Law Commons^™

Medical Debt As A Cause Of Consumer Bankruptcy, Daniel Austin

Daniel A. Austin

During his 2009 State of the Union Address, President Obama urged Americans to support healthcare reform, stating “[t]his is a cost that now causes a bankruptcy in America every thirty seconds.” That attention-grabbing statistic was based on a 2009 study, co-authored by now Sen. Elizabeth Warren, which concluded that 62.1% of consumer bankruptcies are medical bankruptcies. The figure has been widely cited by lawmakers, academics, and in the media. Other researchers dispute the study findings, and the issue of medical bankruptcies continues to be a focal point in debates over healthcare policy and bankruptcy law reform.

Several other studies have …

Not So Fast, Senator! How To Really Solve The Student-Loan Debt Crisis, Daniel Austin

Daniel A. Austin

No abstract provided.

The Indentured Generation: Bankruptcy And Student Loan Debt, Daniel Austin

Daniel A. Austin

A generation of Americans has borrowed heavily for their education, and hundreds of thousands of them are deeply in debt. Some 37 million Americans owe a total of approximately $1 trillion dollars in student loans. They constitute an Indentured Generation as many of them will be paying student loan debt for much of their lives. Some will eventually pay their loans, others will obtain full or partial loan forgiveness, and many will default or die before completing payments. Members of the Indentured Generation in particularly dire circumstances will look to consumer bankruptcy for relief. But with very few exceptions, student …

Bankruptcy And The Myth Of "Uniform Laws", Daniel Austin

Daniel A. Austin

The Bankruptcy Clause of the Constitution empowers Congress to enact “uniform Laws on the subject of bankruptcies.” Common definitions of the word uniform include “always the same” and “not variable.” Yet the rights and remedies of debtors and creditors in a bankruptcy case vary significantly depending upon the state and federal jurisdiction in which the case is filed. Rather than a single uniform law of bankruptcy, the U.S. has multiple bankruptcy laws and regimes based upon geography.

The cause of bankruptcy nonuniformity lies in the structure of our bankruptcy system. Many sections of the Bankruptcy Code incorporate state law, which …

State Laws, Court Splits, Local Practice Make Consumer Bankruptcy Anything But "Uniform", Daniel Austin

Daniel A. Austin

The Bankruptcy Clause allows Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” Pursuant to this authority, the Bankruptcy Code, 11 U.S.C. §101 et seq., governs consumer bankruptcy in the U.S. As a federal statute, it might be expected that the Code would be applied in a relatively uniform manner throughout the U.S. However, state laws, judicial interpretation, and local practice can vary so significantly, that the relief and procedures available to a debtor in one state can be entirely different from what is available in another state.

The Bankruptcy Clause And The Eleventh Amendment: An Uncertain Boundary Between Federalism And State Sovereignty, Daniel Austin

Daniel A. Austin

This Article will examine the conflict between the Bankruptcy Code and state sovereignty. The Article shows that while state substantive law is extensively incorporated into federal bankruptcy law, the Bankruptcy Code prevails over state sovereign immunity when applying bankruptcy law. In other words, under the present judicial regime, the Bankruptcy Code presents a glaring exception to the otherwise firm rule of state sovereignty.

Part I examines the Bankruptcy Clause and several national bankruptcy statutes, including the current Bankruptcy Code. This discussion includes an explanation of how the Bankruptcy Clause sits within the framework of the Supremacy Clause. Part II discusses …

Drop Down? Drop Dead! Excess Insurers Not Required To Provide Primary Coverage In Lieu Of An Insolvent Insurer, Daniel Austin

Daniel A. Austin

Courts have consistently ruled that excess insurers are not required to provide "drop-down" coverage to pay for losses sustained by policyholders in cases where (a) the primary underlying insurer is insolvent and unable to pay or (b) the policyholder itself is in bankruptcy and is unable or unwilling to pay the deductible or self-insured retention amount. Why do so many insured parties seem to have missed the message and still seek to have their excess carriers provide drop-down coverage? This article will examine the issue by looking at several cases.

For Debtor Or Worse: Discharge Of Marital Debt Obligations Under The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Daniel Austin

Daniel A. Austin

Part I examines the intersection between divorce and bankruptcy in contemporary American society, providing an overview of divorce demographics and an introduction to the bankruptcy process. Part II offers a pre- and post-Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) comparison of the Bankruptcy Code sections governing divorce obligations and discharge under the Bankruptcy Code. Part III reviews how courts in the future are likely to do so under the BAPCPA revisions. Part IV joins together existing rules and approaches to the new BAPCPA language to determine how courts will apply the BAPCPA marital discharge provisions to future cases. Part …

Eat My Dirt! Dirt-For-Debt Swaps Under 11 U.S.C. §1129(B)(2)(A)(Iii), Daniel Austin

Daniel A. Austin

No abstract provided.

Payment Of Pre-Petition And Post-Petition Employee Severance Benefits, Daniel Austin

Daniel A. Austin

This article examines whether severance benefits promised to employees pre-petition may be paid after the employer has filed a chapter 11 bankruptcy petition. The answer depends on whether the severance benefits were payable based on length of service or in a single lump-sum payment, and whether the debtor is in a majority-or-minority-rule jurisdiction. For most debtors, pre-petition lump-sum severance benefits are not payable as an administrative expense. Severance benefits based on length of service must be allocated between pre- and post-petition service. This article does not deal with benefits provided under a collective bargaining agreement, which are governed under Section …