Bankruptcy Law Commons^™

The Effect Of Franchisor Bankruptcy On Executory Supply Contracts: Does The Franchisee Have A Remedy?, Matthew J. Burne

Barry Law Review

No abstract provided.

Mortgage Foreclosures, Mortgage Morality, And Main Street: What’S Really Happening?, Jennifer M. Smith

Journal Publications

The American economy is in the tank. Millions of citizens are without jobs, overwhelmed with credit card debt, and losing their homes. The brighter side is that as a result, America has finally embraced financial reform, and the unstable economy is stabilizing marriages. Nevertheless, the United States remains in the midst of a housing crisis, and the ending remains uncertain.

There has been a media blitz about the housing crisis and Wall Street - corporate interests, but much less about the actual impact of the housing crisis on Main Street - America's working class people and small business owners. This …

From Feudal Land Contracts To Financial Derivatives: The Treatment Of Status Through Specific Relief, John J. Chung

Law Faculty Scholarship

No abstract provided.

Why Can't We Be Friends? It's War!, William Henslee

Journal Publications

This article will trace the origins of the original band WAR through the years that led up to a pie-throwing incident that had been brewing for over ten years. It is an unbelievable story involving greed, betrayal, legal malpractice, and, of course, rock and soul. While there are no "good guys" in this story, the real victims are the consumers and fans. The original WAR members cannot use biographical information related to WAR in advertising; while the cover band WAR is owned and operated by the original WAR's manager. Confused? So is the consumer. "Take a little trip with me" …

Selling The Payments: Predatory Lending Goes Primetime, 41 J. Marshall L. Rev. 587 (2008), Dustin Fisher

UIC Law Review

No abstract provided.

Selling It First, Stealing It Later: The Trouble With Trademarks In Corporate Transactions In Bankruptcy, Xuan-Thao Nguyen

Articles

Why does AI get two bites of the “Apple” trademark? Should AI be allowed to grant the right to use the trademark “perpetual and exclusive” with the sale of the music division and steal it back for free, ten years later? This article is part of an ongoing and broader inquiry into the intersection of trademark, contract and bankruptcy laws. This article argues that recent bankruptcy decisional law, notably the In re Exide Technologies decision, misunderstands the “perpetual and exclusive” trademark transaction, deeming it as an ordinary “license” when it is truly an outright sale. This article explains that the …

Corporate Social Accountability Standards In The Global Supply Chain: Resistance, Reconsideration, And Resolution In China, Li-Wen Lin

Cardozo Journal of International and Comparative Law

This Article provides a view on corporate social accountability standards from a Chinese perspective, a slightly different angle from that of legal scholars in the United States. The legal literature in the United States typically only focuses on the importance and effectiveness of corporate social accountability standards to regulate the conduct of multinational companies in the era of globalization. However, the views of the outsourced companies in the developing countries, on which the multinational companies impose the standards, have seldom received attention. This Article tries to fill this void by examining the situation in China. As shown in this Article, …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Finding Nemo: Rediscovering The Virtues Of Negotiability In The Wake Of Enron, Adam J. Levitin

ExpressO

Creditors have long understood that any claims they submit for repayment in a bankruptcy might be valid, but subject to subordination in the order of payment of the bankruptcy estate’s limited funds if the creditor behaved inequitably as the debtor failed. A groundbreaking opinion in Enron’s on-going bankruptcy has expanded the practice of equitable subordination far beyond its traditional reach. According to the court, buyers of bankruptcy claims are now subject to subordination, not just for their own conduct, but also for conduct of previous owners of the claims, regardless of whether the conduct related to the claims.

In a …

Greed And Pride In International Bankruptcy: The Problems And Proposed Solutions To “Local Interests”, John A. E. Pottow

Law & Economics Working Papers Archive: 2003-2009

From just-enacted (2005) chapter 15 of the U.S. Bankruptcy Code to the U.K. Enterprise Act of 2002, legislative reforms to international bankruptcy are on the rise. One of the thorniest issues facing scholars and policymakers alike in these efforts is what to do with the nettlesome problem of “local interests.” What exactly are these “local interests,” and what is it that we are we trying to protect? Literature to date has been elusive in pinning this down and has offered, for the most part, only undifferentiated anxiety that an international bankruptcy regime may impinge undesirably upon “local concerns.” This article …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Contract As Statute, Stephen J. Choi, G. Mitu Gulati

Michigan Law Review

The traditional model of contract interpretation focuses on the "meeting of the minds." Parties agree on how to structure their respective obligations and rights and then specify their agreement in a written document. Gaps and ambiguities are inevitable. But where contract language exists for the point in contention and a dispute arises as to the meaning of this language, courts attempt to divine what the parties intended. Among the justifications for deferring to the intent of the parties is the assumption that parties know what is best for themselves. Deference also arguably furthers autonomy values. Not all contracts and contract …

Say "Ahhh!": A New Approach For Determining The Cram Down Interest Rate After Till V. Scs Credit, Michael Elson

Cardozo Law Review

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review Of Lynn M. Lopucki, "Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts", Todd J. Zywicki

George Mason University School of Law Working Papers Series

In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki’s book argues that that current bankruptcy venue rules have spawned an improper “competition for big cases” that has “corrupted” America’s bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki’s book …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki

George Mason University School of Law Working Papers Series

Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary …

Financial Contracts And The New Bankruptcy Code: Insulating Markets From Bankrupt Debtors And Bankruptcy Judges, Edward R. Morrison, Joerg Riegel

Faculty Scholarship

The reforms of 2005 yield important but subtle changes in the Bankruptcy Code's treatment of financial contracts. They might appear only to eliminate longstanding uncertainty surrounding the protections available to financial contract counterparties, especially counterparties to repurchase transactions and other derivative contracts. But the ambit of the reforms is much broader. The expanded definitions – especially the definition of "swap agreement" – are now so broad that nearly every derivative contract is subject to the Code's protection. Instead of protecting particular counterparties to particular transactions, the Code now protects any counterparty to any derivative contract. Entire markets have been insulated …

Derivatives And The Bankruptcy Code: Why The Special Treatment?, Franklin R. Edwards, Edward R. Morrison

Faculty Scholarship

The collapse of Long Term Capital Management (LTCM) in Fall 1998 and the Federal Reserve Bank's subsequent efforts to orchestrate a bailout raise important questions about the structure of the Bankruptcy Code. The Code contains numerous provisions affording special treatment to financial derivatives contracts, the most important of which exempts these contracts from the "automatic stay" and permits counterparties to terminate derivatives contracts with a debtor in bankruptcy and seize underlying collateral. No other counterparty or creditor of the debtor has such freedom; to the contrary, the automatic stay prohibits them from undertaking any act that threatens the debtor's assets. …

Archer V. Warner: Circuit Split Resolution Or Contractual Quagmire?, Jennifer R. Belcher

Washington and Lee Law Review

No abstract provided.

The End Of Notice: Secrets And Liens In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article explores important recent changes in the way that we treat personal property in commercial finance transactions. Among other things, these changes reduce or eliminate the obligation to give notice of interests in personal property when it is used in commercial finance transactions (as, e.g., collateral for a loan).

A principal purpose of notice-filing has been to deter the creation of secret liens, interests in property that are neither recorded nor otherwise readily observable. Secret liens are universally castigated as abhorrent.

Yet, two recent sets of legislative developments suggest that we may care much less about the problem of …

Credible Coercion, Oren Bar-Gill, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

The ideal of individual liberty and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate “post-coercion” to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex-post anti-duress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible—when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party—ex post relief will only induce the strong party to execute the threatened outcome, to the detriment of the coerced party. Anti-duress relief …

Creditors' Rights Risk: A Title Insurer's Perspective, 38 J. Marshall L. Rev. 223 (2004), Paul L. Hammann, John C. Murray

UIC Law Review

No abstract provided.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

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 …

15th Annual Legal Issues For Financial Institutions Conference, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Walter R. Byrne Jr, Mark F. Sommer, Lisa Koch Bryant, Leonard A. Watkins, Thomas W. Grundy, Joann B. Heppermann, James C. Seiffert, William H. Haden Jr., T. Richard Riney, Marcus P. Mcgraw, W. Bradford Boone, John T. Mcgarvey, James F. Rose, J. Rick Jones, M. Thurman Senn, M. Brooks Senn

Continuing Legal Education Materials

Program and materials from the 15th Annual Legal Issues for Financial Institutions Conference held by UK/CLE on March 10-11, 1995.

Caught Between Rocks And Hard Places: The Plight Of Reinsurance Intermediaries Under U.S. And English Law, Stephen W. Schwab, Peter G. Gallanis, David E. Mendelsohn, Bradley V. Ritter

Michigan Journal of International Law

Accordingly, Part I of this article provides a review of the role intermediaries have played in the recent spate of insurance company insolvencies and an overview of intermediary rights and duties. Part II then progresses to a discussion of English intermediary law, analyzing how the general English rules apply to intermediaries when a cedent or reinsurer becomes insolvent. Part III addresses the same issues under U.S. law, tracing the most recent statutory developments from their cause and considering their effect on reinsurance transactions. This article concludes with a discussion of how English and U.S. law interact in reinsurance transactions, pointing …

Bankruptcy And Subleases: The Depravity Of Privity, Rhonda S. Berliner

Cardozo Law Review

No abstract provided.

Licenses, Trademarks, And Bankruptcy, Oh My: Trademark Licensing And The Perils Of Licensor Bankruptcy, 25 J. Marshall L. Rev. 143 (1991), David M. Jenkins

UIC Law Review

No abstract provided.

United States Government Contract: The Unilateral Act Of Government Contracting, Sawvalak Chulpongstorn

LLM Theses and Essays

The debarment, suspension, and termination of the Government contract can cause a sudden financial ruin or bankruptcy of the contractor. Consequently, the question of whether the Government’s debarment, suspension, and termination is proper can be of vital importance. This thesis, in consequence, will focus on two major problem areas of the unilateral act of the government in contracting with the contractor. The first problem area is whether the debarment and suspension meet the requirement of due process of law. The second problem area is whether or not the government’s right to terminate the contract is proper or legal in specific …