Law Commons^™

The Crisis In Corporate Governance: 2002 Style, Robert W. Hamilton

Maine Law Review

The period from November 1, 2001 to October 1, 2002 has been an astonishing period for corporate governance in many respects. It began with the completely unexpected collapse of Enron Corporation on November 1, 2001, followed almost immediately thereafter by widely publicized downward profit restatements and bankruptcy filings by a significant number of telecommunication companies. Since November 1, 2001, there have been numerous public reports of fraud, misconduct, and scandals by directors of other well-known corporations such as Lucent Technologies, Kmart, Merck & Co., and Rite Aid Corporation. There also have been disclosures of many instances in which corporate officers …

Cybergenics Ii: Precedent And Policy Vs. Plain Meaning, Nancy A. Haller

Maine Law Review

On September 20, 2002, the U.S. Court of Appeals for the Third Circuit issued a panel opinion concluding that a court may not authorize a creditors' committee to commence an avoidance action in the trustee's name, on behalf of a bankruptcy estate. The decision shocked the bankruptcy bar and raised such a stir that many commentators raised it to the status of one of the “top cases of the year.” Furthermore, within two months, the Second Circuit came down with a squarely contrary decision, reaffirming the validity of the practice within the Second Circuit and failing to even acknowledge recent …

Justice Scalia’S Bankruptcy Jurisprudence: The Right Judicial Philosophy For The Modern Bankruptcy Code?, Megan Mcdermott

Utah Law Review

This Article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era and this Article argues that his brand of rulebased textualism is a particularly good fit for bankruptcy law.

Specifically, four …

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Northwestern University Law Review

This Article provides a framework for analyzing side agreements among stakeholders in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by a stakeholder to remain silent—to waive some procedural right they would otherwise have under the Bankruptcy Code—at potentially crucial points in the reorganization process.

Using simplified examples, we show that side agreements create benefits in some instances. But, in other cases, parties to a side agreement may attempt to extract value from nonparties to the agreement by contracting for specific performance or excessive stipulated damages that impose negative …

The Role Of Prosecutor In Collecting Payable And Receivable Debts Of The Insolvent Debtor, B. Xudaybergenov

Review of law sciences

In this article, auther studies and analyzes the legislation on the participation of the prosecutor in collecting receivables and payables of the insolvent debtor. In addition to, recommendations related to the improvement of the prosecution activity in the bankruptcy case are developed

Tipping The Scales: Balancing The Weight Of Equity With Loan Rescissions In Bankruptcy, Corey Scott Hadley

Maine Law Review

Prior to the passage of the Truth-in-Lending Act (TILA) in 1968, consumers were vulnerable to many deceptive practices employed by creditors when participating in loan transactions. Following the passage of TILA, it was the hope of Congress that consumers would now have the tools necessary to fend off predatory or deceptive credit terms buried within the fine print of a loan agreement. One of the options afforded to consumers facing a suspect loan agreement is the right to rescission. When lenders, creditors, and other parties in the credit transaction “fail to provide the consumer with proper disclosures about the loan …

How Absolute Is The Absolute Priority Rule In Bankruptcy? The Case For Structured Dismissals, Bruce Grohsgal

William & Mary Business Law Review

This Article challenges the view that the absolute priority rule applies to a “structured dismissal” in a chapter 11 bankruptcy case, namely a court-approved settlement of certain claims by or against the debtor followed by the dismissal of the case. Under that view, the bankruptcy court cannot approve a settlement that makes a distribution to holders of junior claims unless it also provides for payment of all senior claims in full. The Supreme Court considered the question in the fall of 2016 in Czyzewski v. Jevic Holding Corp. (In re Jevic Holding Corp.). The question before the Court is: “Whether …

Consumer Bankruptcy, Nondischargeability, And Penal Debt, Abbye Atkinson

Vanderbilt Law Review

This Article examines the issue of categorically nondischargeable debts in the Bankruptcy Code. These debts are excepted from discharge ostensibly because they indicate that the debtor incurred the debt through some misconduct, there is an important public policy at play that requires the debt to be excepted from discharge, or a discharge of certain state-imposed debts raises federalism concerns. Using penal debt as its lens, this Article critiques these analytical frames, arguing that they do not do much work to help explain why some debts are treated as categorically nondischargeable while others that seem to implicate the same concerns are …

How Many #Followers Do You Have?: Evaluating The Rise Of Social Media And Issues Concerning In Re Ctli’S Determination That Social Media Accounts Are Property Of The Estate, Patricia A. Leeson

Catholic University Law Review

With the rise of social media use, legal disputes have surfaced with litigants looking to the courts to determine issues of ownership and legal authority. As a matter of first impression, a U.S. Bankruptcy Court in Texas held that a Twitter and Facebook social media account were to be regarded as property of the estate pursuant to Section 541 of the Bankruptcy Code. The court analogized the social media accounts to subscriber lists because they provide valuable access to customers. Although the court addressed the question of whether social media applications are to be regarded as property in bankruptcy proceedings, …

The “Undue Hardship” Test: The Dangers Of A Subjective Test In Determining The Dischargeability Of Student Loan Debt In Bankruptcy, Rebekah Keller

Missouri Law Review

In today’s culture of living life on credit, post-secondary education loans have become the most popular method for American students to pay for their college degrees. Further, “[t]he costs for a higher education are among the fastest-rising costs in American culture today. Since 1980, tuition costs at U.S. colleges and universities have risen 757 percent.” With $1.2 trillion in current outstanding student loan debt, approximately 43 percent of the 22 million Americans with federal student loan debt are not making payments on their loans. In 2014, 69 percent of college seniors at public and nonprofit colleges graduated with some student …

Easy Credit And The Erosion Of Dischargeable Debt In Bankruptcy: Advocating For A Broad Interpretation Of 11 U.S.C. § 523(A)(2)(A) & (B)'S "Statement Respecting.. . Financial Condition", Tyler Sandifer

Georgia Law Review

The Bankruptcy Code largely exists to provide a
"fresh start" to debtors. But not everyone gets a free
pass. If a debtor has intentionally lied in order to
obtain money, property, services, or an extension,
renewal, or refinancing of credit, he receives no
protection. However, there is an exception built into the
code to protect debtors from predatory lenders intent on
gaming the system in an effort to eliminate insolvency
risk. The size of this exception has become a matter of
judicial debate over the past thirty-eight years as a
circuit split has slowly developed over the
interpretation of 11 …

Nothing Left To Tax Or Cut, The Gate To Chapter 9 Is Shut: The Puerto Rico Debt Crisis, Bianca Ko

Loyola of Los Angeles Law Review

No abstract provided.