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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.


Randomly Distributed Trial Court Justice: A Case Study And Siren From The Consumer Bankruptcy World, Gary G. Neustadter 2016 Santa Clara Unviersity School of Law

Randomly Distributed Trial Court Justice: A Case Study And Siren From The Consumer Bankruptcy World, Gary G. Neustadter

Faculty Publications

Between February 24, 2010 and April 23, 2012, Heritage Pacific Financial, L.L.C. (“Heritage”), a debt buyer, mass produced and filed 218 essentially identical adversary proceedings in California bankruptcy courts against makers of promissory notes who had filed Chapter 7 or Chapter 13 bankruptcy petitions. Each complaint alleged Heritage's acquisition of the notes in the secondary market and alleged the outstanding obligations on the notes to be nondischargeable under the Bankruptcy Code’s fraud exception to the bankruptcy discharge. The notes evidenced loans to California residents, made in 2005 and 2006, which helped finance the purchase, refinancing, or ...


Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn 2016 Selected Works

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn

Jason Kilborn

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation ...


Clarifying The Business Trust In Bankruptcy: A Proposed Restatement Test, Jared W. Speier 2016 Pepperdine University

Clarifying The Business Trust In Bankruptcy: A Proposed Restatement Test, Jared W. Speier

Pepperdine Law Review

When bankruptcy courts attempt to define the business trust, the “decisions are sharply, and perhaps hopelessly, divided.” The Bankruptcy Code, which guides the determinations of bankruptcy courts, specifically lists business trusts as eligible for protection. However, the Code does not define what a business trust is and does not list any criteria for determining when a trust is a business trust. The lack of a concrete definition has led many courts to formulate their own definitions of business trusts. While the courts hoped that they would eventually settle on a uniform test to tackle this issue, it has yet to ...


What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow 2016 University of Michigan Law School

What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow

Articles

This article is based on a February 2016 keynote address given at the University of Puerto Rico Law Review Symposium “Public Debt and the Future of Puerto Rico.” Thus, much of it remains written in the first person, and so the reader may imagine the joy of being in the audience. (Citations and footnotes have been inserted before publication ‒ sidebars that no reasonable person would ever have inflicted upon a live audience, even one interested in bankruptcy law. Rhetorical accuracy thus yields to scholarly pedantics.) The analysis explains how bankruptcy law not only can but will be required to remedy ...


Pari Passu As A Weapon And The Changes To Sovereign Debt Boilerplate After Argentina V. Nml, David Newfield 2016 University of Miami Law School

Pari Passu As A Weapon And The Changes To Sovereign Debt Boilerplate After Argentina V. Nml, David Newfield

University of Miami Business Law Review

The pari passu clause is found in nearly every sovereign debt contract issued throughout the globe. In the private context, this clause is well understood to ensure fair distributions to all creditors in the event of bankruptcy and liquidation. As insolvency distributions are not an option when dealing with distressed sovereign debt, the rights and duties associated with this clause have been subject to extensive litigation for over 20 years.

Starting from the case of Elliot v. Peru, in the early 1990s, and more recently in Argentina v. NML, courts have interpreting these bonds, governed subject to New York law ...


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