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Federal Policy For Financially-Distressed Subnational Governments: The U.S. States And Puerto Rico, Cheryl D. Block 2017 Washington University School of Law

Federal Policy For Financially-Distressed Subnational Governments: The U.S. States And Puerto Rico, Cheryl D. Block

Washington University Journal of Law & Policy

This Article addresses the aftermath of the Great Recession specifically focusing on its effects at the local and statewide levels. Block uses the financial situation in Puerto Rico to detail the common presumption against the use of federal government assistance to financially-distressed subnational governments. Block then analyzes rebuttal arguments that the states and Puerto Rico might use to overcome the initial presumption against federal assistance and gives suggestions to facilitate the structuring of relief efforts in the rare circumstances when federal intervention is warranted.


Gatekeepers Gone Wrong: Reforming The Chapter 9 Eligibility Rules, Laura N. Coordes 2017 Arizona State University

Gatekeepers Gone Wrong: Reforming The Chapter 9 Eligibility Rules, Laura N. Coordes

Washington University Law Review

In order to gain access to chapter 9 bankruptcy, municipalities must demonstrate that they meet several eligibility requirements. These requirements were put in place to prevent municipalities from making rash decisions about filing for bankruptcy. Too often, however, these requirements impede municipalities from attaining desperately needed relief. This Article demonstrates that as currently utilized, the chapter 9 eligibility rules overemphasize deterrence and are not rationally connected to the reasons the chapter 9 bankruptcy system was developed. This Article therefore posits that the chapter 9 eligibility requirements should be relaxed.

To support this claim, the Article conducts a detailed analysis of ...


Judge Schermer’S Top Ten Topics To Teach, Daniel Keating 2017 Tyrrell Williams Professor of Law, Washington University School of Law

Judge Schermer’S Top Ten Topics To Teach, Daniel Keating

Washington University Journal of Law & Policy

This Article reviews the top topics under Chapter 11 bankruptcy reorganization Judge Schermer teaches to his law school students. Keating, a co-teacher of Judge Schermer’s for almost 30 years, compiled these topics from years of lecture notes, meetings, and observations of matters that excited Judge Schermer. The Author concludes that such topics under Chapter 11, including refusals to deal and the automatic stay, only cover a small fraction of Judge Schermer’s enthusiasm for teaching and bankruptcy law, with additional lists possibly needed to include other areas of his interest, such as consumer bankruptcy.


Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr. 2017 University of California - Berkeley

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

Faculty Scholarship at Penn Law

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 ...


When Social Enterprises Fail, Jonathan Brown 2017 Elisabeth Haub School of Law at Pace University

When Social Enterprises Fail, Jonathan Brown

Pace Law Faculty Publications

This Article identifies the conflicts between social enterprise legislation and bankruptcy law and presents a normative argument for a legal regime that would harmonize the two. Focusing on benefit corporations, the most widely adopted social enterprise form, this Article observes that existing law leaves uncertainty as to the role of directors at a time of financial distress and will produce outcomes that are at odds with the core goals of social enterprise legislation. Then, drawing on academic proposals for contract-based systems of bankruptcy, this Article argues that just as a firm may opt out of a corporate governance norm of ...


Attorneys' Fees And Chapter Choice: Exploring "No Money Down" Chapter 13 Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter 2017 Indiana University Maurer School of Law

Attorneys' Fees And Chapter Choice: Exploring "No Money Down" Chapter 13 Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter

Articles by Maurer Faculty

In a forthcoming article in the Southern California Law Review, the authors use new data from the ongoing Consumer Bankruptcy Project (CBP) to explore the "no money down" bankruptcy. This article summarizes that article and discusses the law that influenced the creation of "no money down" chapter 13s, which households are more likely to file with "no money down," and why this type of chapter 13 case might be less than optimal for the consumer bankruptcy system. Both studies draw data from a debtor's bankruptcy court records and written questionnaires mailed to the debtors to collect demographic information and ...


Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter 2017 Duke Law School

Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter

Faculty Scholarship

Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth is that the majority of the half-million families each year that seek refuge in chapter 13 bankruptcy will not achieve the debt relief of a discharge. Prior research found that those who drop out of bankruptcy quickly endure the serious financial struggles that they had before bankruptcy—now even worse off for having spent thousands of ...


National Study Of Individual Chapter 11 Bankruptcies, Richard M. Hynes, Anne Lawton, Margaret Howard 2017 Michigan State University College of Law

National Study Of Individual Chapter 11 Bankruptcies, Richard M. Hynes, Anne Lawton, Margaret Howard

Faculty Publications

No abstract provided.


Rethinking Chapter 13, Lawrence Ponoroff 2017 Michigan State University College of Law

Rethinking Chapter 13, Lawrence Ponoroff

Faculty Publications

No abstract provided.


Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey 2017 Indiana University Maurer School of Law

Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black Churches filing ...


"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne 2017 Indiana University Maurer School of Law

"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer the law ...


The Cerebral Hercules And The Bankruptcy Hydra: How Judge Schermer Slayed A Multi-Headed Monster While Deep In The Heart Of Texas (And What Any Of This Lone Star State-Grecian Hero Analogy Has To Do With Just A Little Bit Of Yiddish), Charles E. Rendlen III, Abigail B. Willie 2017 Judge on the U.S. Bankruptcy Court for the Eastern District of Missouri

The Cerebral Hercules And The Bankruptcy Hydra: How Judge Schermer Slayed A Multi-Headed Monster While Deep In The Heart Of Texas (And What Any Of This Lone Star State-Grecian Hero Analogy Has To Do With Just A Little Bit Of Yiddish), Charles E. Rendlen Iii, Abigail B. Willie

Washington University Journal of Law & Policy

This Article revisits Judge Barry Schermer’s approaches to complex matters as a bankruptcy mediator. In Part I, Judge Rendlen explains Judge Schermer’s jurisprudence while mediating the particularly complicated Chapter 11 bankruptcy case, In re U.S. Fidelis, Inc., which helped attain a decision that prevented the estate’s assets drying up in litigation and protect hundreds of thousands of victims of deceptive practices by U.S. Fidelis. In Part II, Willie attests to Judge Schermer’s humanity, which allows him to focus on important underlying matters rather than simply attaining a resolution.


What Makes A Good Teacher?, David L. Going 2017 Washington University in St. Louis

What Makes A Good Teacher?, David L. Going

Washington University Journal of Law & Policy

This Article explores Judge Barry Schermer’s approach to teaching, both in the courtroom and in the classroom. Going recounts some of his interactions before Schermer during his practice as well as teaching alongside him at Washington University School of Law. The Author narrows on Schermer’s performance as an animated and committed teacher, as well as his kind and approachable demeanor, as ways of drawing both students and advocates into the intricacies of bankruptcy law.


Lessons Learned While Clerking, Darrell W. Clark 2017 Washington University in St. Louis

Lessons Learned While Clerking, Darrell W. Clark

Washington University Journal of Law & Policy

This Article explores some of the important lessons learned by a former law clerk of Judge Barry Schermer. Clark attributes many of the “soft skills” he learned in his legal career to Judge Schermer, and shares those with younger colleagues. The Author concludes Schermer’s advice on being practical, including delegating tasks and preparing for court, also taught him the professionalism he learned in his early days after law school.


A Tribute To Judge Barry S. Schermer: Judge, Teacher, Friend & The Lessons Learned, Sandra F. Louis 2017 Washington University in St. Louis

A Tribute To Judge Barry S. Schermer: Judge, Teacher, Friend & The Lessons Learned, Sandra F. Louis

Washington University Journal of Law & Policy

This Article recounts the many lessons shared by those who have studied and worked under Judge Barry Schermer. Louis revisits her time as a former clerk and the recent anecdotes shared at a symposium in honor of Judge Schermer’s thirty years of services as a bankruptcy judge, summarizing the professional skills they all learned. The author also includes the practical lessons she learned under Judge Schermer, with subjects including travel, food, and enjoying the process.


Mortgages & Mentoring: My Career With Judge Barry S. Schermer, Cynthia Kern Woolverton 2017 Washington University in St. Louis

Mortgages & Mentoring: My Career With Judge Barry S. Schermer, Cynthia Kern Woolverton

Washington University Journal of Law & Policy

This Article reflects on the lessons learned and taught by one of Judge Barry Schermer’s co-teachers. Woolverton focuses on teaching the fundamentals of Chapter 13 bankruptcy, including confirming a plan, secured claims, and interest charged, and, along with Judge Schermer, has students apply these complicated concepts to hypothetical situations. The Author recognizes Judge Schermer’s ability to break down these topics in a way that makes them more understandable to a new generation of students and practitioners.


The Examiner – Back To The Future, Lloyd A. Palans 2017 Washington University in St. Louis

The Examiner – Back To The Future, Lloyd A. Palans

Washington University Journal of Law & Policy

This Article examines the role Judge Barry Schermer played in crafting the role of an examiner under the then-new Bankruptcy Code section 1104(c). Palans revisits Jude Schermer’s appointment of an examiner and the parameters given to that role in In re Apex Oil. The Author concludes Judge Schermer’s authorization to give an examiner a flexible role, empowered in the interest of assisting the parties involved, was a forward-thinking way of setting up an investigator and mediator for the efficient administration of justice.


Predictors Of Municipal Bankruptcies And State Intervention Programs: An Exploratory Study, Laura N. Coordes, Thom Reilly 2017 Arizona State University Sandra Day O'Connor College of Law

Predictors Of Municipal Bankruptcies And State Intervention Programs: An Exploratory Study, Laura N. Coordes, Thom Reilly

Kentucky Law Journal

Why do some struggling cities file for bankruptcy while others, facing simiar circumstances, do not? This Article builds on the literature examining the causes and consequences ofmunicipal fiscal distress by exploring specific factors that lead municipalities to seek help from the state and federal government. Viewing municipal opportunities and constraints through political, economic, and legal lenses, this Article helps to explain the nuances ofmunicival decision making.

After identifiing eight factors that may serve as predctors of municipal insolvency, the authors studied cities in Fiscal distress with an eye toward uncovering the circumstances that led each of these cities into and ...


Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen 2017 Duke Law School

Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen

Faculty Scholarship

Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring ...


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 ...


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