Law Commons^™

Consumer Bankruptcy Update, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Sandra D. Freeburger, Thomas L. Canary, Ann E. Samani, W. Thomas Bunch, David M. Cantor, Jan C. Morris, Beverly M. Burden, William W. Lawrence, Lisa Koch Bryant, Dean A. Langdon, Joan Lloyd Cooper, Henry H. Dickinson, William S. Howard, Joseph M. Scott Jr., Joe Lee, C.R. Bowles Jr., Alan C. Stout, James D. Lyon, Sandra D. Freeburger, Geneva F. Parris, Joseph J. Golden, John R. Stonitsch, Hal D. Friedman, Gregory R. Schaaf, Richard H. Nowka, Christopher W. Frost, Scott A. Bachert, Michael L. Baker, Cathy S. Pike

Continuing Legal Education Materials

Materials from the Consumer Bankruptcy Update presentations held by UK/CLE in December 2000.

The Bankruptcy Trust As A Legal Person, Thomas E. Plank

Scholarly Works

The purpose of this article is to show how the Bankruptcy Code authorizes the creation of the bankruptcy trust as a legal person. The filing of a petition under the Bankruptcy Code creates an "estate" consisting of enumerated property interests. The Code also provides for the appointment of a trustee-a separate bankruptcy trustee or, in chapter 11 or chapter 12 cases, the debtor in possession-with broad powers to act as the representative of the estate. The Code does not, however, expressly define the status of the estate as a legal entity. Although the Code occasionally speaks of the estate as …

International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman

Michigan Law Review

The globalization of business activity is rightfully celebrated as one of the triumphs of the second half of the twentieth century. The benefits stemming from the globalization of commerce are substantial, but international transactions also bring with them important challenges for the world's legal systems. Traditionally, national governments could focus on their domestic economies without undue attention to international issues. Today, however, a country's policymakers must respond to the growth in international business activity with appropriate legal changes. Failure to do so will cause their legal regimes to fall further and further out of step with the needs of the …

Secured Transactions History: The Northern Struggle To Defeat The Judgment Lien In The Pre-Chattel Mortgage Act Era, George Lee Flint Jr.

Northern Illinois University Law Review

Reformers recently have attacked the priority accorded the Anglo-American nonpossessory secured transaction both under bankruptcy and non-bankruptcy law. These reformers believe that the law should reserve some of the debtors' assets for general creditors, most notably tort claimants with judgment liens. The priority rule like many legal rules was adopted to solve some problem. The problem has disappeared, yet the rule remains. Thus, lawmakers must determine if some new rationale justifies the rule and, if so, the rule takes on a new life. If not, then lawmakers should change rules to accommodate the new conditions. This article aims to provide …

Textualism's Failures: A Study Of Overruled Bankruptcy Decisions, Daniel J. Bussel

Vanderbilt Law Review

Judges and legal scholars are engaged in a contentious, wide- ranging, and long-running debate over methods of statutory interpretation. Stripping the debate of some of its nuance without misrepresenting its essence, there are two camps: the "textualists" and the "pragmatists." Cass Sunstein recently argued that the question of interpretive method should be considered in light of evidence whether textualist methods work better or worse than pragmatic ones. To date, however, only limited empirical evidence has been systematically brought to bear on this question.

This Article presents new empirical evidence gleaned from twenty years of interpretation of the United States Bankruptcy …

Lining-Up At The Border: Renewing The Call For A Canada-U.S. Insolvency Convention In The 21st Century, Mike Perry

Duke Journal of Comparative & International Law

No abstract provided.

Insider Guaranties In Bankruptcy: A Framework For Analysis, Marshall E. Tracht

Articles & Chapters

This article presents an economic analysis of insider guaranties in small business finance and bankruptcy, explaining their role in the panoply of legal and contractual devices used to control financial agency costs. It then uses this model to examine two areas of concern in the bankruptcy treatment of insider guaranties (the Deprizio preference problem and the enforceability of springing and exploding guaranties) and to explore some of the wider implications of insider guaranties for small business bankruptcy. Building on the fact that insider guaranties are typically used less to increase the assets available for repayment of the debt than to …

Will Exploding Guaranties Bomb?, Marshall E. Tracht

Articles & Chapters

Springing and exploding guaranties - insider guaranties that will become due ifand when a borrower files for bankruptcy - have become popular as "bankruptcy-proofing" devices, yet there is little case law or literature on their enforceability. This article reviews the limited existing law on these bankruptcy-contingent guaranties and examines some of the arguments against their enforceabiltiy that can be expected to be made in the future.

The Use Of Intellectual Property As Collateral: Gap In The Perfection Of A Security Interest, Sofia Benammar

LLM Theses and Essays

The purpose of the present thesis is to let French lawyers know which step they need to take in order to best assist their client in securing a more solid investment. Lenders want to be protected. Lenders want to be sure that they can use the intellectual property rights in a commercial environment free from superior claims by third parties. In other words, a lender who provides a large loan to a borrower wants to know how and where its security interest will be perfected and what is the best way for him to have priority over other claims. This …

Antideficiency Rule Sanctions: In Re Prestige Ltd. Partnership-Concord, 2000, Roger Bernhardt

Publications

This article discusses a decision which held that a secured creditor who sues a debtor’s guarantor instead of foreclosing on security loses its security interest but may still recover the underlying debt in California.

The Lease Of Money In Bankruptcy: Time For Consistency?, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Licensing Intellectual Property And Technology From The Financially-Troubled Or Startup Company: Prebankruptcy Strategies To Minimize The Risk In A Licensee's Intellectual Property And Technology Investment, Richard M. Cieri, Michelle M. Harner

Faculty Scholarship

No abstract provided.

Getting To Waiver – A Legislative Solution To State Sovereign Immunity In Bankruptcy After Seminole Tribe, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

The Wasted Sacrifice Of Lessors' Lost Profit Claims In Bankruptcy, Marie T. Reilly

Journal Articles

Bankruptcy Code section 502(b)(6) sets the maximum allowable amount of a real property lessor's claim for damages arising for breach of lease in a tenant's bankruptcy case. To the extent a lessor's damages claim under nonbankruptcy law exceeds the maximum amount, it is disallowed. The implicit premise for such disallowance is that real property lessors' damages claims are less worthy of respect in bankruptcy than other claims for damages against the debtor. Real property leases are legally distinct from leases of personal property or other contractual relationships that allocate property rights. But, it does not obviously follow from the distinction …

Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford

Journal Articles

Bankruptcy law is one of the fundamental legal structures necessary to the functioning of a market economy. In the common law tradition of the United States and England, bankruptcy law dates back to 1542. Bankruptcy law's origins are even more ancient, with roots extending back to at least the Hammaurabi Code and the Law of Moses. In the transition to market economies and Western-style legal systems in Central and Eastern Europe, the development of a viable bankruptcy law is one of the first priorities. This, the United States bankruptcy law that forms the background for this symposium is central to …

The New Textualism And The Rule Of Law Subtext In The Supreme Court's Bankruptcy Jurisprudence, Alan Schwartz

NYLS Law Review

The Supreme Court is thought to use a method of statutory interpretation called "the new textualism" when construing Federal Statutes, including the Bankruptcy Code. The new textualism, in brief, ties interpreters more closely to the text than more traditional interpretative methods. This Essay inquires into the justifications for the new textualism, but its primary goal is to argue that the Court prefers an important justification of this interpretative method to the method itself. The justification holds that interpretation should advance the rule of law virtues of certainty and predictability. A court that is committed to the new textualism would construe …

The Creditor In Possession Under The Bankruptcy Code: History, Text, And Policy, Thomas E. Plank

Maryland Law Review

No abstract provided.

The Creditor In Possession Under The Bankruptcy Code: History, Text, And Policy, Thomas E. Plank

Scholarly Works

No abstract provided.

Bankruptcy Reorganization: Legal Dynamics Associated With Economic Discontinuity, Young Rock Noh

LLM Theses and Essays

This thesis attempts to discover the factors leading to such failures and to propose a cure. It argues that the basic structure of Chapter 11 of the Code, the debtor in possession structure, is one of the essential factors causing such a high rate of failure. The thesis further asserts that it is possible to reduce the rate of unsuccessful reorganization if the bankruptcy court exercises its power of case management more actively and expeditiously. For example, the court can screen the debtors' filing for relief before the reorganization case proceeds too far. Chapter II of this thesis examines the …

Beyond The Limits Of Equity Jurisprudence: No-Fault Equitable Subordination, Rafael I. Pardo

Scholarship@WashULaw

In two 1996 decisions involving equitable subordination of claims in bankruptcy cases, United States v. Noland and United States v. Reorganized CF&I Fabricators of Utah, Inc., the Supreme Court did not answer the question of whether a bankruptcy court must find creditor misconduct before it equitably subordinates a creditor's claim. This Note argues that the Court should have established a bright-line rule that requires such a finding, using prepetition, nonpecuniary loss tax penalty claims of the IRS as a model. After showing that, as codified in the Bankruptcy Code, the doctrine of equitable subordination requires a finding of creditor misconduct, …

Reinvigorating Chapter 11: The Case For Reinstating The Stock-For-Debt Exception In Bankruptcy, Michelle A. Cecil

Faculty Publications

This Article suggests that such a proposal will harmonize the bankruptcy policy of rehabilitating financially distressed corporations with the tax policy of ensuring that true economic income is subject to federal income taxation.27 Parts II and III of this Article will trace the common law evolution of the stock-for-debt exception and its statutory codification in 1980, with particular emphasis on the stated policy justifications for the exception. Part IV will then examine the history of the repeal of the stock-for-debt exception, demonstrating that the repeal was the result of hasty political maneuvering rather than reasoned legislative decision-making. In Part V, …

Forgiveness In The Civil Law, Jacqueline Nolan-Haley

Fordham Urban Law Journal

A discussion of the role of forgiveness in civil law, specifically relating to bankruptcy. Includes an audience question-and-answer session.

Forgiveness In The Civil Law, Jacqueline Nolan-Haley

Fordham Urban Law Journal

A discussion of the role of forgiveness in civil law, specifically relating to bankruptcy. Includes an audience question-and-answer session.

The Truth About The New Value Exception To Bankruptcy’S Absolute Priority Rule, David G. Carlson, Jack F. Williams

Articles

No abstract provided.

Bankruptcy Reform And The Elderly: The Effect Of Means-Testing On Older Debtors, Robyn L. Meadows

Robyn L Meadows

No abstract provided.

International Bankruptcy: In Defense Of Universalism, Andrew T. Guzman

Andrew T Guzman

No abstract provided.