Law Commons^™

Extinguishing Security Interests: Secured Claims In Japanese Reorganization Law And Some Policy Implications To The U.S. Law, Wataru Tanaka

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This Article examines how secured claims are treated in Japanese business reorganization law, especially in the Civil Rehabilitation Act (Minji saisei ho), which was enacted in 1999 as the new general reorganization regime in Japan. Unlike the U.S. Bankruptcy Act, the Civil Rehabilitation Act does not have automatic stay on secured claims, nor does it allow any modification of secured claims by the rehabilitation plans. However, the Civil Rehabilitation Act has a unique procedure to restrict the rights of secured creditors, which is called “the procedure of extinguishing security interests (tanpo-ken shometsu seikyu tetsuzuki).” This procedure permits a debtor to …

Income Tax Claims In The Year Of Bankruptcy: A Congressionally Created Quagmire, Gregory L. Germain

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How is the government's claim for income taxes incurred by a debtor in the year of bankruptcy treated? Is the government's tax claim entitled to priority as a first priority expense of administration, even though part of the year's taxes was incurred prepetition? If not, is the claim entitled to eighth priority under its special rule for tax claims? The courts did not reach consistent results on these questions prior to the 2005 Act. The courts agreed that the government's claim for pre-petition taxes should not be entitled to administrative expense priority, but differed on whether the claim was entitled …

The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: The Solution To Inherent Inequalities Exists Outside The Box Of Congress' "Sense" Of Personal Finance Education, Lisa M. Wiltshire

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This Note analzyes the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 in relation to discrepancies between minority and white bankruptcy petition filers.

Bankruptcy Abuse: An Empirical Study Of Consumer Exemptions Cases, Bernard Trujillo

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On April 20, 2005, the President of the United States signed a sweeping legislative overhaul of the consumer bankruptcy system. The bankruptcy reform legislation is based on an empirical assertion: that sophisticated debtors with the means to re-pay their debts were instead filing for bankruptcy and acquiring a discharge, thereby abusing the bankruptcy system.

This Article presents the results of an empirical study of bankruptcy court doctrine in consumer exemptions proceedings over a twenty-year period. The findings suggest a serious empirical flaw in the premise of the bankruptcy reform legislation. The study shows that the bankruptcy system minimizes abuse by …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

General Intangible Or Commercial Tort: Moral Rights And State Based Intellectual Property As Collateral Under Ucc Revised Article 9, Lars Smith

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The article focuses on whether this change to Article 9 requires a reevaluation of whether certain intellectual property rights are better characterized as commercial torts rather than general intangibles. If so, this will place severe restrictions on the ability of debtors to use those forms of intellectual property as collateral. I propose a two part test to determine the proper characterization: First, is the intellectual property right one that exists primarily to vindicate interests of the owner? Second, is the intellectual property right alienable? Using this test, for example, it is my conclusion that moral rights can never be general …

What Makes Asset Securitization "Inefficient"?, Kenji Yamazaki

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Despite the damage caused by the recent Enron scandal , the asset securitization market has been vibrant and has become a popular financing alternative . A number of academics emphasize its merits and suggest that it is a more favorable way of financing, and Congress’s proposal to make sales of asset in securitization immune from characterization as secured transactions under the Bankruptcy Reform Act of 2001 (the “Reform Act”) almost materialized when the Enron scandal hit the scene. Conversely, there have been accusations that securitization is not a legitimate way of financing because, for example, it fosters fraudulent transactions.

Why …

A Technological Theory Of The Arms Race, Lee B. Kovarsky

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No abstract provided.

When Bankruptcy Meets Antitrust: The Case For Non-Cash Auctions In Concentrated Banking Markets, David Hahn

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One of the most heated debates in bankruptcy law scholarship has been the optimal design of corporate bankruptcy law. While traditionalist scholars defended the actual practice of Chapter 11 of the Bakruptcy Code, the law-and-economics movement has by and large heavily crticized Chapter 11 and called for its replacement. Several models of corporate bankruptcy have been offered in the literature as imporved alternatives thereto. In this article, I examine the various models offered in the literature, as well as the basic model of Chapter 11, against a certain realistic background: that of an economy characterized by the concentrated dominance of …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

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This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Patterns In A Complex System: An Empirical Study Of Valuation In Business Bankruptcy Cases, Bernard Trujillo

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This Article applies complex systems research methods to explore the characteristics of the bankruptcy legal system, presenting the results of an empirical study of twenty years of bankruptcy court valuation doctrine in business cramdown cases. These data provide solid descriptions of how courts exercise their discretion in valuing firms and assets.

This Article accomplishes two objectives: First, using scientific methodology, this Article explains the content of bankruptcy valuation doctrine. Second, this Article uses doctrine as a variable to explore system dynamics that govern the processes of change over time.

Significant findings include (i) courts tend to “split the difference” in …

Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann

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The rise of card-based payments has transformed the landscape of payments in the last half century, from one dominated by government-supported paper-based payments to one dominated by wholly private systems. The rise of those payments presents a number of policy problems, the most serious of which is the empirically demonstrable likelihood that use of the cards contributes to an undue level of consumer credit and that borrowing on the cards contributes to a rise in the level of consumer bankruptcy. Although the existing pattern shows great variation from country to country, regulators should take no solace in those variations. Building …