Law Commons^™

Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz

Osgoode Hall Law Journal

The conventional wisdom is that the poor are not heavy users of the insolvency system, because creditors are unwilling to take risks on the poor and because many of the poor are judgment-proof. However, credit is now widely available across the spectrum of income groups. In addition, poverty is often a temporary state for many Canadians; therefore, being judgment-proof is likewise temporary. Some of those who are poor at any point in time are in fact in need of bankruptcy protection. They have debts that they are unable to pay and little likelihood of being able to repay in the …

Managers’ Fiduciary Duties In Financially Distressed Corporations: Chaos In Delaware (And Elsewhere), Rutheford B. Campbell Jr., Christopher W. Frost

Law Faculty Scholarly Articles

The inherent conflict between creditors and shareholders has long occupied courts and commentators interested in corporate governance. Creditors holding fixed claims to the corporation's assets generally prefer corporate decision making that minimizes the risk of firm failure. Shareholders, in contrast, have a greater appetite for risk, because, as residual owners, they reap the rewards of firm success while sharing the risk of loss with creditors.

Traditionally, this conflict is mediated by a governance structure that imposes a fiduciary duty on the corporation's managers-its officers and directors-to maximize the value of the shareholders' interests in the firm. In this traditional view, …

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - Theory And Policy, Kelli A. Alces, Larry E. Ribstein, Alan Schwartz, Simone M. Sepe

Journal of Business & Technology Law

No abstract provided.

The Law Of Unintended Consequences, Margaret Howard

Scholarly Articles

My purpose is to talk about the 2005 Amendments and how things are going with the new provisions. But where do you start, with a bad law? We could start with the enactment process, but that's old news now. And besides,you've already heard the line: "Some members of Congress could not be bought; for everyone else there was MasterCard." We could talk about the policy choices, and the 2005 Amendments clearly represent a shift in that respect--perhaps in the category of "seismic" or "cataclysmic."

Directors' Duties In Failing Firms, Larry E. Ribstein, Kelli A. Alces

Journal of Business & Technology Law

No abstract provided.

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - The Duty To Creditors In Practice, J. William Callison, Mark A. Grovic, James J. Hanks Jr., Roger A. Lane

Journal of Business & Technology Law

No abstract provided.

Your Licensor Has A License To Kill, And It May Be Yours: Why The Ninth Circuit Should Resist Bankruptcy Law That Threatens Intellectual Property Licensing Rights, Jon Minear

Seattle University Law Review

In recent opinions, the U.S. Court of Appeals for the Seventh Circuit has interpreted the Bankruptcy Code ("the Code") in a manner that makes inaction or ignorance perilous for IP licensees whose licensor declares bankruptcy. Although Congress amended the Code to protect a licensee from losing technology rights in these situations, the Seventh Circuit has narrowly interpreted a strikingly similar bankruptcy provision involving real-estate leases and, in doing so, has cast doubt on the efficacy of the licensee protections found in section 365(n) of the Code. In addition, this circuit has broadly interpreted another Code section dealing with title-clearing sales …

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - History & Background, Royce De R. Barondes, Lisa Fairfax, Lawrence A. Hamermesh, Robert Lawless

Journal of Business & Technology Law

No abstract provided.

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - Presentation Of Much Ado About Little? Directors' Fiduciary Duties In The Vicinity Of Insolvency, Stephen M. Bainbridge

Journal of Business & Technology Law

No abstract provided.

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - Comparative & International Perspectives, Andres Engert, Reid Feldman, Pamela L.J. Huff, Donna W. Mckenzie-Skene

Journal of Business & Technology Law

No abstract provided.

Much Ado About Little? Directors' Fiduciary Duties In The Vicinity Of Insolvency, Stephen M. Bainbridge

Journal of Business & Technology Law

No abstract provided.

Fiduciary Duties In Distressed Corporations: Second Generation Issues, Royce De R. Barondes

Journal of Business & Technology Law

No abstract provided.

The Duty To Creditors Reconsidered - Filling A Much Needed Gap In Corporation Law, Richard A. Booth

Journal of Business & Technology Law

No abstract provided.

Why A Fiduciary Duty Shift To Creditors Of Insolvent Business Entities Is Incorrect As A Matter Of Theory And Practice, J. William Callison

Journal of Business & Technology Law

No abstract provided.

From Production Resources To Peoples Department Stores: A Similar Response By Delaware And Canadian Courts On The Fiduciary Duties Of Directors To Creditors Of Insolvent Companies, Pamela L.J. Huff, Russell C. Silberglied

Journal of Business & Technology Law

No abstract provided.

Direct Creditor Claims For Breach Of Fiduciary Duty: Is They Is, Or Is They Ain't? A Practitioner's Notes From The Field, Roger A. Lane

Journal of Business & Technology Law

No abstract provided.

Directors' Duty To Creditors Of A Financially Distressed Company: A Perspective From Across The Pond, Donna W. Mckenzie-Skene

Journal of Business & Technology Law

No abstract provided.

Directors' Duty To Creditors And The Debt Contract, Simone M. Sepe

Journal of Business & Technology Law

No abstract provided.

Gap Filling In The Zone Of Insolvency, Frederick Tung

Journal of Business & Technology Law

No abstract provided.

Timbers Of Inwood Forest, The Economics Of Rent, And The Evolving Dynamics Of Chapter 11, Edward R. Morrison

Faculty Scholarship

The Supreme Court's decision in Timbers of Inwood Forest occupies an unhappy position in bankruptcy case law. It is often remembered as a troubled interpretation of the Code, denying undersecured creditors compensation for an important source of depreciation – depreciation in the real value of a creditor's claim during a lengthy reorganization process. But Timbers was not a simple case in which a bank was denied adequate protection for lost investment opportunities. It was instead a case in which the bank tried to opt out of the bankruptcy process itself. The debtor was an apartment complex. After it entered bankruptcy, …

Bankruptcy Pro Bono Representation Of Consumers: The Seven Deadly Sins, Nancy B. Rapoport, Roland Bernier Iii

Scholarly Works

This article attempts to walk the reader through the morass left by BAPCPA, using the seven deadly sins as its motif.

Eliminating The Judicial Function In Consumer Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

The centerpiece of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has been the means test, a formulaic statutory directive pursuant to which courts are to presume abuse of the bankruptcy system by Chapter 7 debtors who have an ability to repay past debts with future income. This Essay provides a new insight into means testing by arguing that, more than anything else, it has brought about a significant change in the institutional design of bankruptcy courts: namely, the increased blurring of administrative and judicial functions. The Essay concludes that this development should be cause for concern as …

Teaching Selected Ethical Issues In Bankruptcy, Michael Korybut

All Faculty Scholarship

Both consumer and business bankruptcies present numerous ethical questions. Like any lawyer, the bankruptcy attorney must be familiar with a variety of ethics codes and rules, such as the 1969 ABA Model Code of Professional Responsibility or the 1983 ABA Model Rules of Professional Conduct. Further, the Bankruptcy Code has a number of provisions that raise ethical questions. Accordingly, when the author teaches his Bankruptcy survey course, he devotes time in a number of classes to ethical issues. In particular, the author spends a good part of one class on Bankruptcy Code section 327(a) which prohibits an attorney representing the …

Representing Victims Of Domestic Violence In Property Distribution Proceedings After The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Elizabeth Brandt

Articles

No abstract provided.

The Maxwell Case, John A. E. Pottow

Book Chapters

This chapter will provide some broader context regarding the famous Maxwell Communication bankruptcy, which is one of the most significant cross-border insolvency precedents to date.1 It does so by first looking at Bob Maxwell's life and business in roughly chronological stages (the good, the bad, and the ugly). It then explores the insolvency proceedings that bear his name (the beautiful) and one specific litigation action within those proceedings of particular importance (the exquisite). Finally, it offers some brief reflection on what the Maxwell case may have taught us (the sublime).

Bankruptcy Decision Making: An Empirical Study Of Continuation, Edward R. Morrison

Faculty Scholarship

Many small businesses attempt to reorganize under Chapter 11 of the U.S. Bankruptcy Code, but most are ultimately liquidated instead. Little is known about this shutdown decision. It is widely suspected that the bankruptcy process exhibits a continuation bias, allowing failing businesses to linger under the protection of the court, which resists liquidation even when it is optimal. This paper examines the shutdown decision in a sample of Chapter 11 bankruptcy cases filed in a typical bankruptcy court over the course of a year. The presence of continuation bias is tested along several dimensions – the extent of managerial control …

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

UF Law Faculty Publications

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy, an article published in the Stanford Law Review, that improvements in the market for large, public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000-2004 with the recoveries in bankruptcy reorganizations during …

Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown

Journal Articles

Standing to appeal bankruptcy court orders today is limited to those with a pecuniary interest. This prudential limitation is based on the person aggrieved requirement of Section 39(c) of the Bankruptcy Act of 1898 - a requirement that was not included in the Bankruptcy Code. This article examines the extensive differences between the Act and the Code, the potential justifications for extending the pecuniary interest test in spite of the omission of the person aggrieved requirement, and the potential ramifications for parties and the integrity of the bankruptcy process. This analysis suggests that standing to appeal bankruptcy orders should be …

Private Liability For Reckless Consumer Lending, John A. E. Pottow

Articles

Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will be …

The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow

Articles

A decade ago, in 1996, the landscape of transnational insolvencies was vastly different from today. The UNCITRAL Model Law had not been finished, the efforts at the E.U. Insolvency Treaty were jeopardized by mad cows, and no one had heard of Chapter 15. Now, all three universalist projects are up and running, putting universalism in a comfortable state of ascendancy. The paradigm has not been without critics, however, the most persistent and eloquent of which has been Professor Lynn LoPucki. LoPucki has periodically attacked universalism on a number of grounds. These grievances include a sovereigntist complaint of universalism's insensitivity to …