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Articles 1 - 30 of 33
Full-Text Articles in Law
Revisiting The Scrap Heap: The Decline And Fall Of Smith V. F.W. Morse & Co., Parker B. Potter Jr.
Revisiting The Scrap Heap: The Decline And Fall Of Smith V. F.W. Morse & Co., Parker B. Potter Jr.
The University of New Hampshire Law Review
[Excerpt] "One of the more difficult tasks facing a federal court is trying to predict how a state’s highest court would rule on a question of law it has not yet addressed. That difficulty is well illustrated by the history of Wenners v. Great State Beverages, Inc., and in particular, the interpretation of that opinion contained in Smith v. F.W. Morse & Co. [ . . . ]
This article begins with a close examination of Wenners and the two opinions on which Wenners relied for its now-canonical statement of the relationship between statutory and common law remedies. I continue …
A Failure Of Expression: How The Provisions Of The U.S. Bankruptcy Code Fail To Abrogate Tribal Sovereign Immunity, Greggory W. Dalton
A Failure Of Expression: How The Provisions Of The U.S. Bankruptcy Code Fail To Abrogate Tribal Sovereign Immunity, Greggory W. Dalton
Washington Law Review
Sections 106(a) and 101(27) of the U.S. Bankruptcy Code use the general phrase "other foreign or domestic government" to abrogate sovereign immunity without specifically referencing Indian tribes. The U.S. Supreme Court has not yet decided whether these sections of the Code abrogate tribal sovereign immunity, and lower court decisions have come to varying conclusions. As a general rule, Indian tribes are immune from suit due to their inherent sovereignty. Congress, however, may abrogate the sovereign immunity of tribes by unequivocally stating its intent to do so in a statute. When interpreting abrogation provisions in a statute, courts have only found …
Words That Wound: Defining Discussing, And Defeating Bankruptcy "Corruption", A. Mechele Dickerson
Words That Wound: Defining Discussing, And Defeating Bankruptcy "Corruption", A. Mechele Dickerson
Buffalo Law Review
No abstract provided.
Where Do You Get Off - A Reply To Courting Failure'S Critics, Lynn M. Lopucki
Where Do You Get Off - A Reply To Courting Failure'S Critics, Lynn M. Lopucki
Buffalo Law Review
No abstract provided.
European Implications Of Bankruptcy Venue Shopping In The U.S., David A. Skeel Jr.
European Implications Of Bankruptcy Venue Shopping In The U.S., David A. Skeel Jr.
Buffalo Law Review
No abstract provided.
Comments, Brady C. Williamson
Venue Choice: Where The Action Is, William C. Whitford
Venue Choice: Where The Action Is, William C. Whitford
Buffalo Law Review
No abstract provided.
Courting Failure, Lynn M. Lopucki
Beyond Recidivism, Douglas G. Baird, Douglas G. Baird
Beyond Recidivism, Douglas G. Baird, Douglas G. Baird
Buffalo Law Review
No abstract provided.
Fast, Cheap, And Creditor-Controlled: Is Corporate Reorganization Failing?, Melissa B. Jacoby
Fast, Cheap, And Creditor-Controlled: Is Corporate Reorganization Failing?, Melissa B. Jacoby
Buffalo Law Review
No abstract provided.
Courting Controversy, Charles J. Tabb
Comments, Robert D. Martin
Bankruptcy, James D. Walker Jr., Amber Nickell
Bankruptcy, James D. Walker Jr., Amber Nickell
Mercer Law Review
Never underestimate the persistence of the credit lobby. In the most significant development in bankruptcy law since last year's Article, Congress finally, after eight years of trying, enacted bankruptcy reform legislation in the form of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA" or the "Act"). At least one judge has stated that "to call the Act a 'consumer protection' Act is the grossest of misnomers." Indeed, the Act creates new roadblocks for entrance into bankruptcy, such as the pre-petition credit counseling requirement and Chapter 7 means testing; limiting or eliminating the protection of the automatic stay for repeat …
The Bapcpa's Chilling Effect On Debtor's Councel, Alan Eisher
The Bapcpa's Chilling Effect On Debtor's Councel, Alan Eisher
American University Law Review
No abstract provided.
The Implications Of The Third Circuit's Armstrong Decision On Creative Corporate Restructuring: Will Strict Construction Of The Absolute Priority Rule Make Chapter 11 Consensus Less Likely?, Harvey R. Miller, Ronit J. Berkovich
The Implications Of The Third Circuit's Armstrong Decision On Creative Corporate Restructuring: Will Strict Construction Of The Absolute Priority Rule Make Chapter 11 Consensus Less Likely?, Harvey R. Miller, Ronit J. Berkovich
American University Law Review
No abstract provided.
A Few Lines, David G. Epstein
Testing The Limits Of Statutory Construction Doctrines: Deconstructing The 2005 Bankruptcy Act, John Rao
Testing The Limits Of Statutory Construction Doctrines: Deconstructing The 2005 Bankruptcy Act, John Rao
American University Law Review
No abstract provided.
Access To Justice: Consumer Bankruptcy, Richard I. Aaron
Access To Justice: Consumer Bankruptcy, Richard I. Aaron
Utah Law Review
Bankruptcy is a privilege for the honest but unfortunate debtor; not for the knave or churl. All agree that bankruptcy should be available for those who are unable to pay their debts, but not for those who are just unwilling. The homilies are simple to state but not easy to apply. Why do consumers file bankruptcy? There are many explanations, all of them contentious and layered with disputed data. There simply is no definitive answer. Furthermore, as the following possible explanations demonstrate, Congress's choice to limit access to bankruptcy ignores the complexity of the question.
Contract As Statute, Stephen J. Choi, G. Mitu Gulati
Contract As Statute, Stephen J. Choi, G. Mitu Gulati
Michigan Law Review
The traditional model of contract interpretation focuses on the "meeting of the minds." Parties agree on how to structure their respective obligations and rights and then specify their agreement in a written document. Gaps and ambiguities are inevitable. But where contract language exists for the point in contention and a dispute arises as to the meaning of this language, courts attempt to divine what the parties intended. Among the justifications for deferring to the intent of the parties is the assumption that parties know what is best for themselves. Deference also arguably furthers autonomy values. Not all contracts and contract …
Australian Insolvency Law And The 1992 Isda Master Agreement—Catalyst, Reaction, And Solution, Christopher J. Mertens
Australian Insolvency Law And The 1992 Isda Master Agreement—Catalyst, Reaction, And Solution, Christopher J. Mertens
Washington International Law Journal
The reverberations of Enron’s financial collapse were heard on an international scale. Indeed, Enron Australia’s liquidation set off a flood of concern and speculation about the International Swaps and Derivatives Association’s (“ISDA”) model documentation for derivative transactions. A December 2003 opinion of the Supreme Court of New South Wales exposed a flaw in the ISDA 1992 Master Agreement. Two provisions of the agreement operate in tandem, creating a result which operates contrary to the clear meaning of the terms. This volatile interaction of the provisions effectively shifts the risk from the parties to the swap contract to the creditors of …
The Hidden Life Of Consumer Bankruptcy Reform, Jason J. Kilborn
The Hidden Life Of Consumer Bankruptcy Reform, Jason J. Kilborn
Vanderbilt Journal of Transnational Law
This Article offers a unique perspective on the heavily revised U.S. consumer bankruptcy law, which went effect on October 17, 2005, in light of a surprising discovery: It turns out that the U.S. consumer bankruptcy system as "reformed" resembles in many critical respects the consumer bankruptcy system in place for the past six years in the Netherlands. As a result of this serendipitous U.S.-Dutch convergence, years of experience under the Dutch consumer debt relief system can provide a rare glimpse into the future of the new U.S. system. The Dutch law in practice has diverged in significant ways from legislative …
Subprime Lending, Suboptimal Bankruptcy: A Proposal To Amend §§ 522(F)(1)(B) And 548(A)(1)(B) Of The Bankruptcy Code To Protect Subprime Mortgage Borrowers And Their Unsecured Creditors, R. Stephen Painter Jr.
Subprime Lending, Suboptimal Bankruptcy: A Proposal To Amend §§ 522(F)(1)(B) And 548(A)(1)(B) Of The Bankruptcy Code To Protect Subprime Mortgage Borrowers And Their Unsecured Creditors, R. Stephen Painter Jr.
Loyola University Chicago Law Journal
No abstract provided.
Chapter 15 And The Advancement Of International Cooperation In Cross-Border Bankruptcy Proceedings, Bryan Stark
Chapter 15 And The Advancement Of International Cooperation In Cross-Border Bankruptcy Proceedings, Bryan Stark
Richmond Journal of Global Law & Business
No abstract provided.
Honing A Blunt Instrument: Refining The Use Of Judicial Estoppel In Bankruptcy Nondisclosure Cases, Robert F. Dugas
Honing A Blunt Instrument: Refining The Use Of Judicial Estoppel In Bankruptcy Nondisclosure Cases, Robert F. Dugas
Vanderbilt Law Review
For individuals and organizations facing financial distress, modern bankruptcy law provides a statutory respite from creditors and mounting debt. When a debtor's liabilities irretrievably exceed its available assets, the law provides a forum for interested parties to efficiently assess and equitably divide or restructure a maximized pie of debtor value. What happens, however, when an individual or corporate debtor, either through fraud or mistake, "hides" a piece of the pie?
The New Chapter 15 Of The Bankruptcy Code: A Step Toward Erosion Of National Sovereignty, John J. Chung
The New Chapter 15 Of The Bankruptcy Code: A Step Toward Erosion Of National Sovereignty, John J. Chung
Northwestern Journal of International Law & Business
If Chapter 15 and universalism offer uncertain benefits but certain harms, why have their principles gained such a following? One explanation is that Chapter 15 is part of today's growing trend to internationalize American law. Much like the inclination of some Supreme Court Justices to look to foreign law for guidance, it appears many bankruptcy scholars, judges, and practitioners have developed a taste for international trendiness. This article contends that the debate surrounding Chapter 15 in bankruptcy circles is a variation of the ongoing national debate regarding the citation of foreign law in Supreme Court opinions. This internationalism is a …
The "Priority Statute" - The United States' "Ace-In-The-Hole", 39 J. Marshall L. Rev. 1205 (2006), Richard H.W. Maloy
The "Priority Statute" - The United States' "Ace-In-The-Hole", 39 J. Marshall L. Rev. 1205 (2006), Richard H.W. Maloy
UIC Law Review
No abstract provided.
Tilling The Cram Down Landscape: Using Securitization Data To Expose The Fundamental Fallacies Of "Till", Matthew H. O'Brien
Tilling The Cram Down Landscape: Using Securitization Data To Expose The Fundamental Fallacies Of "Till", Matthew H. O'Brien
Vanderbilt Law Review
It is almost universally recognized that the Bankruptcy Code's protection for consumers is justifiable under the theory that an ''entrepreneurial economy prospers when honest but unfortunate debtors are given a fresh opportunity to swim back into the productive mainstream rather than being forced down to drown." The amount of protection the Bankruptcy Code (hereinafter, the "Code") should afford consumers, on the other hand, is a source of much disagreement. Long-standing debate over this issue was, in fact, the basis for the controversy surrounding the Bankruptcy Abuse Prevention and Consumer Protection Act ("the Act") that the President signed into law in …
Uniform Laws Or State Immunity? The Constitutionality Of Section 106(A) After Seminole, 39 J. Marshall L. Rev. 969 (2006), John F. Hiltz
Uniform Laws Or State Immunity? The Constitutionality Of Section 106(A) After Seminole, 39 J. Marshall L. Rev. 969 (2006), John F. Hiltz
UIC Law Review
No abstract provided.
Special Topic Bankruptcy, Robert K. Rassmusen
Special Topic Bankruptcy, Robert K. Rassmusen
Vanderbilt Law Review
This issue of the VANDERBILT LAW REVIEW contains two outstanding student pieces on bankruptcy law. Few would be surprised by this observation. As to the quality of the works, they fall in with a long tradition of outstanding student scholarship published by the REVIEW. The choice of topic-bankruptcy law-also does not raise eyebrows. After all, Congress has recently enacted the most sweeping changes to the Bankruptcy Code since its original enactment in 1978. This legislation was the culmination of a more than decade long effort to revise our nation's bankruptcy law. Any major reform effort of this scope surely generates …
Chip Away At The Stone: The Validity Of Pre-Bankruptcy Clauses Contracting Around Section 363 Of The Bankruptcy Code, Matthew P. Goren
Chip Away At The Stone: The Validity Of Pre-Bankruptcy Clauses Contracting Around Section 363 Of The Bankruptcy Code, Matthew P. Goren
NYLS Law Review
No abstract provided.