Bankruptcy Law Commons^™

Bankruptcy's Rarity: An Essay On Small Business Bankruptcy In The United States, Edward R. Morrison

Faculty Scholarship

Most nations have enacted statutes governing business liquidation and reorganization. These statutes are the primary focus when policymakers and scholars discuss ways to improve laws governing business failure. This focus is misplaced, at least for distressed small businesses in the United States.

Evidence from a major credit bureau shows that over eighty percent of these businesses liquidate or reorganize without invoking the formal Bankruptcy Code.

The businesses instead invoke procedures derived from the laws of contracts, secured lending, and trusts. These procedures can be cheaper and speedier than a formal bankruptcy filing, but they typically require unanimous consent of senior, …

Book Review: Comparative Consumer Bankruptcy, Stephanie Ben-Ishai

Articles & Book Chapters

This is a review of Comparative Consumer Bankruptcy by Jason J. Kilborn. Durham, NC: Carolina Academic Press, 2007.

Constitutional Problems In The 2005 Bankruptcy Amendments, Samuel Bufford, Erwin Chemerinsky

Hon. Samuel L. Bufford

No abstract provided.

Individual Voluntary Arrangements And Consumer Debtors: Past, Present And Future, Adrian Walters

Adrian J Walters

No abstract provided.

Consuming Passions: Benchmarking Consumer Bankruptcy Law Systems, Adrian Walters

Adrian J Walters

No abstract provided.

The Cross-Border Insolvency Regulations 2006: An Emerging Jurisprudence, Adrian Walters, S. Shivji, A. Smith

Adrian J Walters

No abstract provided.

Corporate Insolvency In The United Kingdom: The Impact Of The Enterprise Act 2002, Adrian Walters

Adrian J Walters

No abstract provided.

Os Negócios Das Sociedades Controladas Pela Falida Estão Sujeitos Às Hipóteses De Ineficácia E Revogação Dos Artigos 129 E 130 Da Lei 11.101/2005?, Rafaela Loureiro Pinheiro Furlan, Jessica Daniele Winge

Rafaela Loureiro Pinheiro Furlan

O presente trabalho tem como tema a extensão dos efeitos da falência da sociedade controladora à sociedade coligada. Seu objetivo é mostrar como o sistema jurídico tem recepcionado questões envolvendo grupos societários e falência, sobretudo nas hipóteses de ineficácia e revogação dos atos praticados pelas empresas durante o processo de falência. Por meio da análise doutrinária e jurisprudencial mostraremos como a nova lei de recuperação de empresas e falências juntamente com as decisões judiciais tem modificado a forma de enfrentar a referida questão em nosso país. Finalmente concluiremos que os princípios da preservação dos interesses dos credores previstos na Lei …

Enforcing Corporate Fiduciary Duties In Bankruptcy, Kelli A. Alces

Scholarly Publications

No abstract provided.

Unjust Enrichment And Creditors, Emily Sherwin

Cornell Law Faculty Publications

The constructive trust remedy plays an important role in bankruptcy because it places restitution claimants in a position of priority over creditors. According to traditional rules governing constructive trusts, restitution claimants who can identify particular assets in the debtor's hands as products of an unjust enrichment recover in full, to the exclusion of other unsecured creditors. The draft Restatement (Third) of Restitution and Unjust Enrichment endorses this outcome with only minor qualifications.

The supposed basis for a constructive trust is unjust enrichment: courts grant the remedy to prevent the defendant from profiting at the claimant's expense. In bankruptcy, the parties …

Looking Forward While Looking Back: Using Debtors' Post-Petition Financial Changes To Find Bankruptcy Abuse After Bapcpa, Justin H. Rucki

William & Mary Law Review

No abstract provided.

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

Michigan Law Review

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy that improvements in the market for large public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This Article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000 through 2004 with the recoveries in bankruptcy reorganizations during the same period. Controlling for company …

The Bankruptcy Clause And The Eleventh Amendment: An Uncertain Boundary Between Federalism And State Sovereignty, Daniel Austin

Daniel A. Austin

This Article will examine the conflict between the Bankruptcy Code and state sovereignty. The Article shows that while state substantive law is extensively incorporated into federal bankruptcy law, the Bankruptcy Code prevails over state sovereign immunity when applying bankruptcy law. In other words, under the present judicial regime, the Bankruptcy Code presents a glaring exception to the otherwise firm rule of state sovereignty.

Part I examines the Bankruptcy Clause and several national bankruptcy statutes, including the current Bankruptcy Code. This discussion includes an explanation of how the Bankruptcy Clause sits within the framework of the Supremacy Clause. Part II discusses …

La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva

Edward Ivan Cueva

La Cesión de Derechos en el Código Civil Peruano

Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz

Osgoode Hall Law Journal

The conventional wisdom is that the poor are not heavy users of the insolvency system, because creditors are unwilling to take risks on the poor and because many of the poor are judgment-proof. However, credit is now widely available across the spectrum of income groups. In addition, poverty is often a temporary state for many Canadians; therefore, being judgment-proof is likewise temporary. Some of those who are poor at any point in time are in fact in need of bankruptcy protection. They have debts that they are unable to pay and little likelihood of being able to repay in the …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

"Stringent execution" may be the watch phrase for implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). The bankruptcy bar has lived with BAPCPA for well over a year, and if one common thread arises in the case law, it is judges dissatisfaction with what may kindly be referred to as "drafting flaws." Many courts have highlighted these flaws-and other perceived inadequacies in BAPCPA-by ruthlessly enforcing the statute's plain language. This has already led to the enactment of one amendment by Congress, as well as criticism from some of its members. Whether further amendments will follow …

Where's The Beef: A Few Words About Paying For Performance In Bankruptcy, Jonathan C. Lipson

All Faculty Scholarship

This brief essay responds to Yair Listokin’s article, “Paying for Performance in Bankruptcy: Why CEOs Should Be Compensated with Debt,” 155 U. PA. L. REV. 777 (2007). Professor Listokin argues that we should give official creditors’ committees the power to pay management of reorganizing debtors with corporate debt. This, he argues, would properly align their incentives with those who are most likely affected, the “residual claimant” unsecured creditors. Although Professor Listokin’s proposal is a welcome addition to our literature on corporate reorganization, this essay points out several basic problems with it: • First, nothing currently prevents parties from doing this …

Segundo Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García

Bruno L. Costantini García

Memorias del Segundo Congreso Nacional de Organismos Públicos Autónomos. "Autonomía, Profesionalización, Control y Transparencia"

Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

The Retrogressive Flaw Of Chapter 15 Of The Bankruptcy Code: A Lesson From Maritime Law, John J. Chung

Law Faculty Scholarship

No abstract provided.

Direct Appeals From Bankruptcy Courts To The Courts Of Appeals: The Experience After Two Years, David George

The Journal of Appellate Practice and Process

No abstract provided.

Managers’ Fiduciary Duties In Financially Distressed Corporations: Chaos In Delaware (And Elsewhere), Rutheford B. Campbell Jr., Christopher W. Frost

Law Faculty Scholarly Articles

The inherent conflict between creditors and shareholders has long occupied courts and commentators interested in corporate governance. Creditors holding fixed claims to the corporation's assets generally prefer corporate decision making that minimizes the risk of firm failure. Shareholders, in contrast, have a greater appetite for risk, because, as residual owners, they reap the rewards of firm success while sharing the risk of loss with creditors.

Traditionally, this conflict is mediated by a governance structure that imposes a fiduciary duty on the corporation's managers-its officers and directors-to maximize the value of the shareholders' interests in the firm. In this traditional view, …

The Expressive Function Of Directors’ Duties To Creditors, Jonathan C. Lipson

All Faculty Scholarship

This Article offers an explanation of the “doctrine” of directors’ duties to creditors. Courts frequently say—but rarely hold—that corporate directors owe duties to or for the benefit of corporate creditors when the corporation is in distress. These cases are puzzling for at least two reasons. First, they link fiduciary duty to priority in right of payment, effectively treating creditors as if they were shareholders, at least for certain purposes. But this ignores the fact that priority is a complex and volatile concept. Moreover, contract and other rights at law usually protect creditors, even (especially) when a firm is distressed. It …

Moving Toward A Federal Law Of Corporate Governance In Bankruptcy, Kelli A. Alces

Scholarly Publications

No abstract provided.

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - Theory And Policy, Kelli A. Alces, Larry E. Ribstein, Alan Schwartz, Simone M. Sepe

Journal of Business & Technology Law

No abstract provided.

Universal Proceduralism, Edward J. Janger

Faculty Scholarship

No abstract provided.

Directors' Duties In Failing Firms, Kelli A. Alces, Larry E. Ribstein

Scholarly Publications

Despite many cases with seemingly contrary dicta, corporate directors of failing firms do not have special duties to creditors. This follows from the nature of fiduciary duties and the business judgment rule. Under the business judgment rule, the directors have broad discretion to decide what to do and in whose interests to act. There is some authority for a limited creditor right to sue on behalf of the corporation to enforce this duty. However, any such right does not make the duty one owed to creditors. The creditors individually may sue the corporation for breach of specific contractual, tort, and …