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Bankruptcy Shopping: Domestic Venue Races And Global Forum Wars, Anthony J. Casey, Joshua C. Macey 2021 Emory University School of Law

Bankruptcy Shopping: Domestic Venue Races And Global Forum Wars, Anthony J. Casey, Joshua C. Macey

Emory Bankruptcy Developments Journal

This Article proposes reforms to bankruptcy law’s venue rules. These reforms would expand venue choice, reduce opportunistic venue shopping, and account for the rise of global forum shopping. To date, the leading proposals to reform venue selection rules for bankruptcy cases have ignored simpler alternatives that can reduce opportunistic misbehavior while preserving beneficial choice. Moreover, those proposals have focused exclusively on restricting a debtor’s choice among venues within the United States while ignoring the increasing availability and convenience of foreign courts as forums for distressed corporate debtors seeking to initiate insolvency proceedings. In this way, the proposals on ...


Government Activism In Bankruptcy, Jared A. Ellias, George Triantis 2021 Emory University School of Law

Government Activism In Bankruptcy, Jared A. Ellias, George Triantis

Emory Bankruptcy Developments Journal

It is widely recognized that bankruptcy law can stymie regulatory enforcement and present challenges for governments when regulated businesses file for Chapter 11. It is less-widely understood that bankruptcy law can present governments with opportunities to advance policy goals if they are willing to adopt tactics traditionally associated with activist investors, a strategy we call “government bankruptcy activism.” The bankruptcy filings by Chrysler and General Motors in 2009 are a famous example: the government of the United States used the bankruptcy process to help both auto manufacturers resolve their financial distress while promoting the policy objectives of protecting union workers ...


The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau 2021 Emory University School of Law

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Emory Bankruptcy Developments Journal

With expanding global vaccinations and the potential end of the COVID-19 pandemic in sight, who among us has not succumbed to daydreams of post-crisis ‘normal’ life? Still—and setting aside for now the certain obstacles on any road to public and economic health—we should not be too sanguine about the degree to which the eventual recovery will be even, including across countries. By now, the images of economic dislocation resulting from the pandemic, including empty tourist beaches, deserted town centers, and closed manufacturing plants, have become commonplace. In certain regions and countries, this dislocation and its after-effects may prove ...


Chapter 11 Under Duress, Jay Lawrence Westbrook 2021 Emory University School of Law

Chapter 11 Under Duress, Jay Lawrence Westbrook

Emory Bankruptcy Developments Journal

In this Article, the Business Bankruptcy Project (BBP) reports data from an empirical study of two samples of chapter 11 bankruptcies in the federal courts in Wilmington and Manhattan, two districts notably important in modern bankruptcy practice. While our study includes a number of interesting and important facts about the chapter 11 process in 2014 and 2018, this brief interim report centers around the loss of value arising from control by pre-bankruptcy lenders and the implications that arise from that fact. Building on other recent studies, it highlights the fact that a control transaction in many chapter 11 cases has ...


A Path Forward For The Postal Service, Laura N. Coordes 2021 Emory University School of Law

A Path Forward For The Postal Service, Laura N. Coordes

Emory Bankruptcy Developments Journal

What is the United States Postal Service (USPS)? The entity’s future, financial and otherwise, is wrapped up in the answer to this fundamental, yet surprisingly complicated, question. The postal service in the United States began as a part of the federal government, but over the years, Congress has altered its structure. Today’s USPS is an entity situated somewhere between a public, governmental agency and a private business. It has attributes resembling both, and while most observers agree that it is becoming more “privatized,” it is still subject to a significant number of laws and regulations that do not ...


Schoolbooks And Shackles: The Undue Hardship Standard And Treatment Of Student Debt At Bankruptcy, Matthew S. Farina 2021 Boston College Law School

Schoolbooks And Shackles: The Undue Hardship Standard And Treatment Of Student Debt At Bankruptcy, Matthew S. Farina

Boston College Law Review

Individual debtors who file for Chapter 7 bankruptcy can discharge most of their pre-petition debts and emerge from bankruptcy with a financial “fresh start.” Student loan debt is one of the few exceptions to this general policy. Congress created the student loan discharge exception, 11 U.S.C. § 523(a)(8), to prevent student debtors from abusing the bankruptcy system. Specifically, Congress sought to prevent students who graduated from higher education programs from discharging their debts at bankruptcy, and then beginning lucrative careers. Congress, however, included an important carve-out to this exception for debtors whose loans impose an “undue hardship ...


The Dischargeability Of Environmental Claims In Bankruptcy: Resolution To Diametrically Opposed Goals, Jason V. Stitt 2021 University of Kentucky

The Dischargeability Of Environmental Claims In Bankruptcy: Resolution To Diametrically Opposed Goals, Jason V. Stitt

Journal of Natural Resources & Environmental Law

No abstract provided.


Taking Stock Of Chapter 11, David A. Skeel Jr. 2021 University of Pennsylvania Law School

Taking Stock Of Chapter 11, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this Essay, written for a symposium honoring Sam Gerdano, I offer an assessment of current Chapter 11 theory and practice. The most distinctive feature of current Chapter 11 practice is the extent to which the parties now enter into intercreditor agreements, restructuring support agreements and other actual contracts governing their rights and responsibilities. One question raised by the dramatic shift in bankruptcy practice is whether the leading normative theory of bankruptcy, the Creditors’ Bargain Theory, is now obsolete, as some scholars have suggested. The Creditors’ Bargain Theory explains bankruptcy as a solution to coordination problems that might lead to ...


Considering Environmental Impact Under Uncommon Personal Circumstances Carey V. Commonwealth And The Storage Tank Act, Catherine M. Hillin 2021 Villanova University Charles Widger School of Law

Considering Environmental Impact Under Uncommon Personal Circumstances Carey V. Commonwealth And The Storage Tank Act, Catherine M. Hillin

Villanova Environmental Law Journal

No abstract provided.


Appraising Problems, Not Stuff, Chad J. Pomeroy 2021 St. Mary's University, San Antonio

Appraising Problems, Not Stuff, Chad J. Pomeroy

St. Mary's Law Journal

Abstract forthcoming.


Water Under The Bridge? A Look At The Proposal For A New Chapter 16 Of The Bankruptcy Code From A Comparative Law Perspective, Tobias Wetlitzky 2021 Emory University School of Law

Water Under The Bridge? A Look At The Proposal For A New Chapter 16 Of The Bankruptcy Code From A Comparative Law Perspective, Tobias Wetlitzky

Emory Bankruptcy Developments Journal

In light of the ongoing COVID-19 pandemic, bankruptcy law will play a crucial role in addressing the consequences of the global economic shutdown. Many large corporations in the U.S. will need to undergo chapter 11 bankruptcy proceedings or may attempt to reorganize their financial debt in an out-of-court workout. However, section 316(b) of the Trust Indenture Act of 1939 has long been blamed for making out-of-court restructurings practically impossible, because it requires unanimous approval from bondholders. In 2014, the National Bankruptcy Conference presented a solution for the inefficiencies in bond workouts by proposing a streamlined debt reorganization procedure ...


Bankrupting Tribes: An Examination Of Tribal Sovereign Immunity As Reparation In The Context Of Section 106(A), Joshua Santangelo 2021 Emory University School of Law

Bankrupting Tribes: An Examination Of Tribal Sovereign Immunity As Reparation In The Context Of Section 106(A), Joshua Santangelo

Emory Bankruptcy Developments Journal

This Comment concerns section 106(a) of the Bankruptcy Code, which abrogates sovereign immunity of “a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” A circuit split exists as to whether this section applies to Native Nations. The Sixth Circuit interpreted this section to maintain sovereign immunity for Native Nations in the Code, while the Ninth Circuit interpreted it to abrogate tribal sovereign immunity. This Comment argues that the Sixth Circuit’s interpretation of section 106(a) is the correct interpretation because of the unique relationship between Native Nations ...


List It Or Lose It: The Application Of Judicial Estoppel When A Debtor Fails To List A Claim, Johnathan H. Christoforatos 2021 Emory University School of Law

List It Or Lose It: The Application Of Judicial Estoppel When A Debtor Fails To List A Claim, Johnathan H. Christoforatos

Emory Bankruptcy Developments Journal

This Comment addresses the application of judicial estoppel to dismiss a debtor’s civil or administrative claim when the debtor fails to list his claim on the required schedule. Part I of this Comment analyzes the general concept of equity and the principles underlying judicial estoppel. Part II analyzes equity and judicial estoppel through the lens of the bankruptcy system. Part III presents my proposed test to determine when it is appropriate for courts to invoke judicial estoppel to dismiss a debtor’s undisclosed claim when the trustee has decided to abandon it after it has been discovered. This test ...


The Future Of Bankruptcy Appeals: Appellate Standing After Lexmark Considered, John A. Peterson III, Joshua A. Esses 2021 Emory University School of Law

The Future Of Bankruptcy Appeals: Appellate Standing After Lexmark Considered, John A. Peterson Iii, Joshua A. Esses

Emory Bankruptcy Developments Journal

The purpose of this Article is to summarize the current state of the law regarding appellate standing in bankruptcy appeals within the various sister circuit courts of the United States, and to recommend how the law of appellate review of bankruptcy court orders should be applied. We will begin with a purely descriptive summary of the law of standing in federal courts and of standing to appeal orders of bankruptcy courts specifically. From this discussion it should be clear that courts almost universally limit appellate standing of bankruptcy court orders to parties that can demonstrate that they are a person-aggrieved ...


Disorderly And Discriminatory: The Bankruptcy Code's Treatment Of Disabled Debtors, Madeline Thatcher 2021 Emory University School of Law

Disorderly And Discriminatory: The Bankruptcy Code's Treatment Of Disabled Debtors, Madeline Thatcher

Emory Bankruptcy Developments Journal

Disability benefits in bankruptcy face uncertainty under the current exemption system. The enumerated federal exemptions are poorly drafted, lack useful legislative history, and classify benefits depending on the benefit’s source. The opt out provision found in section 522(b) of the Bankruptcy Code allows jurisdictions to limit debtors to the state’s exemptions rather than the federal exemptions. Depending on which exemption the court places the disability benefits under, the benefits may be fully exempt from the bankruptcy estate, limited to the amount reasonably necessary for the debtor’s support, or unexempt. The bankruptcy courts struggle to uniformly apply ...


Continuation Of Chapter 13 Postmortem: Why Courts Should Allow Deceased Debtors' Cases To Continue Post Plan Confirmation, Alexandra R. Byrne 2021 Emory University School of Law

Continuation Of Chapter 13 Postmortem: Why Courts Should Allow Deceased Debtors' Cases To Continue Post Plan Confirmation, Alexandra R. Byrne

Emory Bankruptcy Developments Journal

A lack of direct guidance from Rule 1016 of the Federal Rules of Bankruptcy Procedure has created inconsistency among bankruptcy courts regarding whether to continue a chapter 13 case if the debtor dies post plan confirmation but before discharge. Rule 1016 allows a deceased debtor’s chapter 13 case to continue if “further administration is possible” and it is “in the best interests of the parties.” Although dismissal is appropriate if the debtor dies before plan confirmation, continuation after plan confirmation is possible and benefits all parties. The benefits of continuation post plan confirmation stem from the certainty under federal ...


The Crypto Quandary: Is Bankruptcy Ready?, Megan McDermott 2021 Northwestern Pritzker School of Law

The Crypto Quandary: Is Bankruptcy Ready?, Megan Mcdermott

Northwestern University Law Review

As the United States grapples with how best to manage a global pandemic, bankruptcy courts are bracing for the inevitable fallout from COVID-19. As we saw in the wake of the 2008 financial crisis, hard- hit businesses will need to reorganize to adjust to new conditions, while out- of-work consumers will need debt relief options. But there will be a new twist for this impending wave of bankruptcies: how should bankruptcy courts deal with crypto assets like Bitcoin? This Essay argues that the rise of cryptocurrency investments over the last decade poses serious complications for the next round of consumer ...


Lessons Learned: Robert Hoyt, Esq., Yasemin Esmen 2021 Yale University

Lessons Learned: Robert Hoyt, Esq., Yasemin Esmen

The Journal of Financial Crises

Robert Hoyt was General Counsel at the U.S. Department of Treasury between 2006 and 2009. He oversaw legal aspects of policies implemented to manage the crisis, including the rescues of Bear Stearns, AIG, and the U.S. Auto industry, the conservatorship of Fannie Mae and Freddie Mac, and the failure of Lehman Brothers, as well as the creation and implementation of the Troubled Asset Relief Program (TARP.) This Lessons Learned is based on a phone interview with Mr. Hoyt.


The Rescue Of Fannie Mae And Freddie Mac – Module A: The Conservatorships, Daniel Thompson, Rosalind Z. Wiggins 2021 Yale University

The Rescue Of Fannie Mae And Freddie Mac – Module A: The Conservatorships, Daniel Thompson, Rosalind Z. Wiggins

The Journal of Financial Crises

Two government-sponsored enterprises (GSEs), the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), dominated the secondary mortgage market during the US housing crisis, collectively holding or guaranteeing $5.3 trillion in mortgage assets by late 2007. As the crisis escalated, the two GSEs began to report substantial losses and their survival became uncertain. On September 6, 2008, the GSEs’ new regulator, the Federal Housing Finance Agency (FHFA), placed the firms into indefinite conservatorships, one step of a four-part government intervention to stabilize the enterprises. This case study evaluates the purpose and efficacy of ...


The Rescue Of American International Group Module F: The Aig Credit Facility Trust, Alec Buchholtz, Aidan Lawson 2021 Yale University

The Rescue Of American International Group Module F: The Aig Credit Facility Trust, Alec Buchholtz, Aidan Lawson

The Journal of Financial Crises

In September 2008, American International Group, Inc. (AIG) experienced a liquidity crisis. To avoid the insurance giant’s bankruptcy, the Federal Reserve Bank of New York (FRBNY) extended an $85 billion emergency secured credit facility to AIG. In connection with the credit facility, AIG issued 100,000 shares of preferred stock, with voting rights equal to and convertible into 79.9% of the outstanding shares of AIG common stock, to an independent trust (the Trust) set up by the FRBNY. Three trustees held the stock for the sole benefit of the US Treasury, exercised the rights, powers, authorities, discretions, and ...


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