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Articles 2281 - 2310 of 3904
Full-Text Articles in Bankruptcy Law
Debtor Discharge And Creditor Repayment In Chapter 13, Scott F. Norberg
Debtor Discharge And Creditor Repayment In Chapter 13, Scott F. Norberg
ExpressO
The consumer bankruptcy system plays an enormous albeit largely under appreciated role in the United States economy. There were nearly 1.6 million consumer bankruptcy filings in the United States in 2004 - more than twice the number just ten years earlier, and more than one filing for every 70 households in the country. Nearly a third of these filings were under Chapter 13 of the Bankruptcy Code. (Chapter 13 provides for individual debt readjustment pursuant to a repayment plan, whereas Chapter 7 provides for liquidation of assets to pay creditor claims.) Yet, little is known about what debtors and creditors …
Corporate Form And Substantive Consolidation, William H. Widen
Corporate Form And Substantive Consolidation, William H. Widen
ExpressO
This Article reformulates substantive consolidation doctrine in light of modern financing techniques. Building upon the author's research showing the prevalence of substantive consolidation in large public bankruptcies, it offers an economic account (based on Coase's theory of firm size) to explain why we should expect that the circumstances giving rise to substantive consolidation should be common (rather than rare as suggested by the rhetoric of case law). Extending the asset partitioning theory developed by Professors Hannsmann and Kraakman, it offers a model for looking at the corporate form within corporate groups, particularly in the insolvency context. The recent Third Circuit …
Bankruptcy And The Entitlements Of The Government: Whose Money Is It Anyway?, Ronald Mann
Bankruptcy And The Entitlements Of The Government: Whose Money Is It Anyway?, Ronald Mann
ExpressO
No abstract provided.
Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald Mann
Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald Mann
ExpressO
No abstract provided.
Recharacterization And The Nonhindrance Of Creditors, David A. Skeel Jr., Georg Krause-Vilmar
Recharacterization And The Nonhindrance Of Creditors, David A. Skeel Jr., Georg Krause-Vilmar
All Faculty Scholarship
Using a 1977 article by Robert Clark as the starting point, this article attempts to shed new light on the question of whether and when shareholder loans to her company should be either equitably subordinated or, as courts have done in a few recent cases, recharacterized as equity. In its emphasis on the particular issue of shareholder loans, the article has a narrower compass than Clark’s article, which uses a four-part typology to explore the relationship among fraudulent conveyance law, equitable subordination, veil piercing and dividend restrictions. But the article also expands Clark’s analysis in several respects. The most important …
Contract As Statute, Stephen J. Choi, G. Mitu Gulati
Contract As Statute, Stephen J. Choi, G. Mitu Gulati
Michigan Law Review
The traditional model of contract interpretation focuses on the "meeting of the minds." Parties agree on how to structure their respective obligations and rights and then specify their agreement in a written document. Gaps and ambiguities are inevitable. But where contract language exists for the point in contention and a dispute arises as to the meaning of this language, courts attempt to divine what the parties intended. Among the justifications for deferring to the intent of the parties is the assumption that parties know what is best for themselves. Deference also arguably furthers autonomy values. Not all contracts and contract …
Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin
Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin
ExpressO
Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.
Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …
Extinguishing Security Interests: Secured Claims In Japanese Reorganization Law And Some Policy Implications To The U.S. Law, Wataru Tanaka
Extinguishing Security Interests: Secured Claims In Japanese Reorganization Law And Some Policy Implications To The U.S. Law, Wataru Tanaka
ExpressO
This Article examines how secured claims are treated in Japanese business reorganization law, especially in the Civil Rehabilitation Act (Minji saisei ho), which was enacted in 1999 as the new general reorganization regime in Japan. Unlike the U.S. Bankruptcy Act, the Civil Rehabilitation Act does not have automatic stay on secured claims, nor does it allow any modification of secured claims by the rehabilitation plans. However, the Civil Rehabilitation Act has a unique procedure to restrict the rights of secured creditors, which is called “the procedure of extinguishing security interests (tanpo-ken shometsu seikyu tetsuzuki).” This procedure permits a debtor to …
Australian Insolvency Law And The 1992 Isda Master Agreement—Catalyst, Reaction, And Solution, Christopher J. Mertens
Australian Insolvency Law And The 1992 Isda Master Agreement—Catalyst, Reaction, And Solution, Christopher J. Mertens
Washington International Law Journal
The reverberations of Enron’s financial collapse were heard on an international scale. Indeed, Enron Australia’s liquidation set off a flood of concern and speculation about the International Swaps and Derivatives Association’s (“ISDA”) model documentation for derivative transactions. A December 2003 opinion of the Supreme Court of New South Wales exposed a flaw in the ISDA 1992 Master Agreement. Two provisions of the agreement operate in tandem, creating a result which operates contrary to the clear meaning of the terms. This volatile interaction of the provisions effectively shifts the risk from the parties to the swap contract to the creditors of …
The Hidden Life Of Consumer Bankruptcy Reform, Jason J. Kilborn
The Hidden Life Of Consumer Bankruptcy Reform, Jason J. Kilborn
Vanderbilt Journal of Transnational Law
This Article offers a unique perspective on the heavily revised U.S. consumer bankruptcy law, which went effect on October 17, 2005, in light of a surprising discovery: It turns out that the U.S. consumer bankruptcy system as "reformed" resembles in many critical respects the consumer bankruptcy system in place for the past six years in the Netherlands. As a result of this serendipitous U.S.-Dutch convergence, years of experience under the Dutch consumer debt relief system can provide a rare glimpse into the future of the new U.S. system. The Dutch law in practice has diverged in significant ways from legislative …
The Peripatetic Debtor: Choice Of Law And Choice Of Exemptions, Laura B. Bartell
The Peripatetic Debtor: Choice Of Law And Choice Of Exemptions, Laura B. Bartell
Law Faculty Research Publications
No abstract provided.
Debtor Discharge And Creditor Repayment In Chapter 13, Scott F. Norberg, Andrew Velkey
Debtor Discharge And Creditor Repayment In Chapter 13, Scott F. Norberg, Andrew Velkey
Faculty Publications
Consumer bankruptcy filings hit another record high in 1998, with nearly 1.4 million consumers filing for bankruptcy relief. This trend sparked a debate in Congress about means-testing chapter 7 bankruptcy filings. Proponents of reform argued that it would curtail fraud and abuse. Opponents believed that consumer debt was swamping income growth, and that the deregulation of the consumer credit market had led to overgenerous lending and hence to more bankruptcies. This is an empirical study of whether filers for chapter 13 bankruptcy cases are abusing the system, or whether debtors are truly being swamped by debt in excess of their …
Legislative Messaging And Bankruptcy Law, Lois R. Lupica, Karen Gross, Kathryn R. Heidt
Legislative Messaging And Bankruptcy Law, Lois R. Lupica, Karen Gross, Kathryn R. Heidt
Faculty Publications
This Essay grew out of many three-way conversations and multiple collaborative drafts. We began this conversation at the academic conference in 2003 celebrating the Bankruptcy Code’s upcoming 25th Anniversary. Sadly, we did not have the opportunity to finish either the conversations or to finalize this Essay before Kate Heidt’s untimely death in May 2005. Completed in her absence, this Essay is dedicated to the memory of our close friend and colleague, Professor Kathryn R. Heidt.
Subprime Lending, Suboptimal Bankruptcy: A Proposal To Amend §§ 522(F)(1)(B) And 548(A)(1)(B) Of The Bankruptcy Code To Protect Subprime Mortgage Borrowers And Their Unsecured Creditors, R. Stephen Painter Jr.
Subprime Lending, Suboptimal Bankruptcy: A Proposal To Amend §§ 522(F)(1)(B) And 548(A)(1)(B) Of The Bankruptcy Code To Protect Subprime Mortgage Borrowers And Their Unsecured Creditors, R. Stephen Painter Jr.
Loyola University Chicago Law Journal
No abstract provided.
Violência Doméstica, Rafaela Loureiro Pinheiro Furlan, Juliana Mattar, Pedro Fida
Violência Doméstica, Rafaela Loureiro Pinheiro Furlan, Juliana Mattar, Pedro Fida
Rafaela Loureiro Pinheiro Furlan
No abstract provided.
International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford
International Insolvency Case Venue In The European Union: The Parmalat And Daisytek Controversies, Samuel Bufford
Journal Articles
The European Union Insolvency Regulation (the EU Regulation) is a giant step forward in promoting international cooperation among EU countries for cross-border insolvency proceedings. It adopts a modified universalist solution to cross-border proceedings insofar as they are located within the EU. However, experience has shown that it needs improvement to work effectively. A venue battle now rages between courts of several European countries over which country's courts will administer particular cross-border proceedings and how the center of main interest is to be determined for this purpose.
This Article begins with a detailed examination of the two principal cases where conflicts …
The Hidden Life Of Consumer Bankruptcy Reform: Danger Signs For The New U.S. Law From Unexpected Parallels In The Netherlands, 39 Vand. J. Transnat'l L. 77 (2006), Jason Kilborn
UIC Law Open Access Faculty Scholarship
This Article offers a unique perspective on the heavily revised U.S. consumer bankruptcy law, which went effect on October 17, 2005, in light of a surprising discovery: It turns out that the U.S. consumer bankruptcy system as "reformed" resembles in many critical respects the consumer bankruptcy system in place for the past six years in the Netherlands. As a result of this serendipitous U.S.-Dutch convergence, years of experience under the Dutch consumer debt relief system can provide a rare glimpse into the future of the new U.S. system. The Dutch law in practice has diverged in significant ways from legislative …
Continuity, Change And Innovation In Emerging Consumer Bankruptcy Systems: Belgium And Luxembourg, 14 Am. Bankr. Inst. L. Rev. 69 (2006), Jason Kilborn
UIC Law Open Access Faculty Scholarship
No abstract provided.
Chapter 15 And The Advancement Of International Cooperation In Cross-Border Bankruptcy Proceedings, Bryan Stark
Chapter 15 And The Advancement Of International Cooperation In Cross-Border Bankruptcy Proceedings, Bryan Stark
Richmond Journal of Global Law & Business
No abstract provided.
Bapcpa And Commercial Credit: Who (Sic) Do You Trust, David G. Epstein
Bapcpa And Commercial Credit: Who (Sic) Do You Trust, David G. Epstein
Law Faculty Publications
Trying to understand and apply the many different provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) has caused people to yearn for the "good old days." At the National Conference of Bankruptcy Judges' (NCBJ) Annual Meeting in San Antonio in October 2005, there was a lot of talk about the "good old days" and some singing "'bout the good old days" at the NCBJ "Final Night Dinner" by a larger than life (at least as large as Sally Struthers), Wynonna Judd. And this has caused me to remember a daytime television show from my good …
Honing A Blunt Instrument: Refining The Use Of Judicial Estoppel In Bankruptcy Nondisclosure Cases, Robert F. Dugas
Honing A Blunt Instrument: Refining The Use Of Judicial Estoppel In Bankruptcy Nondisclosure Cases, Robert F. Dugas
Vanderbilt Law Review
For individuals and organizations facing financial distress, modern bankruptcy law provides a statutory respite from creditors and mounting debt. When a debtor's liabilities irretrievably exceed its available assets, the law provides a forum for interested parties to efficiently assess and equitably divide or restructure a maximized pie of debtor value. What happens, however, when an individual or corporate debtor, either through fraud or mistake, "hides" a piece of the pie?
European Implications Of Bankruptcy Venue Shopping In The U.S., David A. Skeel Jr.
European Implications Of Bankruptcy Venue Shopping In The U.S., David A. Skeel Jr.
All Faculty Scholarship
No abstract provided.
The New Chapter 15 Of The Bankruptcy Code: A Step Toward Erosion Of National Sovereignty, John J. Chung
The New Chapter 15 Of The Bankruptcy Code: A Step Toward Erosion Of National Sovereignty, John J. Chung
Northwestern Journal of International Law & Business
If Chapter 15 and universalism offer uncertain benefits but certain harms, why have their principles gained such a following? One explanation is that Chapter 15 is part of today's growing trend to internationalize American law. Much like the inclination of some Supreme Court Justices to look to foreign law for guidance, it appears many bankruptcy scholars, judges, and practitioners have developed a taste for international trendiness. This article contends that the debate surrounding Chapter 15 in bankruptcy circles is a variation of the ongoing national debate regarding the citation of foreign law in Supreme Court opinions. This internationalism is a …
Corporate Complicity Claims: Why There Is No Innocent Decison-Maker Exception To Imputing An Officer's Wrongdoing To A Bankrupt Corporation, Jonathan Witmer-Rich
Corporate Complicity Claims: Why There Is No Innocent Decison-Maker Exception To Imputing An Officer's Wrongdoing To A Bankrupt Corporation, Jonathan Witmer-Rich
Law Faculty Articles and Essays
This Article evaluates the innocent decision-maker exception in light of the doctrinal foundations of the in pari delicto defense and the Wagoner rule, general principles of agency law, and the lower court decisions that address these issues. It concludes that the innocent decision-maker exception is a doctrinal error, traceable to the logical misstep of a single lower court whose decision continues to be mistakenly followed. The innocent decision-maker exception is inconsistent with the basic principles of agency law that underlie imputation in the context of in pari delicto and the Wagoner rule. No court of appeals has explicitly addressed the …
Inside The Bankruptcy Judge's Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Inside The Bankruptcy Judge's Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Vanderbilt Law School Faculty Publications
Specialization is common in medicine. Doctors become oncologists, radiologists, urologists, or even hernia repair specialists. Specialization is also common among practicing lawyers, who become estate planners or products liability lawyers or securities litigators. Judges, however, have historically been generalists who preside over any and all cases. This requires that judges become acquainted with the rules of civil procedure, the rules of criminal procedure, the evidentiary rules applicable to both civil and criminal cases, and the substantive law in almost every area. From the simplest slip-and-fall to the most complicated antitrust case, and nearly every civil and criminal action in between, …
The "Priority Statute" - The United States' "Ace-In-The-Hole", 39 J. Marshall L. Rev. 1205 (2006), Richard H.W. Maloy
The "Priority Statute" - The United States' "Ace-In-The-Hole", 39 J. Marshall L. Rev. 1205 (2006), Richard H.W. Maloy
UIC Law Review
No abstract provided.
2005: A Consumer Bankruptcy Odyssey, Gary Neustadter
2005: A Consumer Bankruptcy Odyssey, Gary Neustadter
Faculty Publications
Congress has concluded that the voyage of consumer bankruptcy in the United States is off course and that some of its crew - consumer bankruptcy attorneys and bankruptcy judges - no longer can be completely trusted at the helm. Following years of drama reminiscent of the 1914 silent film serial "Perils of Protection Act of 2005 ("the Act"). Save perhaps the 1938 introduction of Chapter XIII, the correction presents the most far reaching changes in consumer bankruptcy law since the adoption of the Bankruptcy Act of 1898. These changes come little more than a decade after Congress established a National …
Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow
Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow
Articles
The collapses of Yukos, Parmalat, and other international juggernauts have focused scholarly attention on the failure of multinational enterprises. Even what one might consider "American" companies, such as Chicago-based United Airlines, have made clear in their restructuring plans that their operations have profound effects on the dozens of nations around the globe where they transact business. Government and quasi-government reform efforts to regulate these cross-border insolvencies have abounded, including among others, the UNCITRAL Model Law on Cross-Border Insolvency. UNCITRAL is also building on World Bank and INSOL efforts at promulgating a Legislative Guide for "best practices" bankruptcy codes. Scholars vary …
Credit Markets, Exemptions, And Households With Nothing To Exempt, Richard M. Hynes
Credit Markets, Exemptions, And Households With Nothing To Exempt, Richard M. Hynes
Faculty Publications
American bankruptcy law has offered a "fresh start" in every state for over one hundred years. As a result, econometric studies of consumer bankruptcy often focus on one of the few aspects of the law that has varied significantly across time and across states: exemptions. Professors Gropp, Scholz and White published the first article to test the effect of exemptions on credit markets. Consistent with theory, they found that residents of states with larger exemptions pay higher interest rates than those in states with lower exemptions andface an increased probability that they will be denied credit. These effects were most …
Bankruptcy And State Collections: The Case Of The Missing Garnishments, Richard M. Hynes
Bankruptcy And State Collections: The Case Of The Missing Garnishments, Richard M. Hynes
Faculty Publications
Recent bankruptcy reforms were spurred in part by a bankruptcy filing rate that has more than doubled in the last ten years and that has risen by approximately six hundred percent over the last generation. Some attribute this surge in filings to Americans' greater willingness to avoid debts by declaring bankruptcy. Most academics, however, argue that more Americans are forced into bankruptcy by crushing debt burdens and aggressive collections techniques. Surprisingly, the literature has largely ignored data on the use of these collections techniques. This Article examines the use of one of the most important collections tools, garnishment, in two …