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Articles 1 - 17 of 17
Full-Text Articles in Law
Fiduciary Principles In Bankruptcy And Insolvency, John A. E. Pottow
Fiduciary Principles In Bankruptcy And Insolvency, John A. E. Pottow
Book Chapters
This chapter examines fiduciary duties in bankruptcy and insolvency, focusing on the bankruptcy trustee’s duties, which are triggered by virtue of appointment in a case. It first provides a background on bankruptcy law in order to elucidate the doctrines and rules affecting fiduciary responsibilities in bankruptcy, citing a number of relevant provisions in the Bankruptcy Code. It then considers the fiduciary, non-fiduciary, and anti-fiduciary obligations of the trustee under the Bankruptcy Code before discussing the fiduciary duties of care and loyalty. In particular, it highlights bankruptcy-related issues raised by the duty of loyalty with respect to secured creditors, priority unsecured …
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
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.
Third Time's The Charm: The Coming Impact Of The Restatement (Third) Restitution And Unjust Enrichment In Bankruptcy, C. Scott Pryor
Third Time's The Charm: The Coming Impact Of The Restatement (Third) Restitution And Unjust Enrichment In Bankruptcy, C. Scott Pryor
Pepperdine Law Review
Bankruptcy courts have frequently been characterized as courts of equity. Often this characterization has accompanied unusually relaxed interpretation or application of a provision of the Bankruptcy Code. However, this understanding does not exhaust the meaning of equity in bankruptcy. Historically, equity covered a large range of topics–trusts and estates, injunction, contracts, specific performance, unjust enrichment, restitution, and disgorgement. In addition, equity was not limited to particular remedies. Equity’s remedies certainly included money damages but recognized many more. The law of equity was substantive as well as remedial; it recognized primary rights as well as secondary rights of rectification. Among equity's …
Beyond Contempt: Obligors To Injunctions, Doug R. Rendleman
Beyond Contempt: Obligors To Injunctions, Doug R. Rendleman
Doug Rendleman
No abstract provided.
Keeping Score When Bankruptcy Principles And The Federal Anti-Assignment Act Collide: Government Contractors' Options Concerning Executory Contracts, Tanya M. Kiatkulpiboone
Keeping Score When Bankruptcy Principles And The Federal Anti-Assignment Act Collide: Government Contractors' Options Concerning Executory Contracts, Tanya M. Kiatkulpiboone
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Righting Others' Wrongs: A Critical Analysis Of Clawback Suits In The Wake Of Madoff-Type Ponzi Schemes And Other Financial Frauds, Amy Sepinwall
Righting Others' Wrongs: A Critical Analysis Of Clawback Suits In The Wake Of Madoff-Type Ponzi Schemes And Other Financial Frauds, Amy Sepinwall
Amy J. Sepinwall
In a typical Ponzi scheme, early investors earn “profits” not through any legitimate investment activity on the part of the Ponzi scheme operator; instead the operator simply transfers money that later investors deposit to the earlier investors who seek redemptions. As such, when the scheme goes bust, as it must, the Ponzi scheme operator will not have enough money to cover all of the investors’ deposits, let alone the earnings on those deposits that the investors thought they were owed. Should the scheme’s winners – i.e., those who withdrew more money than they deposited – be compelled to return their …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Finding Nemo: Rediscovering The Virtues Of Negotiability In The Wake Of Enron, Adam J. Levitin
Finding Nemo: Rediscovering The Virtues Of Negotiability In The Wake Of Enron, Adam J. Levitin
ExpressO
Creditors have long understood that any claims they submit for repayment in a bankruptcy might be valid, but subject to subordination in the order of payment of the bankruptcy estate’s limited funds if the creditor behaved inequitably as the debtor failed. A groundbreaking opinion in Enron’s on-going bankruptcy has expanded the practice of equitable subordination far beyond its traditional reach. According to the court, buyers of bankruptcy claims are now subject to subordination, not just for their own conduct, but also for conduct of previous owners of the claims, regardless of whether the conduct related to the claims.
In a …
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
ExpressO
No abstract provided.
Overoptimism And Overborrowing, Richard M. Hynes
Overoptimism And Overborrowing, Richard M. Hynes
Faculty Publications
No abstract provided.
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Rutgers Law School (Newark) Faculty Papers
In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …
Optimal Bankruptcy In A Non-Optimal World, Richard M. Hynes
Optimal Bankruptcy In A Non-Optimal World, Richard M. Hynes
Faculty Publications
Consumer bankruptcy insures individuals against misfortune. Like other forms of insurance, bankruptcy reduces an individual's incentive to guard against misfortune and provides her with an incentive to overstate her need for relief. The "first-best," or optimal, bankruptcy system, like the first-best tax or public assistance system, solves these moral hazards without any loss of efficiency. In bankruptcy, this first-best approach would deny relief to debtors responsible for their own distress and reduce the deserving debtors' obligations to an amount commensurate with their ability to pay. While the Bankruptcy Code tries (in part) to follow this first-best approach, such a utopian …
Will Big Tobacco Seek Bankruptcy Protection? A $145 Billion Verdict Poses The Question, Mark Gottlieb, Richard A. Daynard
Will Big Tobacco Seek Bankruptcy Protection? A $145 Billion Verdict Poses The Question, Mark Gottlieb, Richard A. Daynard
William & Mary Environmental Law and Policy Review
No abstract provided.
The Past And Future Of Kentucky's Fraudulent Transfer And Preference Laws, Douglas C. Michael
The Past And Future Of Kentucky's Fraudulent Transfer And Preference Laws, Douglas C. Michael
Law Faculty Scholarly Articles
An important part of the law of creditors' remedies is the ability of creditors to recover property formerly held by the debtor, but transferred to others under circumstances that are considered to be unfair or inequitable. There are two principal ways a creditor can seek to have a debtor's transfer characterized as unfair in order to recover it. First, a transfer to another creditor or a third party can be fraudulent as to one or all of the remaining creditors, or may be deemed to be fraudulent because of the circumstances surrounding the transfer, such as a transfer made by …
Debtor-Creditor Relations—Arkansas Fraudulent Transfer Act, Coleen Miller Barger
Debtor-Creditor Relations—Arkansas Fraudulent Transfer Act, Coleen Miller Barger
University of Arkansas at Little Rock Law Review
No abstract provided.
Contracts-Fraud-Rescission For Non-Disclosure Of Insolvency, Sheridan Morgan
Contracts-Fraud-Rescission For Non-Disclosure Of Insolvency, Sheridan Morgan
Michigan Law Review
Modern decisions have provided an important device for the protection of creditors through extension of the duty of disclosure by persons in extreme financial distress. The remedy chiefly used is rescission, which can be secured on the ground of "fraud," with restitution of property transferred in ignorance of the purchaser's distressed condition. The "fraud" need not consist of express misrepresentation of fact, though express misrepresentation often appears as an independent ground leading to the same result. The commercial importance of the remedies thus developed seems to justify consideration both of their practical consequences and of the theories on which relief …