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Full-Text Articles in Bankruptcy Law

When Borders Dissolve, Laura N. Coordes Sep 2018

When Borders Dissolve, Laura N. Coordes

Chicago-Kent Law Review

Scholars have long sought to apply principles from U.S. bankruptcy law to sovereign debt restructurings. Chapter 9 of the U.S. Bankruptcy Code, used to adjust the debts of municipalities, has been a particular source of inspiration, and several proposals currently exist to adapt chapter 9 to address the challenges of sovereign debt restructuring.

The difficulties of applying chapter 9 in practice, however, have demonstrated the limitations of a one-size-fits-all solution to municipal distress. Similarly, attempts to adapt chapter 9 to apply uniformly to a broad range of sovereign states may be ineffective. A recurring problem lies in the ...


Modularity In Cross-Border Insolvency, Andrew B. Dawson Sep 2018

Modularity In Cross-Border Insolvency, Andrew B. Dawson

Chicago-Kent Law Review

This Article proposes a framework for thinking about the design structure of the Model Law on Cross-Border Insolvency. The Model Law has been successful by many metrics; however, it has faced various implementation challenges. As leading scholar Professor Jay Westbrook has noted, thinking about these problems requires thinking about the Model Law as a system. To understand the system, it is necessary to understand its architecture, and I argue that this architecture is best understood as reflecting a modular design structure, i.e., one that divides complex systems into a hierarchical system of self-contained components. Modularity has provided insights into ...


Infinite Jest: The Otiose Quest For Completeness In Validating Insolvency Judgments, Bruce A. Markell Sep 2018

Infinite Jest: The Otiose Quest For Completeness In Validating Insolvency Judgments, Bruce A. Markell

Chicago-Kent Law Review

Universalism in cross-border bankruptcies strives to reduce waste, and harmonize restructuring and recoveries. Universalism’s avatar is UNCITRAL’s 1997 Model Law on Cross-Border Insolvencies (Model Law). Underlying the Model Law, however, is an implicit assumption that court orders entered in the proceeding where the debtor’s center of main interests is located will be respected in all other states in which the debtor has assets or operations. That assumption may have been incorrect, as shown by cases such as the United Kingdom’s Rubin v. Eurofinance, S.A.

This Article looks at UNCITRAL’s reaction to Rubin: its new ...


The Ammanati Affair: Seven Centuries Old, And Not Feeling The Age, Eugenio Vaccari Sep 2018

The Ammanati Affair: Seven Centuries Old, And Not Feeling The Age, Eugenio Vaccari

Chicago-Kent Law Review

The enactments of the UNCITRAL Model Law on Cross-Border Insolvency and the European Regulations on insolvency proceedings have promoted an incremental approach towards substantive harmonization. This strategy has not remained unquestioned. One of the major criticisms is that such a course of actions overlooks the nature of the issues currently raised in multi-national and cross-disciplinary bankruptcy procedures.

This Article focuses on the Anglo/American bankruptcy tradition. It adopts a doctrinal methodology to question the conclusion that “collectivity” is and should be a procedural, objective, and secondary notion in light of two case studies. It suggests that in the context of ...


The Avoidance Of Pre-Bankruptcy Transactions: An Economic And Comparative Approach, Aurelio Gurrea-Martínez Sep 2018

The Avoidance Of Pre-Bankruptcy Transactions: An Economic And Comparative Approach, Aurelio Gurrea-Martínez

Chicago-Kent Law Review

Most insolvency jurisdictions provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. These mechanisms, generally known as claw-back actions or avoidance provisions, may fulfil several economic goals. First, they act as an ex post alignment of incentives between factually insolvent debtors and their creditors, since the latter become the residual claimants of an insolvent firm, but they do not have any control over the debtor’s assets while the company is not yet subject to a bankruptcy procedure. Thus, avoidance powers may prevent or, at least, reverse opportunistic behaviors faced ...


Layering, Conversion, And Drifting: A Comparative Analysis Of Path Dependent Change In Consumer Insolvency Systems, Megan Mcdermott Sep 2018

Layering, Conversion, And Drifting: A Comparative Analysis Of Path Dependent Change In Consumer Insolvency Systems, Megan Mcdermott

Chicago-Kent Law Review

The past twenty-five years have been marked by major developments in consumer insolvency systems around the world. The threshold challenge for comparative scholars is to keep up with the changes occurring in individual countries, as a necessary—but preliminary—step toward broader comparisons of the historical, social, and institutional forces in consumer bankruptcy. In order for deeper work to take place, though, the field needs consensus on what factors are most useful to analyze. Moreover, the dynamic environment of consumer insolvency requires a framework for analysis that is flexible and adaptable enough to provide insights notwithstanding the rapid changes in ...


A Canadian Lens On Third Party Litigation Funding In The American Bankruptcy Context, Stephanie Ben-Ishai, Emily Uza Sep 2018

A Canadian Lens On Third Party Litigation Funding In The American Bankruptcy Context, Stephanie Ben-Ishai, Emily Uza

Chicago-Kent Law Review

This Article offers two major recommendations to expand the use of third party litigation funding (“TPLF”) into the U.S. insolvency context. As seen in the Canadian context, courts have accepted the use of litigation funding agreements fitting within certain parameters. If U.S. courts follow suit, friction against the implementation of TPLF can be mitigated. Alternatively, regulation may occur through legislative and regulatory models to govern and set out precisely what types of arrangements are permitted. Involving entities such as the SEC may expedite the acceptance of TPLF, but special attention is necessary not to intermingle notions of fiduciaries ...


Market Organisations And Institutions In America And England: Valuation In Corporate Bankruptcy, Sarah Paterson Sep 2018

Market Organisations And Institutions In America And England: Valuation In Corporate Bankruptcy, Sarah Paterson

Chicago-Kent Law Review

Courts in England and the United States have traditionally adopted different approaches to the question of valuation in debt restructuring cases. In England, courts have tended to determine whether to approve the allocation of equity in a debt restructuring by reference to the amounts creditors would have received if no debt restructuring had been agreed. The company has typically argued that if no debt restructuring had been agreed either the business or the assets would have been sold. Typically, some evidence of exposure of the business and assets to the market will be submitted to identify the value which would ...


Fiduciary Duties Of Directors Of Insolvent Corporations: A Comparative Perspective, Alessandra Zanardo Sep 2018

Fiduciary Duties Of Directors Of Insolvent Corporations: A Comparative Perspective, Alessandra Zanardo

Chicago-Kent Law Review

Over the last two decades, in many jurisdictions great emphasis has been placed on directors’ fiduciary duties when a corporation is insolvent or in the amorphous “zone of insolvency”; notably, to investigate whether the directors should continue to promote the best interests of the corporation for the benefits of its shareholders, or whether their duties shift to creditors.

The resolution of this ubiquitous issue will help to answer the following questions: Do creditors have standing to pursue claims for breach of fiduciary duties in the insolvency scenario? And, if they do, is it direct or derivative standing?

This Article will ...


Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr. Sep 2018

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial ...


The Power Struggle: Shareholder Rights In Brazilian Corporate Bankruptcy, Jessica Nowak Jun 2018

The Power Struggle: Shareholder Rights In Brazilian Corporate Bankruptcy, Jessica Nowak

University of Miami International and Comparative Law Review

No abstract provided.


Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr. Jun 2018

Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr.

Faculty Scholarship at Penn Law

This Essay draws both on my scholarly and on my personal experience as a member of Puerto Rico’s oversight board to assess the first two years of the Board’s existence. I begin in a scholarly mode, by exploring the question of where P.R.O.M.E.S.A., the legislation that created the Board, came from. P.R.O.M.E.S.A.’s core provisions are, I will argue, the product of two historical patterns that have emerged in responses to the financial distress of public entities in the United States. The first dates back to ...


Lessons For Academic Leaders From Modern Restructuring Practice, Robert K. Rasmussen Jun 2018

Lessons For Academic Leaders From Modern Restructuring Practice, Robert K. Rasmussen

University of Southern California Legal Studies Working Paper Series

Financial distress has hit higher education. More and more universities and colleges are facing existential challenges as the competition for a dwindling number of students has put a strain on revenues. Unlike leaders in other industries, the presidents and chancellors of a financially distressed institutions of higher education cannot explore the possibility of a Chapter 11 filing under the Bankruptcy Code to restructure their obligations so that they align better with their revenues. Federal law prohibits Title IV loans – the lifeblood of virtually every university and college – from being made to students who attend a school that is in an ...


Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis Jun 2018

Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis

Faculty Scholarship at Penn Law

The most dramatic development in twenty-first century bankruptcy practice has been the increasing use of contracts to shape the bankruptcy process. To explain the new contract paradigm—our principal objective in this Article-- we begin by examining the structure of current bankruptcy law. Although the Bankruptcy Code of 1978 has long been viewed as mandatory, its voting and cramdown rules, among others, invite considerable contracting. The emerging paradigm is asymmetric, however. While the Code and bankruptcy practice allow for ex post contracting, ex ante contracts are viewed with suspicion.

We next use contract theory to assess the two modes of ...


Debt Stigma And Social Class, Michael D. Sousa Jun 2018

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social ...


Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair Jun 2018

Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair

St. Mary's Law Journal

Abstract forthcoming


A New Approach To Executory Contracts, John A.E. Pottow Jun 2018

A New Approach To Executory Contracts, John A.E. Pottow

Articles

This Article will proceed as follows. First, it will offer an abbreviated explanation of the treatment of executory contracts under the Code, chronicling the development of the concept of executoriness and the subsequent challenges of its effects. Second, it will explain a new approach that embraces and makes its peace with executoriness by focusing on the proper treatment of non-executory contracts. Third, it will address some of the anticipated counterarguments to the new approach. Finally, it will offer a quick road test to demonstrate how the new approach would have more easily resolved a major litigated precedent in this field.


The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb Jun 2018

The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb

Brooklyn Journal of Corporate, Financial & Commercial Law

A recent Supreme Court decision, Husky International Electronics, Inc. v. Ritz, explores the meaning of the word “fraud” under a federal bankruptcy statutory section. That section uses the term “actual fraud,” and bears upon the question of whether a particular debt should be denied a discharge. The Court’s approach in defining fraud affords guidance to the question of defining fraud under other statutes. The Husky case also raised a veil piercing issue to be dealt with on remand. That issue involved the application of Texas statutory law precluding veil piercing in cases brought by contract creditors unless they were ...


A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo May 2018

A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo

Boston College Law Review

On February 27, 2017, in In re Cowen, the U.S. Court of Appeals for the Tenth Circuit held that only affirmative actions to either obtain possession or exercise control over property of the bankruptcy estate constitute violations of the automatic stay provision. In doing so, the court concluded that the passive retention of an asset that was acquired pre-petition was not a violation of the automatic stay, and that the creditor had no obligation to relinquish the asset to the bankruptcy estate. This Comment argues that the Tenth Circuit misinterpreted the automatic stay provision of the Bankruptcy Code, disregarding ...


Sare Manipulation: The Hurdles In Single-Asset Real Estate Cases, David R. Hague May 2018

Sare Manipulation: The Hurdles In Single-Asset Real Estate Cases, David R. Hague

Catholic University Law Review

Section 1129 of the Bankruptcy Code allows a debtor to reorganize its plan. But a reorganization must first be approved by at least one “impaired class,” meaning one-half of those in the impaired class as well as two-thirds of the total amount of claims within the impaired class must vote “yes” to reorganization. Within this lens, the composition of the debtor’s classes has a substantial impact on whether a reorganization attempt will be successful. Clearly, this incentivizes debtors to group their claims in a way that maximizes their chances of gaining approval for reorganization.

As such, courts are now ...


Payments By Check As Voidable Preferences: The Impact Of Barnhill V. Johnson, Paulette J. Delk May 2018

Payments By Check As Voidable Preferences: The Impact Of Barnhill V. Johnson, Paulette J. Delk

Maine Law Review

Under the Bankruptcy Reform Act of 1978 (the Code), the trustee in bankruptcy has the duty to seek to avoid “preferential” transfers of the debtor's property made ninety days or less before the date of the filing of the bankruptcy case. Because of the delay that may occur between the time a check in payment of a debt is delivered by the debtor and when it is honored by the drawee bank, determining when the transfer was made to the payee-creditor has been a difficult issue for courts to resolve. The Supreme Court recently addressed this problem when it ...


Unreasonably Risky: Why A Negligence Standard Should Replace The Bankruptcy Code's Fraudulent Intent Analysis For Gambling Debts, Spencer H. Newman May 2018

Unreasonably Risky: Why A Negligence Standard Should Replace The Bankruptcy Code's Fraudulent Intent Analysis For Gambling Debts, Spencer H. Newman

UNLV Gaming Law Journal

No abstract provided.


Formailzing Chapter 9'S Experts, Laura N. Coordes May 2018

Formailzing Chapter 9'S Experts, Laura N. Coordes

Michigan Law Review

Chapter 9 of the U.S. Bankruptcy Code has many shortcomings. One of the most persistent, yet understudied, problems judges face in chapter 9 is also a problem that exists in other areas of bankruptcy law: the sheer difficulty of applying generalized plan confirmation standards to wildly different, highly specialized entities. In practice, judges have turned to experts—individuals well versed in municipal finance, mediation, and the particular debtor com-munity—to help overcome this problem in chapter 9. These experts often per-form critical roles in a municipal bankruptcy case, including conducting mediations, investigating the municipality’s finances, and even helping ...


Fiduciary Duties In Bankruptcy And Insolvency, John A. E. Pottow Mar 2018

Fiduciary Duties In Bankruptcy And Insolvency, John A. E. Pottow

Law & Economics Working Papers

Insolvency law (bankruptcy law to some) moves so quickly in the cross-border realm that this piece's discussion, started in 2015, is probably already outdated. Nonetheless, I publish it unrepentently because it turns overdue attention to the role of soft law in this domain. Building on earlier work in which I address the role of incrementalism, I discuss the marked success of the UNCITRAL Model Law on Cross-Border Insolvency and its cognate Insolvency Regulation in the EU (the latter now into its "Recast"). As predicted/hoped, the EU Recast, joining other contemporaneous reform projects, is building upon the scaffolding of ...


Bankruptcy's Exceptions To Discharge: When Does A Statement About A Single Asset Respect The Debtor's Financial Condition?, Roman Ibragimov Mar 2018

Bankruptcy's Exceptions To Discharge: When Does A Statement About A Single Asset Respect The Debtor's Financial Condition?, Roman Ibragimov

Boston College Law Review

Section 523(a)(2)(A) of the Bankruptcy Code provides that a debt is nondischargeable if it is obtained by “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s . . . financial condition.” In 2017, in In re Appling, the United States Court of Appeals for the Eleventh Circuit held that a false oral statement by a debtor to his creditor regarding a single asset constituted a statement respecting the debtor’s financial condition, allowing the debtor to discharge his liability to pay the debt. This ruling deepened a split among the courts as to ...


Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby Mar 2018

Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby

Faculty Scholarship

No abstract provided.


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The Fresh Start Canon, Jonathon S. Byington Feb 2018

The Fresh Start Canon, Jonathon S. Byington

Florida Law Review

A primary policy of bankruptcy law is to give consumer debtors a “fresh start” by discharging their debt. A rival policy is that the discharge of debt is a selectively conferred privilege that is not granted in some situations. For example, society is unwilling to pardon debt related to embezzlement or a domestic-support obligation. This “discharge restrictions” policy is manifested in part by the Bankruptcy Code’s exceptions to discharge. The U.S. Supreme Court has repeatedly recognized the tension between the fresh start and discharge restriction policies. It has sought to achieve a fair balance between these policies by ...


Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart Feb 2018

Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart

Maine Law Review

The discharge injunction is an integral aspect of the “fresh start” that bankruptcy affords to many debtors. But there has been a growing threat to the viability of the bankruptcy discharge: zombie debt! Just when honest but unfortunate debtors think they have finally laid their overdue financial obligations to rest and moved on with their lives, zombie debt comes back to life in form of outdated and misleading credit reports that some debt collectors have been using to coerce payment on debts that should have died years prior. This Article discusses the motivation behind these questionable collection tactics and potential ...


The Scope Of Section 316(B) After Marblegate, Marcel Kahan Feb 2018

The Scope Of Section 316(B) After Marblegate, Marcel Kahan

New York University Law and Economics Working Papers

Section 316(b) of the Trust Indenture Act provides that right of any to receive payment of the principal and interest may not be impaired or affected without the holder’s consent. This article analyzes the recent case law on whether corporate restructurings that impair the practical ability of bondholders to obtain payment on their bonds violate Section 316(b) of the Trust Indenture Act. After concluding that the Court of Appeals for the Second Circuit was correct in confining the scope of Section 316(b) to formal amendments to core payment terms, the article turns to an issue left ...