Law Commons^™

Premerger Review And Bankruptcy: The Meaning Of Section 363(B)(2), Robert B. Greenbaum, Alan J. Meese

Alan J. Meese

No abstract provided.

Unexpired Leases In Bankruptcy: Rights Of The Affected Mortgagee, Peter A. Alces

Peter A. Alces

No abstract provided.

If You Don't Have Anything Good To Say..., Peter A. Alces

Peter A. Alces

No abstract provided.

Clearer Conceptions Of Insider Preferences, Peter A. Alces

Peter A. Alces

No abstract provided.

Delaware Is Not A State: Are We Witnessing Jurisdictional Competition In Bankruptcy, G. Marcus Cole

G. Marcus Cole

Over the last twelve years, the United States District Court for the District of Delaware has experienced exponential growth in the number of bankruptcy filings for large corporate debtors. This relatively recent rise in Delaware bankruptcy venue cannot, on its face, be explained by Delaware's eighty-five-year preeminence in the race for corporate charters, since the advantages most often postulated for Delaware's dominance in corporate law do not carry over to corporate bankruptcy. The state has limited influence over federal bankruptcy law and virtually no control over the selection of federal bankruptcy judges.

This rise of Delaware bankruptcy venue, or Delawarization …

Limiting Liability Through Bankruptcy, G. Marcus Cole

G. Marcus Cole

The purpose of this Article is to expose that function of bankruptcy law that distinguished it from English and Colonial insolvency law, and to determine the scope of and need for bankruptcy law to perform that function in contemporary society. I posit that the distinguishing character of bankruptcy law was, and continues to be, its ability to serve as a temporal asset partitioning device. By asset partition, I mean the ability of a structure to sequester the assets of an owner of an enterprise from the reach of the creditors of that enterprise, or the assets of the enterprise from …

Anna Nicole Smith Goes Shopping: The New Forum-Shopping Problem In Bankruptcy, G. Marcus Cole, Todd J. Zywicki

G. Marcus Cole

In the United States, relations between debtors and their creditors are governed by two distinct legal regimes. For the overwhelming majority of credit relationships, state law of contract, property, tort, and consumer protection set up the framework within which the debtor-creditor relationship is established, functions, and in the end, is dissolved. In a smaller but significant number of these relationships, a different forum orchestrates the end of these relationships, namely, federal bankruptcy court. These two distinct forums for debtor-creditor relations coexist side by side, with some disputes moving over time from one forum to the other. As with any system …

Consumer Bankruptcy, Nondischargeability, And Penal Debt, Abbye Atkinson

Abbye Atkinson

This Article examines the issue of categorically nondischargeable debts in the Bankruptcy Code. These debts are excepted from discharge ostensibly because they indicate that the debtor incurred the debt through some misconduct, there is an important public policy at play that requires the debt to be excepted from discharge, or a discharge of certain state-imposed debts raises federalism concerns. Using penal debt as its lens, this Article critiques these analytical frames, arguing that they do not do much work to help explain why some debts are treated as categorically nondischargeable while others that seem to implicate the same concerns are …

The Looming Chapter 9 Battle Over State Protection Of Vested Public Employee Pension Benefits, Mark S, Kaufman, Summer B. Chandler

Summer Chandler

"For years, observers have warned of the looming threat of unfunded pension liabilities. Some dubbed the danger the “pension tsunami,” and it has hit an increasing number of U.S. cities, including Vallejo, Stockton and San Bernardino in California and the city of Detroit, which have sought chapter 9 relief in bankruptcy court.¹ Despite the attention given to these cases, chapter 9 filings are relatively scarce, and many significant issues remain to be resolved by the courts. One unanswered question is whether a municipal debtor in bankruptcy can propose to pay its pension debt² less than in full, even …

Is It Fair To Discriminate In Favor Of Pensioners In A Chapter 11 Plan?, Summer B. Chandler

Summer Chandler

“A number of U.S. cities are plagued with debt obligations that cannot be met. As municipalities¹ have turned to chapter 9 protection to ease their financial burdens, various creditor constituencies have found themselves pitted against each other as they realize that they might be forced to share a finite amount of assets and funds that are insufficient to cover all of the a municipality’s debts. The ultimate goal of a chapter 9 filing is the confirmation of an adjustment plan that implements a feasible and comprehensive restructuring of a municipality’s obligations. A municipality’s proposed plan must be approved by …

Maybe Taxes Aren't So Certain: What Is "Fair And Equitable" In A Chapter 9 Plan?, B. Summer Chandler, Mark S. Kaufman

Summer Chandler

"Many U.S. cities and other municipalities are struggling under crippling financial demands. Buckling under the financial strain, a number of municipalities are considering an option that, just a few short years ago, was almost unheard of—filing for bankruptcy protection. Assuming that eligibility requirements are met, a municipality¹ may seek bankruptcy protection under chapter 9 of title 11 of the Bankruptcy Code. Historically, chapter 9 filings have been rare, with typically less than 10 such filings annually.² In recent months, however, a number of chapter 9 cases have been filed.³ In addition to the rise in the number …

It’S All Going To Pot Is Relief Available For Debtors In The Marijuana Business?, Summer B. Chandler

Summer Chandler

"Twenty-three states and the District of Columbia authorize the use of marijuana in some form for medical purposes.¹ The fact that almost half of all U.S. states now permit medical marijuana use is significant, particularly in light of the fact that close to half of these jurisdictions have legalized the use of marijuana in the last five years.² In addition, in the past three years, four states and the District of Columbia have legalized marijuana for recreational use.³ Despite the fact that many states have legalized the cultivation, sale and use of marijuana, these actions remain illegal …

Exploring The Boundaries Of Municipal Bankruptcy, Christopher J. Tyson

Christopher J. Tyson

Municipal fiscal insolvency has become the central challenge facing American cities. Municipal fiscal insolvency is the result of many factors, including risk taking, fiscal mismanagement, corruption, and the absence of political will to make hard choices. There are also structural factors at play-specifically, local government organization and the fiscal constraints states place on their subdivisions play a significant role in the ability of municipalities to achieve sustainability and growth. These factors are rarely included in the discussion on municipal fiscal insolvency, and understandably so. It is hard to determine the role that local government organization plays in undermining the fiscal …

Contract Claims And The Willful And Malicious Injury Exception To The Discharge In Bankruptcy, Scott F. Norberg

Scott Norberg

No abstract provided.

You've Got Your Mother's Laugh: What Bankruptcy Mediation Can Learn From The Her/History Of Divorce And Child Custody Mediation, Nancy A. Welsh

Nancy Welsh

Due to our current deep economic woes, growing bankruptcy filings, and apparent legislative unwillingness to expand the number of judges, bankruptcy courts are exploring the use of mediation to help resolve adversary proceedings, negotiate elements of reorganizations, and deal with claims that cannot be heard directly in bankruptcy proceedings. In addition, mediation advocates have been consistent in urging greater use of the process to reduce debtors’ and claimants’ costs, bridge the jurisdictional and standing challenges that bankruptcies can pose, and offer claimants the opportunity to be heard and determine their own resolution of claims. At this point, the relatively few …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Nancy Welsh

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

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Consent, Coercion, And Bankruptcy Administration, S. Todd Brown

S. Todd Brown

No abstract provided.

La Responsabilisation De L'Economie: What The United States Can Learn From The New French Law On Consumer Overindebtedness, Jason J. Kilborn

Jason Kilborn

This Article on the French law continues a study of European consumer debt-relief systems, which the author began previously in an article on the German system. With rapid legal and practical developments in consumer debt-relief law, Europe provides an excellent comparative legal laboratory for observing the potential benefits and pitfalls of consumer bankruptcy reforms. In particular, French and German experiences with long-term payment plans shed useful light on the great debate raging in the United States over similar plans.

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 …

The Personal Side Of Harmonizing European Insolvency Law

Jason Kilborn

Business Insolvency And The Irish Debt Crisis, Paul B. Lewis

Paul Lewis

No abstract provided.

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 nuanced …

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.

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 of …

"Deemed" Security Interests In Ucc Article 9: Avoiding Traps For The Unwary, 14 Depaul Bus. & Com. L.J. 79 (2015), Paul T. Wangerin

Paul Wangerin

Uniform Commercial Code (“UCC”) Section 1-201(35) provides in its detailed definition of security interests that “security interest” means “an interest in personal property or fixtures which secures payment or performance of an obligation.” Other parts of the UCC demonstrate that two relatively distinct kinds of security interests exist. First, the UCC notes that parties to transactions can create security interests by executing “security agreements.” For convenience sake, the security interests created by security agreements can be called “conventional” or “agreed upon” security interests. Second, various sections of the UCC describe security interests that come into existence by operation of law …

Pensions Or Paintings?: The Detroit Institute Of Arts From Bankruptcy To Grand Bargain, 24 U. Miami Bus. L. Rev. 1 (2015), Maureen Collins

Maureen B. Collins

This article examines the issues faced by the City of Detroit and the Detroit Institute of Arts when Detroit filed for municipal bankruptcy. Creditors called for the sale of the highly esteemed DIA art collection to pay outstanding municipal pension obligations. The DIA and the Michigan Attorney General viewed the collection not as an asset, but as a charitable public trust. Simply put, the City faced the question of what mattered most – pensions or paintings? Along the way, the parties and courts struggled with valuation of the art collection, a history of judicial decisions and lawmaking regarding charitable trusts …

Pensions Or Paintings? The Detroit Institute Of Arts From Bankruptcy To Grand Bargain, Maureen B. Collins

Maureen B. Collins

This article examines the issues faced by the City of Detroit and the Detroit Institute of Arts when Detroit filed for municipal bankruptcy. Creditors called for the sale of the highly esteemed DIA art collection to pay outstanding municipal pension obligations. The DIA and the Michigan Attorney General viewed the collection not as an asset, but as a charitable public trust. Simply put, the City faced the question of what mattered most – pensions or paintings? Along the way, the parties and courts struggled with valuation of the art collection, a history of judicial decisions and lawmaking regarding charitable trusts …

Of Progressive Property And Public Debt, Christopher K. Odinet

Christopher K. Odinet

Reflections Of The World Bank’S Report On The Treatment Of The Insolvency Of Natural Persons In The Newest Consumer Bankruptcy Laws: Colombia, Italy, Ireland, 27 Pace Int'l L. Rev. 306 (2015), Jason J. Kilborn

Jason Kilborn

No abstract provided.