Law Commons^™

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

Driven To Bankruptcy, Pamela Foohey, Robert M. Lawless, Deborah Thorne

Articles by Maurer Faculty

Over the last ten years, 15.1 million people owning 16.4 million cars filed for bankruptcy. These cars provided access to work, education, medical care, childcare, food, and other life necessities. They were also major household investments, the most expensive asset most bankruptcy filers owned other than a house. Using original data from the Consumer Bankruptcy Project, we document what happens to car owners and their car loans when they enter bankruptcy. In brief, we find that people who file bankruptcy own automobiles at the same rate as the general population and that they overwhelmingly indicate they want to use bankruptcy …

Fines, Fees, And Filing Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

When faced with mounting civil or criminal court fines, fees, and interest-"court debt," as broadly defined-people may consider turning to the bankruptcy system to deal with that debt. Every year, about a million people file bankruptcy, seeking to discharge most of their debts. Although most court debt is categorically nondischargeable, bankruptcy's discharge may provide people struggling with court debt a way to wipe the slate somewhat clean so they have a better chance of paying such debt. Also, people who file bankruptcy under chapter 13--one of the two most common chapters filed by consumers are entitled to a so-called "superdischarge" …

Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and …

"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer …

Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black …

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Articles by Maurer Faculty

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E’s Emirate of Dubai was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a coordinated fashion, …

When Faith Falls Short: Bankruptcy Decisions Of Churches, Pamela Foohey

Articles by Maurer Faculty

What does a church do when it is about to go bust? Religious organizations, like any business, can experience financial distress. Leaders could try to solve their churches’ financial problems on their own. Perhaps leaders do not view the problems as addressable with law. Or perhaps they do not think, as a moral or spiritual matter, that they should resort to the legal system, such as bankruptcy, to deal with their churches’ inability to pay its debts. Yet about ninety religious organizations seek to reorganize under the Bankruptcy Code every year. This Article relies on interviews with forty-five of these …

Secured Credit In Religious Institutions' Reorganizations, Pamela Foohey

Articles by Maurer Faculty

Scholars increasingly assume that most businesses enter Chapter 11 with a high percentage of secured debt, which leads to a high percentage of cases ending in the sale of the debtor’s assets under section 363 of the Bankruptcy Code rather than with confirmation of a reorganization plan. However, evidence and discussions about “the end of bankruptcy” center on secured creditors’ role in the reorganizations of very large corporations. The few analyses of cross-sections of Chapter 11 proceedings suggest that secured creditor control is not nearly as omnipresent as asserted and that 363 sales are not as dominant as assumed.

This …

When Churches Reorganize, Pamela Foohey

Articles by Maurer Faculty

The article complements and expands the author’s prior article, Bankrupting the Faith. This article primarily relies on interviews with attorneys who represented religious organizations in chapter 11 bankruptcy to assess whether reorganization has the potential to offer an effective solution to religious organizations’ financial problems. In doing so, it makes three contributions. First, it tracks the post-bankruptcy outcomes of a portion of the debtors to find that approximately 65% remained operating post-bankruptcy; these outcomes contradict previous studies of small business bankruptcy and are important to current debates about reforming small business bankruptcy. Given this—and in keeping with the ABLJ’s …

Bankrupting The Faith, Pamela Foohey

Articles by Maurer Faculty

This Article presents the results of a comprehensive empirical study of religious organizations that filed bankruptcy under Chapter 11 from the beginning of 2006 to the end of 2011. It examines the institutions’ characteristics, reasons for filing, and case outcomes to investigate whether Chapter 11 is an effective solution to their financial problems. In investigating the religious organizations’ cases, the Article also assesses the role of bankruptcy courts in adjudicating Chapter 11 cases and places the cases within theories about the larger purposes of Chapter 11.

The study finds that the vast majority of debtors are small organizations that operate …

The Case For A State-Level Debt-Financing Authority, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this essay, we argue for the adoption of state-level debt-financing authorities as part of a broader package for reforming local government borrowing.

Chapter 11 Reorganization And The Fair And Equitable Standard: How The Absolute Priority Rule Applies To All Nonprofit Entities, Pamela Foohey

Articles by Maurer Faculty

In recent years, nonprofit entities increasingly have sought bankruptcy protection. Though the Bankruptcy Code does not prevent nonprofits from reorganizing, Chapter 11 was designed for and applies best to for-profit businesses. This creates challenges for courts evaluating a nonprofit’s reorganization plan. This Article focuses on one crucial aspect of a court’s evaluation — the fair and equitable standard, a necessary, but not sufficient condition of which is satisfaction of the absolute priority rule.

The few courts addressing absolute priority claims in nonprofit reorganizations have held that the rule is categorically inapplicable to nonprofit entities except in limited circumstances. These courts …

Bankruptcy In The Seventh Circuit: 1996, Douglass G. Boshkoff

Articles by Maurer Faculty

No abstract provided.

Debtor Protection At The Close Of The Twentieth Century, Douglass Boshkoff

Articles by Maurer Faculty

No abstract provided.

The Attack On Chapter 11, Douglass G. Boshkoff

Articles by Maurer Faculty

No abstract provided.

Bankruptcy-Based Discrimination, Douglass G. Boshkoff

Articles by Maurer Faculty

No abstract provided.

Owners, Auctions, And Absolute Priority In Bankruptcy Reorganizations, Bruce A. Markell

Articles by Maurer Faculty

No abstract provided.

The Risks Of Insider Guaranties, Douglass G. Boshkoff

Articles by Maurer Faculty

Loan payments made within a year of a bankruptcy filing could be considered avoidable preferences if the loan were guaranteed by a corporate insider. In this article, Prof Boshkoff argues that bankers should value insider guaranties only as a second source of payment, not for any subtle pressure they may exert on the borrower.

United States Judicial Assistance In Cross-Border Insolvencies, Douglass G. Boshkoff

Articles by Maurer Faculty

No abstract provided.

Toward A Reform Of The Six-Year Bar To Discharge In Bankruptcy, David C. Williams

Articles by Maurer Faculty

Since early in this century, the six-year bar to discharge has been a familiar feature of bankruptcy law: a debtor who has once been adjudicated a bankrupt and granted a discharge has traditionally been unable to obtain another discharge for six years afterwards. The continued vitality of the measure, originally applicable to all forms of bankruptcy available, is now uncertain and controversial under the new chapter proceedings. The confusion surrounding the six-year bar suggests the need for a fresh consideration of the purposes of the rule. This Note examines the bar's animating rationale and the status of the bar under …

Book Review. Cases And Materials On Creditors' Rights, 2nd Ed. By John Hanna, James J. Robinson

Articles by Maurer Faculty

No abstract provided.

Recovery Of Property By Trustees In Bankruptcy In The Federal Courts, Fowler Vincent Harper

Articles by Maurer Faculty

No abstract provided.

Presumptions Affecting The Recovery Of Preferences By Trustee In Bankruptcy, Fowler V. Harper

Articles by Maurer Faculty

No abstract provided.