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Stephen Ware

Bankruptcy

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Similarities Between Arbitration And Bankruptcy Litigation, Stephen Ware May 2011

Similarities Between Arbitration And Bankruptcy Litigation, Stephen Ware

Stephen Ware

The litigation process in bankruptcy courts differs from the litigation process under the Federal Rules of Civil Procedure. And the bankruptcy litigation process differs from the Federal Rules in many of the same ways that the arbitration process tends to differ from the Federal Rules. This Article explores these similarities between the procedures of bankruptcy litigation and arbitration and contrasts them with the more elaborate procedures of ordinary civil litigation under the Federal Rules.

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Bankruptcy Law's Treatment Of Creditors' Jury-Trial And Arbitration Rights, Stephen Ware Dec 2008

Bankruptcy Law's Treatment Of Creditors' Jury-Trial And Arbitration Rights, Stephen Ware

Stephen Ware

Bankruptcy law treats the constitutional jury right with less deference than the, merely statutory, right to arbitrate. But this apparent anomaly is actually the plausible result of a limitation within the Seventh Amendment jury right, its applicability only to claims at law but not claims in equity. The right to arbitrate is not similarly limited. So creditors seeking to arbitrate claims by and against debtors in bankruptcy are not defeated by longstanding holdings placing such claims on the equity side of the law/equity line. In contrast, creditors seeking jury trials of claims by and against debtors in bankruptcy are defeated …

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Security Interests, Repossessed Collateral And Turnover Of Property To The Bankruptcy Estate, Stephen Ware Dec 2001

Security Interests, Repossessed Collateral And Turnover Of Property To The Bankruptcy Estate, Stephen Ware

Stephen Ware

Property is generally understood in two ways. Most people think of property as a thing that is owned by someone. By contrast, lawyers and other specialists understand property as rights against people with respect to things.

This duality in our understanding of property can cause confusion when lawmakers mix the colloquial understanding of property as thing-ownership with the specialist's understanding of property as a bundle of rights. Such mixing seems to have occurred in the law governing security interests in bankruptcy. As a result, courts are split on a frequently recurring issue: must a secured creditor who, at the time …

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