Law Commons^™

Behavioral Economics, The Economic Analysis Of Bankruptcy Law And The Pricing Of Credit, Robert K. Rasmussen

Vanderbilt Law Review

Bankruptcy has been a fertile ground for the economic analysis of law. A significant portion of bankruptcy scholarship during the past fifteen years applies the basic assumptions of standard economic theory to the problems caused by financial distress. This scholarship begins with the premise that people make choices in a rational manner in order to maximize their individual utility. It applies this axiom to questions ranging from when do individuals file for bankruptcy to how bankruptcy laws affect firms' investment decisions. As it has in most other areas of law (especially private law), law and economics has both reshaped our …

The Bankruptcy Crisis, Elizabeth Warren

Indiana Law Journal

No abstract provided.

Fiduciary Duties Of Officers And Directors Of Distressed Corporations, Royce De R. Barondes

Faculty Publications

This Article argues that this widely-accepted premise for analyzing the incentives created by various alternative structures of federal bankruptcy law is suspect.

Re-Reading Reading: "Fairness To All Persons" In The Context Of Administrative Expense Priority For Postpetition Punitive Fines In Bankruptcy, Stephen D. Hurd

Vanderbilt Law Review

Who gets the money when there isn't enough to go around? This is the practical question that the bankruptcy system seeks to answer every day.' In answering this question, the Bankruptcy Code draws a particularly bright line at the filing of a bankruptcy petition. The filing of a petition creates the bankruptcy estate, which is a distinct legal entity from the debtor. Creditors with claims against the debtor arising before filing ("prepetition) receive payment of their claim, if at all, through bankruptcy's collective distribution scheme. In contrast, persons whose claims arose after filing ("postpetition"), but before completion of the bankruptcy …

Bankruptcy, W. Homer Drake Jr., Michael M. Duclos

Mercer Law Review

Unlike past years when the United States Court of Appeals for the Eleventh Circuit issued a tremendous number of bankruptcy decisions each term, 1997 turned out to be a very quiet year because the Eleventh Circuit issued only eight opinions addressing matters arising under the Bankruptcy Code. This Article is a survey of those 1997 bankruptcy decisions.

In Re Young: A Correct But Unnecessary Constitutional Decision, David Lynn Mortensen

BYU Law Review

No abstract provided.

How Should Property Be Valued In A Cram Down?, Mark E. Beatty

Mercer Law Review

One of the most intriguing topics in bankruptcy law is the valuation of property in cram down cases, specifically Chapter 13 cases. This article will first present and discuss the different methods of valuation employed by the circuit courts before Associates Commercial Corp. v. Rash (Rash III) was decided by the Supreme Court and the reasoning behind these methods. The next section will discuss the opinion in Rash and the chosen method of valuation in Chapter 13 cram down cases. The third section will discuss the implications of the decision in Rash. The Article will conclude with …

The Rotten Foundations Of Securitization, David Gray Carlson

William & Mary Law Review

No abstract provided.

The Boiling Pot Of Lawyer Conflicts In Bankruptcy, Charles W. Wolfram

Cornell Law Faculty Publications

I take up here only two modest pieces of the current puzzle of lawyer conflicts of interest in bankruptcy practice. One involves the decision of the American Law Institute (hereinafter "ALI") to sidestep the entire field in the course of drafting its Restatement of the Law Governing Lawyers (hereinafter "Restatement"). The other involves the decision of the National Bankruptcy Review Commission (hereinafter "NBRC") to refuse to recommend that Congress do anything at all major to disturb existing law in the same realm. Either the law of lawyer conflicts in bankruptcy has been blessed in its present state by two prestigious …

How Fresh A Start?: What Are "Household Goods" For Purposes Of Section 522 (F)(1)(B)(I) Lien Avoidance?, Michael G. Hillinger

Faculty Publications

What do camcorders, walkman players, personal computers, stereo components, firearms, chain saws, lawn and garden tools, bicycles, and video game machines have in common?

Well, they are all the things one might find in the typical American home. Although not necessarily cheap to buy new, such items generally do not retain value over time. They frequently serve as collateral for nonpurchase money loans. In a bankruptcy context, they share another characteristic; courts have had to decide if they are household goods such that a debtor is able to avoid a nonpossessory, nonpurchase money security interest in them. Indeed, over 270 …

National Bankruptcy Review Commission's Section 365 Recommendations And The Larger Conceptual Issues, David G. Epstein

Law Faculty Publications

In the chapter of the Report of the National Bankruptcy Commission ("Report") entitled "Business Bankruptcy," the National Bankruptcy Review Commission ("Review Commission") makes four recommendations regarding section 365 of the Bankruptcy Code: 2.4.1 Clarifying the Meaning of "Rejection" The concept of "rejection" in section 365 should be replaced with "election to breach." Section 365 should provide that a trustee's ability to elect to breach a contract of the debtor is not an avoiding power. Section 502(g) should be amended to provide that a claim arising from the election to breach shall be allowed or disallowed the same as if such …

Don't Go And Do Something Rash About Cram Down Interest Rates, David G. Epstein

Law Faculty Publications

This Article considers the second and different question of how to value the proposed payments under the plan. While the question of how to value the proposed payments under the plan is different from the question of how to value the creditor's security interest in property, there is a connection between the answers to the questions. The value of the payments must at least equal the value of the security interest.

The Wisconsin Exemption Clause Debate Of 1846: An Historical Perspective On The Regulation Of Debt, Bernard Trujillo

Bernard Trujillo

No abstract provided.

The Wisconsin Exemption Clause Debate Of 1846: An Historical Perspective On The Regulation Of Debt, Bernard R. Trujillo

Law Faculty Publications

No abstract provided.

State Sovereign Immunity And The Bankruptcy Code (Part One), Karen Gebbia

Publications

This article is the first of a two-part series in which Professor Gebbia-Pinetti considers how the complexities of state sovereign immunity apply to bankruptcy actions. The present article lays the foundation by analyzing the source, scope, and nature of states' immunity from suits filed in federal court to enforce state and federal law. This includes a discussion of traditional sovereign immunity, Eleventh Amendment immunity, abrogation of immunity, and the Supreme Court's decision in Seminole Tribe v. Florida. The second article will consider the extent to which the bankruptcy estate may enforce Bankruptcy Code actions against the states, notwithstanding state sovereign …

State Sovereign Immunity And The Bankruptcy Code (Part Two), Karen Gebbia

Publications

This article is the second of a two-part series in which Professor Gebbia-Pinetti considers how the complexities of state sovereign immunity apply to bankruptcy actions. The first article laid the foundation by analyzing the source, scope, and nature of states' immunity from suits filed in federal, court to enforce state and federal law (Journal of Bankruptcy Law and Practice, September/October 1998). The present article considers the extent to which the bankruptcy estate may enforce Bankruptcy Code actions against the states, notwithstanding state sovereign immunity.

Bankruptcy Thermodynamics, 50 Fla. L. Rev. 329 (1998), Paul B. Lewis

UIC Law Open Access Faculty Scholarship

No abstract provided.

In This Corner, We Have The Bankruptcy Code's Discharge Provisions And In This Corner, Cercla, A Strict Liability Statue: In Re Reading Company, Jennifer A. Pasquarella

Villanova Environmental Law Journal

No abstract provided.

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 …

Family Values And The Bankruptcy Code: A Proposal To Eliminate Bankruptcy Benefits Awarded On The Basis Of Marital Status, A. Mechele Dickerson

Faculty Publications

No abstract provided.

To Love, Honor, And (Oh) Pay: Should Spouses Be Forced To Pay Each Other's Debts?, A. Mechele Dickerson

Faculty Publications

No abstract provided.

An Evolutionary Theory Of Corporate Law And Corporate Bankruptcy, David A. Skeel Jr.

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Law And Finance Of Bank And Insurance Insolvency Regulation, David A. Skeel Jr.

Faculty Scholarship at Penn Carey Law

No abstract provided.

Bankruptcy Judges And Bankruptcy Venue: Some Thoughts On Delaware, David A. Skeel Jr.

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Theory, Reality, And Pragmatism Of Corporate Governance In Bankruptcy Reorganizations, Christopher W. Frost

Law Faculty Scholarly Articles

Governing a corporation during a Chapter 11 reorganization presents a special case of the age-old problem of the separation of ownership and control. Critics of Chapter 11 have long pointed to the insulation provided by the automatic stay to managers of the business as one of the causes of bankruptcy inefficiency. Protected from the normal contractual and market forces that restrain the behavior of managers of healthy companies, managers of firms in bankruptcy, the harshest critics charge, use delay and other strategies to enrich themselves and the shareholders at the expense of the firm's creditors.

This Article addresses the financial …

Asset Securitization: The Unsecured Creditor's Perspective, Lois R. Lupica

Faculty Publications

The Article examines assumptions behind literature that uncritically assumes that securitization transactions are necessarily efficient, finding that these assumptions are unwarranted. The Article is the first to view securitization transactions from an unsecured creditor’s perspective, and concludes that from such a perspective, securitization is not the panacea its proponents claim it to be.

The article first defines structured finance and describes the nature of the current market for asset-backed securities. Then, it outlines the benefits that securitization provides to originators and other transaction participants. With that background, it turns to the debate on the efficiency of secured transactions, applies the …

The Bankruptcy Review Commission Recommendation On Classification Of Claims In Chapter 11, Scott F. Norberg

Faculty Publications

No abstract provided.

Debtor Incentives, Agency Costs And Voting Theory In Chapter 11, Scott F. Norberg

Faculty Publications

No abstract provided.

The Essential Structure Of Judgment Proofing, Lynn M. Lopucki

UF Law Faculty Publications

This article argues that substantially all judgment proofing can be described through a single model: a symbiotic relationship between two or more entities, in which one of the entities generates disproportionately high risks of liability while the other owns a disproportionately high level of assets. The two entities typically are joined by a contract that allocates the profits gained from externalization of the tort liability. Proof that the model is workable even in large businesses is made by demonstrating that a single business can be divided into two such entities without altering its components or its function. The courts cannot …

Bright Lines Or Blurry Labels, Walter Effross

Articles in Law Reviews & Other Academic Journals

Introduction:The emerging mathematical discipline of "fuzzy logic" has recently sparked dramatic efficiencies in modern industrial processes while inviting comparisons to the age-old philosophies of Taoism and Zen. As concepts of "fuzziness" have filtered from technical journals to popular science magazines to trade paperbacks, they have begun to appear in legal commentaries as well.