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Through The Lens Of Innovation, Mirit Eyal-Cohen 2015 University of Alabama School of Law

Through The Lens Of Innovation, Mirit Eyal-Cohen

Mirit Eyal-Cohen

The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of innovation. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Innovation turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviations as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Using ...


Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson 2015 Palmer & Manuel LLP

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.


Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson 2015 Palmer & Manuel LLP

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.


Examining Success, Jonathan C. Lipson 2015 Temple University

Examining Success, Jonathan C. Lipson

Jonathan C. Lipson

Chapter 11 of the Bankruptcy Code presumes that managers will remain in possession and control of a corporate debtor. This presents an obvious agency problem: these same managers may have gotten the company into trouble in the first place. The Bankruptcy Code thus includes checks and balances in the reorganization process, one of which is supposed to be an “examiner,” a private individual appointed to investigate and report on the debtor’s collapse.

We study their use in practice. Extending prior research, we find that examiners are exceedingly rare, despite the fact that they should be “mandatory” in large cases ...


Forum Selling, Daniel M. Klerman, Greg Reilly 2015 USC Law School

Forum Selling, Daniel M. Klerman, Greg Reilly

University of Southern California Legal Studies Working Paper Series

Forum shopping is problematic because it may lead to forum selling. For diverse motives, including prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer, and ...


Flexible Finality In Bankruptcy: The Right To Appeal A Denial Of Plan Confirmation, Joseph L. Nepowada 2015 Barry University

Flexible Finality In Bankruptcy: The Right To Appeal A Denial Of Plan Confirmation, Joseph L. Nepowada

Joseph L Nepowada

This Article examines the current state of the law interpreting what “finality” means in context of a bankruptcy proceeding and what effect that interpretation has on the appealability of certain orders, such as the denial of plan confirmation under a Chapter 13 bankruptcy proceeding. The article highlights nine courts of appeals and their decisions concerning the appealability of a denial of a plan confirmation and it is apparent that the courts are split with three courts of appeal allowing a debtor to appeal a denial of plan confirmation as a matter of right, while six courts of appeal will deny ...


Worlds Colliding: Competition Policy And Bankruptcy Fire Sales, Max Huffman 2015 Indiana University School of Law -- Indianapolis

Worlds Colliding: Competition Policy And Bankruptcy Fire Sales, Max Huffman

Max Huffman

Modern business bankruptcies commonly involve mergers and acquisitions pursued as “fire sales.” The bankruptcy forum and the unique incentives bankruptcy creates allow those acquisitions to take place with reduced constituent involvement and regulatory oversight. Those fire sale transactions may present antitrust concerns where they lead to undue concentration in the relevant marketplace. This paper studies the poorly explored tension between bankruptcy law, which favors mergers and acquisitions as value-maximizing propositions and creates opportunity for fire sales, and antitrust law, which disfavors combinations leading to undue concentrations of economic power. The substantial tension manifests both as a matter of substantive law ...


Pari Passu's Golden Fossils, Anna Gelpern 2015 Georgetown University Law Center

Pari Passu's Golden Fossils, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

U.S. federal court rulings against Argentina since 2012 have turned the pari passu clause in sovereign bond contracts into the most promising debt collection tool against immune governments since the days of gunboat diplomacy. The large literature on pari passu (“equal step” in Latin) assumes that the clause had not been used for enforcement before the late 1990s, and that it was first construed by a Belgian court in a case against Peru in the year 2000. The Belgian decision was criticized for wrongly concluding that pari passu promised ratable payment to all holders of Peru’s external debt ...


Saving Homes? Bankruptcies And Loan Modifications In The Foreclosure Crisis, Alan M. White, Carolina Reid 2015 University of Florida Levin College of Law

Saving Homes? Bankruptcies And Loan Modifications In The Foreclosure Crisis, Alan M. White, Carolina Reid

Florida Law Review

Do homeowner bankruptcy filings work to delay or prevent home foreclosures, and how do they compare to voluntary loan modifications specifically targeted to mortgage relief? The 2007–2012 financial crisis provides a unique opportunity to assess whether bankruptcy can help homeowners avoid the negative consequences of over-indebtedness and mortgage default. This empirical study analyzes a large, loan-level mortgage dataset to determine which variables are associated with delinquency and bankruptcy filing, and in turn, whether filing bankruptcy or receiving a loan modification measurably influences subsequent loan outcomes (e.g., foreclosure sale, prepayment, or default cure). Overall, we find that bankruptcy filings ...


Choosing The "Per-Debtor" Approach To Plan Confirmation In Multi-Debtor Chapter 11 Proceedings, Suzanne T. Brindise 2015 Northwestern University School of Law

Choosing The "Per-Debtor" Approach To Plan Confirmation In Multi-Debtor Chapter 11 Proceedings, Suzanne T. Brindise

Northwestern University Law Review

No abstract provided.


The Value Of Soft Variables In Corporate Reorganizations, Michelle M. Harner 2015 University of Maryland School of Law

The Value Of Soft Variables In Corporate Reorganizations, Michelle M. Harner

Faculty Scholarship

When a company is worth more as a going concern than on a liquidation basis, what creates that additional value? Is it the people, management decisions, the simple synergies of the operating business, or some combination of these types of soft variables? And perhaps more importantly, who owns or has an interest in these soft variables? This article explores these questions under existing legal doctrine and practice norms. Specifically, it discusses the characterization of soft variables under applicable law and in financing documents, and it surveys related judicial decisions. It also considers the overarching public policy and Constitutional implications of ...


An Analysis Of Mortgage Modification In Chapter 13: The Viable Options For Debtors During Primary Residence Mortgage Modification, Tara M. Parente 2015 Barry University

An Analysis Of Mortgage Modification In Chapter 13: The Viable Options For Debtors During Primary Residence Mortgage Modification, Tara M. Parente

Tara M. Parente

This paper explores viable options for debtors during primary residence mortgage modification under a Chapter 13 plan. Primarily, this paper highlights the sub-prime mortgage crisis and how it exacerbated the use of consumer bankruptcy. Furthermore, this paper explains the effects of the Bankruptcy Abuse Prevention and Consumer Prevention Act of 2005 and its limitations on a debtors' ability to modify a mortgage on a principal mortgage.


4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci 2014 Touro College Jacob D. Fuchsberg Law Center

4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci

Touro Law Review

No abstract provided.


Shooing The Vultures Away From The Consumer Bankruptcy Carcass: Attorney Fees Owed By Debtors For Marital Dissolution Are Not Domestic Support Obligations, Christopher V. Davis 2014 University of Massachusetts School of Law

Shooing The Vultures Away From The Consumer Bankruptcy Carcass: Attorney Fees Owed By Debtors For Marital Dissolution Are Not Domestic Support Obligations, Christopher V. Davis

University of Massachusetts Law Review

This Note will focus on consumer bankruptcy related to chapter 7 and chapter 13 filings. Section I provides an introduction to DSOs and the goals of enforcing them through bankruptcy. Section I also discusses the impact of DSO status on the automatic stay, discharge, priority status for property distribution of the bankruptcy estate, capability to reach exempt property, and application to attorney fees. Section II argues that, where attorney fees are not owed to a spouse, former spouse, or child, and do not fit within an impact exception, the fees are not DSOs, but instead are merely general non-secured claims ...


Discharging Student Loans Via Bankruptcy: Undue Hardship Doctrine In The First Circuit, Anthony Bowers 2014 University of Massachusetts School of Law

Discharging Student Loans Via Bankruptcy: Undue Hardship Doctrine In The First Circuit, Anthony Bowers

University of Massachusetts Law Review

Student loans are presumptively non-dischargeable through bankruptcy, but the undue hardship doctrine provides an equitable “safety valve” for the indigent. To date, the United States First Circuit Court of Appeals has yet to select a single legal test for determining undue hardship under the United States Bankruptcy Code (“Bankruptcy Code”). Within the jurisdiction of the First Circuit, bankruptcy courts are free to choose an approach to evaluate undue hardship. In an effort to ensure consistency throughout the bankruptcy courts within the First Circuit, it would be ideal if the First Circuit would choose one of the undue hardship tests. However ...


Reaffirmation Agreements In Consumer Bankruptcy Cases, Daniel A. Austin, Donald R. Lassman 2014 University of Massachusetts School of Law

Reaffirmation Agreements In Consumer Bankruptcy Cases, Daniel A. Austin, Donald R. Lassman

University of Massachusetts Law Review

The following is from Chapter II of our book, Reaffirmation Agreements in Consumer Bankruptcy Cases. This chapter sets forth the debtor’s obligations in connection with reaffirmation of secured debt.


Alternative Dispute Resolution In U.S. Bankruptcy Practice, Jacob A. Esher 2014 University of Massachusetts School of Law

Alternative Dispute Resolution In U.S. Bankruptcy Practice, Jacob A. Esher

University of Massachusetts Law Review

The use of ADR in bankruptcy cases, while firmly established in concept across the nation, has been realized in a minority of jurisdictions. Mediation training of judges, lawyers and professionals of other disciplines, together with the continued development of ADR programs, is necessary to achieve the vision of a judicial system in which both adjudicative and non-adjudicative, or negotiative, dispute resolution services are available to all parties in all cases.


The Changing Practice Of Bankruptcy Law: An Analysis Of How Bankruptcy Practice Has Changed In The Last Decade, Michael Goldstein, Samantha Einhorn, Jill L. Phillips 2014 University of Massachusetts School of Law

The Changing Practice Of Bankruptcy Law: An Analysis Of How Bankruptcy Practice Has Changed In The Last Decade, Michael Goldstein, Samantha Einhorn, Jill L. Phillips

University of Massachusetts Law Review

The practice of bankruptcy law has changed drastically over the last decade. An attorney starting out in the field in 2009 faces different issue than one who began in 1999. However, it’s not just the issues that come up with clients that make the practice so different, but the law of bankruptcy itself has changed. The economic downturn of the last eighteen months has changed the way the public views bankruptcy. The Bankruptcy Reform Act of 2005 and In re Bateman, a case decided in 2008, altered the landscape of bankruptcy practice forever. This article will walk through a ...


Time For Change: Bringing Massachusetts Homestead And Personal Property Exemptions Into The Twenty-First Century, Lee Harrington 2014 University of Massachusetts School of Law

Time For Change: Bringing Massachusetts Homestead And Personal Property Exemptions Into The Twenty-First Century, Lee Harrington

University of Massachusetts Law Review

There are presently two pieces of legislation pending on Beacon Hill that are intended to offer amendments to the Homestead Statute and Exemption Statute that would offer meaningful changes and real relief for the citizens of the Commonwealth. This article provides a brief history of the two statutory schemes, provides some comparisons to the schemes in other states, and highlights the changes sought by the proposed amendments.


Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber 2014 Pace University School of Law

Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber

Pace Law Review

In Part I of this Note, I will provide a general overview of leveraged buyouts. The discussion of how and why LBOs are implemented is particularly relevant to the application of fraudulent transfer analysis. In Part II, I will discuss fraudulent transfer law as defined by the Bankruptcy Code. In Part III, I will discuss which transfers within the LBO should be attacked under fraudulent transfer law and why; this section will focus on the various stakes of the parties involved in the leveraged buyout transaction. I will provide an overview of the specific factors that bankruptcy and federal appellate ...


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