Bankruptcy Law Commons^™

The Modern Administrative State: Why We Have ‘Big Government’ And How To Run And Reform Bureaucratic Organizations, Sean Y. Sakaguchi

CMC Senior Theses

This work asserts that bureaucratic organization is not only an inevitable part of the modern administrative state, but that a high quality bureaucracy within a strongly empowered executive branch is an ideal mechanism for running government in the modern era. Beginning with a philosophical inquiry into the purpose of American government as we understand it today, this paper responds to criticisms of the role of expanded government and develops a framework for evaluating the quality of differing government structures. Following an evaluation of the current debate surrounding bureaucracies (from both proponents and critics), this thesis outlines the lessons and principles …

Oh, What A Relief It (Sometimes) Is: An Analysis Of Chapter 7 Bankruptcy Petitions To Discharge Student Loans, Aaron N. Taylor, Daniel Sheffner

All Faculty Scholarship

Conventional wisdom dictates that it is all-but-impossible to discharge student loans in bankruptcy. This contention, however, misstates the fact that bankruptcy discharge of student loans is possible—and it happens. This Article presents a statistical analysis of what happened when Chapter 7 bankruptcy petitioners in the First and Third federal judicial circuits filed 523(a)(8) adversary proceedings—or proceedings to discharge their student loan debt due to an “undue hardship.” In our analysis, we found undue hardship discharge rates of 54% in the First Circuit and 24% in the Third Circuit. But more significantly, we found that undue hardship determinations were relatively rare. …

Sovereign Debt: Now What?, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

The sovereign debt restructuring regime looks like it is coming apart. Changing patterns of capital flows, old creditors’ weakening commitment to past practices, and other stakeholders’ inability to take over, or coalesce behind a viable alternative, have challenged the regime from the moment it took shape in the mid-1990s. By 2016, its survival cannot be taken for granted. Crises in Argentina, Greece, and Ukraine since 2010 exposed the regime’s perennial failures and new shortcomings. Until an alternative emerges, there may be messier, more protracted restructurings, more demands on public resources, and more pressure on national courts to intervene in disputes …

Regulating Public Offerings Of Truly New Securities: First Principles, Merritt B. Fox

Faculty Scholarship

The public offering of truly new securities involves purchases by investors in sufficient number and in small enough blocks that each purchaser’s shares can reasonably be expected to be freely tradable in a secondary market that did not exist before the offering. Increasing the ability of small and medium-sized enterprises (SMEs) to make such offerings has been the subject of much recent discussion.

At the time that a firm initially contemplates such an offering, unusually large information asymmetries exist between its insiders and potential investors. These can lead to severe adverse-selection problems that prevent a substantial portion of worthy offerings …

Better Than Bankruptcy?, Andrew B. Dawson

Articles

According to many in the bankruptcy field, small business debtors are increasingly turning to state debtor-creditors laws as an alternative to federal bankruptcy relief. One particularly popular state law is the assignment for the benefit of creditors. The conventional wisdom is that these procedures provide a state law alternative to liquidate a business.

This article reports the results of an original empirical study that challenges this conventional wisdom. Gathering data from every assignment for the benefit of creditors in a major metropolitan area over a three-year period, this study shows that debtors and their secured creditors are using these procedures …

Designing Corporate Bailouts, Antonio E. Bernardo, Eric L. Talley, Ivo Welch

Faculty Scholarship

Although common economic wisdom suggests that government bailouts are inefficient because they reduce incentives to avoid failure and induce excessive entry by marginal firms, in practice bailouts are difficult to avoid for systemically significant enterprises. Recent experience suggests that bailouts also induce litigation from shareholders and managers complaining about expropriation and wrongful termination by the government. Our model shows how governments can design tax-financed corporate bailouts to reduce these distortions and points to the causes of inefficiencies in real-world implementations such as the Troubled Asset Relief Program. Bailouts with minimal distortion depend critically on the government’s ability to expropriate shareholders …

Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli

Brooklyn Journal of Corporate, Financial & Commercial Law

Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …

Of Progressive Property And Public Debt, Christopher K. Odinet

Christopher K. Odinet

The Value Of A Life Story And Why The Right To An Individual's Life Story Should Not Escape Bankruptcy, Robert Sutton

Barry Law Review

No abstract provided.

Horton V. O'Cheskey Opinion, Fifth Circuit Court Of Appeals

Historical and Topical Legal Documents

No abstract provided.

Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, 27 Pace Int'l L. Rev. 306 (2015), Jason J. Kilborn

Jason Kilborn

No abstract provided.

Of More Than Usual Interest: The Taxing Problem Of Debt Principal, Charlene D. Luke

Seattle University Law Review

Leverage is an essential but often troubling component of the U.S. market. The financial crisis highlighted the risks and complexity of a leverage web that includes flesh-and-blood people from all walks of life and paper people from all corners of the business and investment world. In the tax area, the potentially problematic incentive effects of interest deductibility have long engaged a wide array of tax commentators and policymakers. While interest deductibility rightly receives widespread scrutiny, a more comprehensive approach to leverage is needed. This Article focuses on the surprisingly complicated tax treatment of cash (and cash equivalent) borrowings. This Article …

Bankruptcy Law, Hon. Kevin R. Huennekens, Nathan Kramer

University of Richmond Law Review

This article will cover both consumer and business bankruptcy issues, and is limited primarily to decisions by courts within the Fourth Circuit since mid-2012. Despite these general parameters, because bankruptcy is federal law, there are some cases outside the Fourth Circuit that are included due to their influential and instructive nature. The intention of this update is to provide bankruptcy practitioners in Virginia with concise, yet compre-hensive, case summaries that will prove to be a valuable researchtool.

Felonious, Erroneous, It’S All Odious: A Story Of Debt Gone Wrong, Virginia M. Brown

Fordham Law Review

Iraq is paying off debt from Saddam Hussein’s rule. South Africa is paying off debt obligations incurred under apartheid rule. Argentina is renegotiating debts that can be traced back to a de facto military-civilian regime that was ousted in 1976. There are numerous examples in which sovereigns are paying off debts that previous governing regimes incurred while oppressing their citizens. Should sovereigns be obligated to pay these debts? Were the debts really incurred by the sovereign or were they incurred by the governing regime in question? What if the lender knew in advance what the proceeds would be used for? …

Becker V. Becker, 131 Nev. Adv. Op. 85 (Oct. 29, 2015), Paul George

Nevada Supreme Court Summaries

In response to a certified question by the United States Bankruptcy Court for the District of Nevada, the Court concluded that under NRS 21.090(1)(bb) a debtor can exempt his stock in the corporations described in NRS 78.746(2), but his economic interest in that stock is still subject to the charging order remedy in NRS 78.746(1).

A New Fulcrum Point For City Survival, Samir D. Parikh

William & Mary Law Review

Municipalities have historically enjoyed immense stability. This era of tranquility is over, and fiscal deterioration is accelerating. Policymakers and scholars have struggled to formulate debt restructuring options; almost all have embraced federal bankruptcy law. But this resource-draining process is not the fulcrum point for any meaningful solution to municipal demise. Indeed, for the vast majority of distressed municipalities, the lever of municipal recovery will not turn on the solutions that have been offered to date. This Article radically shifts the municipal recovery debate by arguing that state law is the centralized point at which officials can exert the necessary amount …

Unfair Practices And Practicing Attorneys: Should The Fair Debt Collection Practices Act Apply To Communications Between Debt Collectors And Debtors' Attorneys?, Yosefa A. Englard

St. John's Law Review

(Excerpt)

This Note proceeds in three parts. Part I discusses the history of the Act and Congress's intent behind its enactment. Part I also analyzes some of the Act's provisions relating to debt collectors. Part II examines in detail the three current approaches taken by the circuit courts for determining the applicability of the Act to communications between debt collectors and debtors' attorneys. Part III argues that none of the current approaches appropriately resolves the issue. Additionally, Part III proposes a simple two-step inquiry for courts to employ when attempting to resolve whether communications toward a debtor's attorney are actionable …

Implementing Symmetric Treatment Of Financial Contracts In Bankruptcy And Bank Insolvency, Edward Janger

Faculty Scholarship

No abstract provided.

A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.

All Faculty Scholarship

Given the ongoing work on a multilateral restructuring process for sovereign debt in the UN, consideration of the content and implementation of a sovereign debt restructuring mechanism (SDRM) is timely. The framework and content of the SDRM proposed here differs from earlier proposals in several important respects. For the classification and supermajority voting of claims in the approval a restructuring plan, it would mimic the structure and operation of the model collective action clauses (Model CACs) proposed by the International Capital Markets Association. Restructuring under a qualified sovereign debt restructuring law (QSDRL) would be guided by four principles: (i) observe …

The Gendered Dimensions Of Social Insurance For The "Non-Poor" In Canada, Stephanie Ben-Ishai

Stephanie Ben-Ishai

This article emerges from an exploration of the meanings of consumer bankruptcy in the current context of Canadian society, as well as the role consumer bankruptcy plays in shaping this context. Examining consumer bankruptcy through the lens of gender relations, the claim is made that Canadian consumer bankruptcy legislation, policies, practices, and accompanying discourses are implicated in the causation and perpetuation of the conditions of marginalization and subordination endured by women who experience long-term poverty. These women are affected not only in terms of access to the bankruptcy system, but also by the broader implications of the delivery of consumer …