, Lisa M. Wiltshire

ExpressO

This Note analzyes the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 in relation to discrepancies between minority and white bankruptcy petition filers.

Patterns In A Complex System: An Empirical Study Of Valuation In Business Bankruptcy Cases, Bernard Trujillo

ExpressO

This Article applies complex systems research methods to explore the characteristics of the bankruptcy legal system, presenting the results of an empirical study of twenty years of bankruptcy court valuation doctrine in business cramdown cases. These data provide solid descriptions of how courts exercise their discretion in valuing firms and assets.

This Article accomplishes two objectives: First, using scientific methodology, this Article explains the content of bankruptcy valuation doctrine. Second, this Article uses doctrine as a variable to explore system dynamics that govern the processes of change over time.

Significant findings include (i) courts tend to “split the difference” in …

Bankruptcy's Home Economics, David A. Skeel Jr.

All Faculty Scholarship

This essay began its life as a commentary on Elizabeth Warren’s article “The New Economics of the American Family” at the American Bankruptcy Institute's 25th Anniversary Symposium of the Bankruptcy Code in 2003. (Both the Warren article and my commentary were published in the symposium in the American Bankruptcy Institute Law Review.) “The New Economics of the American Family” was drawn in many respects from then-Professor Warren’s co-authored book, The Two Income Trap. The essay refers to both, though it puts particular emphasis on the article. The essay begins by briefly describing the basic thesis of the article-- …

Putting Health Care Providers At A Loss And Consumers At Risk: Why Hmos Should Be Held Accountable For The Financial Instability Of Their Delegated Networks., Anish P. Michael

St. Mary's Law Journal

This Comment explores why health maintenance organizations (HMOs) such as PacifiCare should be held accountable for the financial instabilities of their delegated networks. Part II discusses the organization of the managed care system and the assessment of Texas laws currently enforcing managed care in the state. Incorporated in this discussion is a look at the risks delegated networks bear when contracting with HMOs to provide payment for individualized care. Part III analyzes the increasing trend of financial instability by presenting the views of the HMOs, the delegated networks, the health care providers, and the consumers enrolled in the health plan. …

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 …