Bankruptcy Law Commons^™

Consumer Bankruptcy In The Neoliberal State, Michael D. Sousa

Emory Bankruptcy Developments Journal

The rise of financialized capitalism as a component of the neoliberal state has resulted in our debt-based economy, under which utilizing credit—and incurring significant debt—is a necessary strategy for individuals and families to avoid economic marginality and to maintain some semblance of financial security in an evaporated welfare state. The current capitalist logic of differential accumulation and financial expropriation has created perpetually indebted citizens for whom debt needs to be understood as a social power and as a class relation of domination and exploitation between creditors and debtors. Many consumers who experience unmanageable debt often turn to the bankruptcy process …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William Simon

Indiana Law Journal

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

Dodd-Frank For Bankruptcy Lawyers, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

The Dodd-Frank financial reform legislation creates an “Orderly Liquidation Authority” (OLA) that shares many features in common with the Bankruptcy Code. This is easy to overlook because the legislation uses a language and employs a decision-maker (both borrowed from bank regulation) that will seem foreign to bankruptcy lawyers. Our task in this essay is to identify the core congruities between OLA and the Code. In doing so, we highlight important differences and assess both their constitutionality and policy objectives. We conclude with a few thoughts on the likelihood that OLA will contribute to market stability.

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 …

The Immovable Object Versus The Irresistable Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg

Michigan Law Review

The last leaf in O. Henry's classic short story was hanging by a delicate thread, but it never fell. It never fell, of course, because it wasn't real; Old Behrman had painted it (and caught pneumonia for his trouble) in order to give Johnsy the will to live. The Supreme Court's decision in Dewsnup v. Timm is also hanging by a thread, following a barrage of scholarly criticism and more than four years of limiting case law and legislative incursions on the case's core conceptual rationale. But the holding in Dewsnup, unlike the last leaf, is very real. It has …

Contractual Bankruptcy Waivers: Reconciling Theory, Practice, And Law, Marshall E. Tracht

Articles & Chapters

No abstract provided.