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Full-Text Articles in Law
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
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Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?
These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find …
Bankruptcy Grifters, Lindsey Simon
Bankruptcy Grifters, Lindsey Simon
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Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.
But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …
Custodian Or Not: Scrivener's Error In A Bankruptcy Code Safe Harbor, Thomas E. Plank
Custodian Or Not: Scrivener's Error In A Bankruptcy Code Safe Harbor, Thomas E. Plank
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No abstract provided.
The Settlement Trap, Lindsey Simon
The Settlement Trap, Lindsey Simon
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Mass tort victims often wait years for resolution of their personal injury claims, but many who successfully navigate this arduous process will not receive a single dollar of their settlement award. According to applicable bankruptcy and state law, settlement payments may be an asset of the estate that the trustee, exercising its significant authority, administers and distributes to creditors instead of a claimant who had filed for bankruptcy. This distribution power maximizes repayment, a critical counterbalance to the robust protections and benefits that debtors receive in bankruptcy.
Setting aside the perceived unfairness of taking desperately needed money from tort victims, …
Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon
Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon
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The doctrine of claim preclusion promotes fairness and finality by preventing parties from raising claims that already were (or could have been) raised in a prior proceeding. This strict consequence can be imposed only when the litigant received minimal due process protections in the initial proceeding, including notice and direct or indirect participation.
Modern litigation has caused a new problem. In some cases, a party may be precluded from ever raising a claim on the grounds of “fictional consent” to a prior court’s decisionmaking authority. Litigation devices have expanded the potential reach of judgments through aggregation and broad jurisdictional grants, …
The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon
The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon
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Litigation systems create dangers of unfairness. Citizens worry, and should worry, about exploitive settlements in aggregate litigation, potential biases in administrative proceedings, and troubling power imbalances in criminal trials. Public confidence in adjudicative processes has eroded to an all-time low. This Article explores the untapped potential of adding independent watchdog entities to address systemic threats to the integrity of government decisionmaking. These entities, which I call “guardian trustees,” do not fit within the traditional framework of our adversary system. Though guardian trustees already operate in bankruptcy proceedings, they have thus far received little attention in scholarly literature. This Article begins …
Asset Partitioning And Financial Innovation, Christopher Bruner
Asset Partitioning And Financial Innovation, Christopher Bruner
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Review of the article by Ofer Eldar and Andrew Verstein titled “The Enduring Distinction between Business Entities and Security Interests”, 92 Southern California Law Review, no. 2 (2019).
"All Writs" In Bankruptcy And District Courts: A Story Of Differing Scope, George Kuney
"All Writs" In Bankruptcy And District Courts: A Story Of Differing Scope, George Kuney
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No abstract provided.
Securitization Of Aberrant Contract Receivables, Thomas E. Plank
Securitization Of Aberrant Contract Receivables, Thomas E. Plank
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Originators of traditional receivables, such as automobile loans, use securitization and structured finance debt transactions to obtain financing at lower net costs than traditional secured financing. The typical securitization or structured finance debt transaction combines (i) a sale of receivables to a separate, bankruptcy remote, special purpose legal entity (an “SPE”) and (ii) a loan to the SPE secured by the receivables. This combination produces lower net financing costs because the SPE’s lender can obtain repayment of its loan from the receivables while avoiding the costs that the Bankruptcy Code imposes on direct secured lenders to originators that could become …
The Case For Value Billing In Chapter 11, Nancy B. Rapoport
The Case For Value Billing In Chapter 11, Nancy B. Rapoport
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This article explores the forces contributing to very high professional fees in large Chapter 11 cases and suggests that lawyers might want to consider valuing their services in ways other than the traditional billable hour approach.
David Trager: Jurist, Jeffrey B. Morris
Vacating Chrysler, George Kuney
Vacating Chrysler, George Kuney
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This article examines the Chrysler section 363 transaction and the opinions that approved it. Chrysler may be merely another example of good facts and a crisis making what is, perhaps, bad law, which has been a pattern in the evolution of chapter 11 jurisprudence since the Bankruptcy Code was enacted in 1978. The Supreme Court appears to have recognized this in the Chrysler case and took the opportunity created by the petition for the certiorari to attempt to wipe the slate clean and reestablish the pre-Chrysler status quo. If this was the Justices’ intent, it is not clear that they …
Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney
Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney
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The Travelers Indemnity Company v. Bailey, 129 S.Ct. 2195 (2009), presented the Supreme Court with the opportunity to review and decide the issue of whether or not bankruptcy courts have jurisdiction to release non-debtors from claims of other non-debtors that have no impact upon and are not derived from the res of the bankruptcy estate. Instead of reaching the question, however, the Court, in an opinion authored by Justice Souter and joined in by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito, disposed of the case under the principles of res judicata and the bar on collaterally attacking a final …
Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions In Bankruptcy Opinions, Nancy B. Rapoport
Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions In Bankruptcy Opinions, Nancy B. Rapoport
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This article discusses what types of behavior can trigger a bankruptcy court's initiation of sanctions against an attorney.
Rethinking Professional Fees In Chapter 11 Cases, Nancy B. Rapoport
Rethinking Professional Fees In Chapter 11 Cases, Nancy B. Rapoport
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This article discusses the many ways in which professional fees can spiral out of control in chapter 11 bankruptcy cases and evaluates the possible ways to monitor and control those fees.
Debtor Counsel's Fiduciary Duty: Is There A Duty To Rat In Chapter 11?, Nancy B. Rapoport, C. R. Bowles
Debtor Counsel's Fiduciary Duty: Is There A Duty To Rat In Chapter 11?, Nancy B. Rapoport, C. R. Bowles
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This article discusses what duties counsel to the debtor-in-possession owe (and to whom they owe these duties) when the debtor-in-possession wants to do something illegal or just plain dumb.
Federal Interventions In Private Enterprise In The United States: Their Genesis In And Effects On Corporate Finance Instruments And Transactions, Joan Macleod Heminway
Federal Interventions In Private Enterprise In The United States: Their Genesis In And Effects On Corporate Finance Instruments And Transactions, Joan Macleod Heminway
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In response to U.S. corporate failures involved in the current global financial crisis, traditional corporate finance vehicles and tools were widely used in new ways and for new purposes. Of course, one object of the U.S. government’s investment and intervention in, and exercise of influence over, private enterprise during the crisis was to provide for or ensure the provision of adequate capital funding. But its investment, intervention, and influence also represented a new way to oversee and otherwise regulate key business enterprises in the financial services and automotive sectors. This Article reviews certain aspects of the use of preferred stock, …
Sense And Sensibility In Securitization: A Prudent Legal Structure And A Fanciful Critique, Thomas E. Plank
Sense And Sensibility In Securitization: A Prudent Legal Structure And A Fanciful Critique, Thomas E. Plank
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This article responds to a recent critique that the securitization of receivables is a legally shaky financial product that survives only because it is too big to fail. This critique argues that securitization's success in avoiding the costs that the Bankruptcy Code imposes on secured credit, including a bankruptcy trustee's ability to use the cash collateral from the receivables, is a type of fraud that hinders or delays the creditors of the originators of receivables. The critique, however, fails. The cases cited for the author's fraud analysis do not support its thesis. Further, the critique fails to demonstrate that securitization's …
(Almost) Everything We Learned About Pleasing Bankruptcy Judges, We Learned In Kindergarten, Nancy B. Rapoport, Roland Bernier Iii
(Almost) Everything We Learned About Pleasing Bankruptcy Judges, We Learned In Kindergarten, Nancy B. Rapoport, Roland Bernier Iii
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In this essay, we demonstrate that most ethics violations (at least the ones that irritate bankruptcy judges) are also violations of simple rules of behavior that people should have learned in kindergarten.
State Sovereignty In Bankruptcy After Katz, Thomas E. Plank
State Sovereignty In Bankruptcy After Katz, Thomas E. Plank
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No abstract provided.
Toward A More Efficient Bankruptcy Law: Mortgage Financing Under The 2005 Bankruptcy Amendments, Thomas E. Plank
Toward A More Efficient Bankruptcy Law: Mortgage Financing Under The 2005 Bankruptcy Amendments, Thomas E. Plank
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No abstract provided.
The Curious Incident Of The Law Firm That Did Nothing In The Night-Time, Nancy B. Rapoport
The Curious Incident Of The Law Firm That Did Nothing In The Night-Time, Nancy B. Rapoport
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This essay argues that organizations (here, the Milbank, Tweed law firm) often ignore obviously bad behavior by their employees because of various psychological and sociological factors that prevent them from recognizing the behavior as bad in the first place.
Bankruptcy Pro Bono Representation Of Consumers: The Seven Deadly Sins, Nancy B. Rapoport, Roland Bernier Iii
Bankruptcy Pro Bono Representation Of Consumers: The Seven Deadly Sins, Nancy B. Rapoport, Roland Bernier Iii
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This article attempts to walk the reader through the morass left by BAPCPA, using the seven deadly sins as its motif.
Bankruptcy Ethics Issues For Solos And Small Firms, Nancy B. Rapoport
Bankruptcy Ethics Issues For Solos And Small Firms, Nancy B. Rapoport
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This chapter, in Corinne Cooper & Catherine E. Vance's book Attorney Liability in Bankruptcy, walks the reader through some of the traditional ethics issues triggered by representing consumers and small businesses. It also addresses some of the ethics issues that the recent Bankruptcy Amendments (BAPCPA) have created.
Lessons From The Nextwave Saga: The Federal Communications Commission, The Courts, And The Use Of Market Forms To Perform Public Functions, Rodger D. Citron, John A. Rogovin
Lessons From The Nextwave Saga: The Federal Communications Commission, The Courts, And The Use Of Market Forms To Perform Public Functions, Rodger D. Citron, John A. Rogovin
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No abstract provided.
The Security Of Securitization And The Future Of Security, Thomas E. Plank
The Security Of Securitization And The Future Of Security, Thomas E. Plank
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The securitization of mortgage loans and other receivables benefits society and rests on a strong legal foundation. Securitization lowers the financing costs for borrowers and originators of loans by avoiding the costs imposed by the Bankruptcy Code on the secured creditors of operating companies. This article demonstrates how securitization avoids these costs by combining two long recognized legal devices, (1) a true sale of receivables to a buyer (2) that is a separate legal entity whose sole purpose is to finance the receivables. This structure separates the risks associated with the receivables, which creditors can more easily assess, from the …
Let's Make It Official: Adding An Explicit Preplan Sale Process As An Alternative Exit From Bankruptcy, George Kuney
Let's Make It Official: Adding An Explicit Preplan Sale Process As An Alternative Exit From Bankruptcy, George Kuney
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No abstract provided.
The Erie Doctrine And Bankruptcy, Thomas E. Plank
The Erie Doctrine And Bankruptcy, Thomas E. Plank
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No abstract provided.
Recent Developments In Bankruptcy Law, Nancy B. Rapoport
Recent Developments In Bankruptcy Law, Nancy B. Rapoport
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Discussion of 2004 cases regarding bankruptcy law.
Hijacking Chapter 11, George Kuney