Law Commons^™

Bankruptcy, Taxes, And The Primacy Of Irs Refund Offsets: Copley V. United States, Michelle Lyon Drumbl

South Carolina Law Review

No abstract provided.

The Settlement Trap, Lindsey Simon

Indiana Law Journal

Mass tort victims often wait years for resolution of their personal injury claims, but many who successfully navigate this arduous process will not receive a single dollar of their settlement award. According to applicable bankruptcy and state law, settlement payments may be an asset of the estate that the trustee, exercising its significant authority, administers and distributes to creditors instead of a claimant who had filed for bankruptcy. This distribution power maximizes repayment, a critical counterbalance to the robust protections and benefits that debtors receive in bankruptcy.

Setting aside the perceived unfairness of taking desperately needed money from tort victims, …

Bankruptcy And The Deceased Debtor: Rule 1016 In Practice, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Tax Foreclosures As Fraudulent Transfers - Are Auctions Really Necessary, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Section 707(B) Standing For Parties In Interest - Who Cares, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Stern Claims And Article Iii Adjudication - The Bankruptcy Judge Knows Best, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

The Challenges And Implications Of Fiscal Health, Bruce D. Mcdonald Iii

South Carolina Journal of International Law and Business

No abstract provided.

Asset Partitioning And Financial Innovation, Christopher Bruner

Scholarly Works

Review of the article by Ofer Eldar and Andrew Verstein titled “The Enduring Distinction between Business Entities and Security Interests”, 92 Southern California Law Review, no. 2 (2019).

Section 704(B)(2) - The Back Door Into Chapter 7 For The Above-Median Debtor, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

Reforming The True-Sale Doctrine, Heather Hughes

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Justice Scalia’S Bankruptcy Jurisprudence: The Right Judicial Philosophy For The Modern Bankruptcy Code?, Megan Mcdermott

Utah Law Review

This Article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era and this Article argues that his brand of rulebased textualism is a particularly good fit for bankruptcy law.

Specifically, four …

Rethinking Preemption And Constitutional Parameters In Bankruptcy, Michelle M. Harner

William & Mary Law Review

Chapter 11 of the U.S. Bankruptcy Code allows financially distressed businesses to reorganize and emerge from bankruptcy free of their pre-bankruptcy debts and obligations. In general, a business can achieve this kind of “fresh start” by confirming a plan of reorganization or pursuing a going-concern sale that typically facilitates a change in ownership, a reduction in leverage, and the elimination of most claims against the company’s assets. Through these kinds of transactions, a business can emerge from bankruptcy with a stronger balance sheet and often a new ownership structure. It also can streamline operations by, for example, assuming valuable contracts …

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 …

Restructuring Municipal Bankruptcy, Laura Napoli Coordes

Utah Law Review

What sorts of legal relief should be available to a municipality in financial distress? Chapter 9 of the Bankruptcy Code has served as an option of last resort for many municipalities over the years. But as this Article illustrates, Chapter 9 arguably falls short of an effective solution and at times seems to contravene the foundational principles underlying bankruptcy law. By examining recent Chapter 9 filings, this Article presents a comprehensive analysis of how and why Chapter 9 has failed to address the problems that characterize municipal insolvencies. It argues that Chapter 9, in both practice and principle, has proved …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Divorcing Into Debt: How Bankruptcy Abuse Prevention And Consumer Protection Act Created A New Class Member In America's Debtors' Prisons, Bobby A. Lean Jr.

Bobby A Lean Jr.

This paper takes a look into BAPCPA and how 11 U.S.C. § 523(a)(15) of the bankruptcy code creates a debtors' prison. It then compares the Florida courts and the Ohio courts and how creditors can use this section to potentially jail their debtors. Using policy analysis the paper turns to possible solutions and the cost there of.

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

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

Andrew Emerson

No abstract provided.

Remembrance Of Claims Past: The Due Process Owed To Unknown And Unknowable Future Claimants In Light Of Williams V. Placid Oil Co. (In Re Placid Oil Co.), Amir Shachmurove

Amir Shachmurove

For more than two decades, whenever a debtor potentially subject to “mass tort” suits predicated on such latent injuries has filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code, courts have struggled with how to classify such causes of action as Code “claims” under § 101 and how to ensure the notice guaranteed by the Due Process Clause of the Constitution’s Fifth Amendment is effectively afforded to these actions’ holders. In an area of bankruptcy law still influenced by its two earliest cases — In re Johns-Manville Corp. (“Manville”) and In re A. H. Robins Co. (“A.H. Robins”) …

Purchasing Claims And Changing Votes: Establishing "Cause" Under Rule 3018(A), Amir Shachmurove

Amir Shachmurove

Chapter 11 of the Bankruptcy Code gives creditors whose rights will be impaired the right to vote to accept or reject a proposed plan of reorganization. Bankruptcy law subjects this right of franchise to two limitations. Section 1126(e) provides that a vote cast “not in good faith” or “not solicited or procured in good faith” may be “designated” or nullified. The second restriction on voting, the subject of this article, is set forth in the penultimate sentence of Federal Rule of Bankruptcy Procedure 3018(a), which requires “a creditor or equity security holder” seeking “to change or withdraw an acceptance or …

Disciplining The Financial Failure: An Exploration Of Bankruptcy Law As An Active Discourse In Market Capitalism, Linda E. Coco

Faculty Scholarship

No abstract provided.

What Are The Article Iii Limits To Bankruptcy Court Jurisdiction, And Can Parties Consent To Expanded Jurisdiction: Wellness International Network V. Sharif (13-935), Marshall E. Tracht

Articles & Chapters

No abstract provided.

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal

Riz Mokal

Guaranteed To Work Or It's Free!: The Evolution Of Student Loan Discharge In Bankruptcy And The Ninth Circuit's Ruling In Hedlund V. Educational Resources Institute, Inc., Richard B. Keeton

Richard B. Keeton, Esq.

This article explores the topic of student loan discharge in bankruptcy and also discusses what precedent the Ninth Circuit's holding in Hedlund v. Educational Resources Institute Inc. sets for the future. In order to rationally analyze the effect of Hedlund, this article sets forth the basic foundation of knowledge necessary to understand student loans in general along with the bankruptcy process when educational loans are in question. Additionally, it gives a brief, easy to understand history of federal student loans, which sets the context for analyzing today’s student loan options. Further, this article discusses the evolution of tests for …

A Racionalidade Econômica Do Direito Falimentar: Reflexões Sobre O Caso Brasileiro, Bruno Meyerhof Salama, Fabio Crocco

Bruno Meyerhof Salama

Veiled Egos: Alter Ego, Veil-Piercing, And Sections 362(A) And 727(A), Amir Shachmurove

Amir Shachmurove

No abstract provided.

The Orderly Liquidation Authority: Fanatical Or Familiar? Idealistic Or Unrealistic?, Stephanie P. Massman

Stephanie P Massman

The systemic financial crisis of 2008 spurred the failure of numerous financial and non-financial entities. Regulators addressed each of these failures on an ad hoc ex-post basis, granting multiple bailouts in various forms. The refusal to extend these bailouts to one firm, Lehman Brothers, however, caused further panic and contagion throughout the already unstable market as one of the largest financial institutions of the U.S. underwent an extremely lengthy and value-destructive Chapter 11 bankruptcy. Criticism surrounding not only the bailouts, but also the decision to allow Lehman to fail under the Bankruptcy Code, led to the inclusion of the Orderly …

Litigating For The Future Of Public Pensions, Paul Secunda

Paul M. Secunda

Public pensions are horribly unfunded, millions of public employees are being forced to make greater contributions to their pensions, retirees are being forced to take benefit cuts, retirement ages and service requirements are being increased, and the list goes on and on. These alarming developments involve all level of American government, from the recent move to require new federal employees to contribute more to their pensions, to the significant underfunding of state and local public pension funds across the country, to the sad spectacle of the Detroit municipal bankruptcy where the plight of public pensions plays a leading role in …

Unquantifiable Wrongs, Incomparable Remedies: Post-Petition Enforcement Of Noncompetition Agreements, Amir Shachmurove

Amir Shachmurove

No abstract provided.