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Robbing Your Rival's Piggybank: The Third Circuit Affirms Bad Faith Dismissals In Involuntary Bankruptcies After In Re Forever Green Athletic Fields, Inc., Nathan L. Rudy 2016 Villanova University Charles Widger School of Law

Robbing Your Rival's Piggybank: The Third Circuit Affirms Bad Faith Dismissals In Involuntary Bankruptcies After In Re Forever Green Athletic Fields, Inc., Nathan L. Rudy

Villanova Law Review

No abstract provided.


Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson 2016 Brooklyn Law School

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating ...


Kaplan V. Dutra, 132 Nev. Adv. Op. No. 80 (Dec. 1, 2016) (En Banc), Hayley Cummings 2016 Nevada Law Journal

Kaplan V. Dutra, 132 Nev. Adv. Op. No. 80 (Dec. 1, 2016) (En Banc), Hayley Cummings

Nevada Supreme Court Summaries

The Court, sitting en banc, reviewed a certified question from the United States Bankruptcy Court, determining that under NRS 21.010(1)(u) a debtor is entitled to a personal injury exemption of $16,150 for each personal injury claim.


Governmental Intervention In An Economic Crisis, Robert Rasmussen, David A. Skeel Jr. 2016 University of Southern California

Governmental Intervention In An Economic Crisis, Robert Rasmussen, David A. Skeel Jr.

University of Southern California Legal Studies Working Paper Series

This paper articulates a framework both for assessing the various government bailouts that took place at the onset of Great Recession and for guiding future rescue efforts when they become necessary. The goals for those engineering a bailout should be to be as transparent as possible, to articulate clearly the reason for the intervention, to respect existing priorities among investors, to exercise control only at the top level where such efforts can be seen by the public, and to exit as soon as possible. By these metrics, some of the recent bailouts should be applauded, while others fell short. We ...


Excessive State Debt: A New Approach To A Growing Problem, Vincent Buccola 2016 University of Pennsylvania

Excessive State Debt: A New Approach To A Growing Problem, Vincent Buccola

Penn Wharton Public Policy Initiative

Economists and political observers agree state governments defaulting on their debt obligations is a growing concern. How best to aid struggling states, however, is a point of contention. This Issue Brief makes a case against ex post restructuring measures, specifically bankruptcy modeled on Chapter 9 of the U.S. Bankruptcy Code, and in favor of ex ante debt mitigation action. In particular, it introduces tax-credit borrowing (TCB) as a potential commitment device for states that would allow for the creation of super-priority, risk-free debt. TCB ensures that states internalize the risk of default and avoids the moral hazard problem of ...


Student Loans And Surmountable Access-To-Justice Barriers, Jason Iuliano 2016 University of Florida Levin College of Law

Student Loans And Surmountable Access-To-Justice Barriers, Jason Iuliano

Florida Law Review

Findings and conclusions from the 2012 American Bankruptcy Law Journal Study and Response to Professor Rafael I. Pardo’s latest piece, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy.


Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr. 2016 University of California - Berkeley

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Kenneth Ayotte

This article provides a framework for analyzing side agreements in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by one party to remain silent – to waive some procedural right they would otherwise have under the Bankruptcy Code – at potentially crucial points in the reorganization process. Using simplified examples, we show that side agreements create benefits in some instances, but parties to a side agreement may have incentive to contract for specific performance or excessive stipulated damages that impose negative externalities on non-parties to the agreement. A promise not to ...


Who Owns Kim Basinger? The Right Of Publicity's Place In The Bankruptcy System, Jody C. Campbell 2016 University of Georgia School of Law

Who Owns Kim Basinger? The Right Of Publicity's Place In The Bankruptcy System, Jody C. Campbell

Journal of Intellectual Property Law

No abstract provided.


Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye 2016 University of Kentucky College of Law

Art & The “Public Trust” In Municipal Bankruptcy, Brian L. Frye

Law Faculty Scholarly Articles

In 2013, the City of Detroit filed the largest municipal bankruptcy action in United States history, affecting about $20 billion in municipal debt. Unusually, Detroit owned its municipal art museum, the Detroit Institute of Arts (“DIA”) and all of the works of art in the DIA collection, which were potentially worth billions of dollars. Detroit’s creditors wanted Detroit to sell the DIA art in order to satisfy its debts. Key to the confirmation of Detroit’s plan of adjustment was the DIA settlement, under which Detroit agreed to sell the DIA art to the DIA corporation in exchange for ...


The Personal Side Of Harmonizing European Insolvency Law, 2016 Selected Works

The Personal Side Of Harmonizing European Insolvency Law

Jason Kilborn

This article advances detailed proposals for a European Personal Insolvency Directive as part of the European Commission’s ongoing insolvency initiative. The Commission has been struggling with soft coordination of insolvency proceedings under the divergent national laws in the EU since 2000, and in 2012, it began taking steps toward substantive harmonization of these laws. A process firmly concentrated on business restructuring has recently expanded to personal insolvency writ large, including consumer debtors. On both business and personal procedures, the Commission has announced that a legislative instrument is forthcoming by the end of 2016. The process thus far, however, has ...


Sovereign Debt: Now What?, Anna Gelpern 2016 Georgetown University Law Center

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 ...


Ten Years After Consumer Bankruptcy Reform In The United States: A Decade Of Diminishing Hope And Fairness, Robert J. Landry III 2016 The Catholic University of America, Columbus School of Law

Ten Years After Consumer Bankruptcy Reform In The United States: A Decade Of Diminishing Hope And Fairness, Robert J. Landry Iii

Catholic University Law Review

The tenth anniversary of the effective date of Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Reform Act), the largest reform to the consumer bankruptcy in the United States in a quarter of a century, will be marked in October of 2015. Prior to, and since its passage, scores of scholars have theorized about the impact of the Reform Act. The vast majority of research since its passage shows that the Reform Act has not had a long-term impact on filing rates. With this backdrop, the paper explores how the virtues of fairness for creditors and hope for individuals ...


Brief For Amici Curiae Law Professors In Support Of Petitioners, In Re Jevic (Czyzewski V. Jevic Holding Corp.), Melissa B. Jacoby, Jonathan C. Lipson 2016 University of North Carolina School of Law

Brief For Amici Curiae Law Professors In Support Of Petitioners, In Re Jevic (Czyzewski V. Jevic Holding Corp.), Melissa B. Jacoby, Jonathan C. Lipson

Faculty Publications

Question Presented:

Whether a bankruptcy court may approve a contested settlement agreement that distributes assets in violation of the Bankruptcy Code’s statutory priority rules and that departs from long-held absolute priority principles underlying the American bankruptcy system.


From Dust We Are And To Dust We Will Return: Eu's Utopia, Greece's Bankruptcy, Carolina Kripinski 2016 Barry University School of Law

From Dust We Are And To Dust We Will Return: Eu's Utopia, Greece's Bankruptcy, Carolina Kripinski

Barry Law Review

No abstract provided.


Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh 2016 Barry University School of Law

Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh

Barry Law Review

No abstract provided.


Tower Homes V. Heaton, Nev. Adv. Op. 62, (Aug. 12, 2016), Sydney Campau 2016 University of Nevada, Las Vegas -- William S. Boyd School of Law

Tower Homes V. Heaton, Nev. Adv. Op. 62, (Aug. 12, 2016), Sydney Campau

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that granting creditors control over a debtor’s legal malpractice claim and any proceeds resulting from the action constituted an improper assignment of a legal malpractice claim that was contrary to public policy.


"The End Of Bankruptcy" Revisited, Robert Rasmussen 2016 University of Southern California

"The End Of Bankruptcy" Revisited, Robert Rasmussen

University of Southern California Legal Studies Working Paper Series

The End of Bankruptcy, published in 2002, set forth a view of corporate bankruptcy based on a theory of the firm. It argued that, for a traditional Chapter 11 proceeding to be necessary, it had to be the case that a firm had going concern surplus, that the firm’s investors cannot realign the capital structure through normal bargaining, and that a going-concern sale is not possible. Changes outside of bankruptcy had made each of these necessary preconditions less common. This chapter revisits this work, and shows that, despite the upheaval of the Great Recession, it remains the case that ...


Who Gets Paid? Section 365(N) Royalty Payments Under "Zombie Licenses" After A Sale Of Ip, Christopher G. Bradley 2016 University of Kentucky

Who Gets Paid? Section 365(N) Royalty Payments Under "Zombie Licenses" After A Sale Of Ip, Christopher G. Bradley

Christopher Bradley

This short article discusses the Bankruptcy Code's unusual treatment of certain intellectual property licenses. First, it gives a brief overview of § 365(n) of the Bankruptcy Code. It then provides a short analysis of a difficult but important question: If a licensee of a debtor’s intellectual property opts to retain its license rights under § 365(n), who should receive the stream of licensing payments in the event that the IP is sold: the buyer of the IP, or the debtor in bankruptcy? The answer that has emerged in some of the case law is somewhat surprising -- after providing ...


Forum Selling, Daniel M. Klerman, Greg Reilly 2016 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 ...


Book Review: Comparative Consumer Bankruptcy, Stephanie Ben-Ishai 2016 Osgoode Hall Law School of York University

Book Review: Comparative Consumer Bankruptcy, Stephanie Ben-Ishai

Stephanie Ben-Ishai

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


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