Bankruptcy Law Commons^™

Why Warn? – The Worker Adjustment And Retraining Notification Act In Bankruptcy, Laura B. Bartell

Law Faculty Research Publications

The Worker Adjustment and Retraining Notification ("WARN") Ace was enacted by Congress in 1988 to provide limited protections to workers whose jobs are suddenly and permanently terminated. The WARN Act generally precludes an "employer" from ordering a "plant closing or mass layoff" until the expiration of a sixty-day period after giving written notice of such proposed action. Pursuant to legislative directive, the Department of Labor ("Department") promulgated a final rule in 1989 interpreting the provisions of the statutory language. Although neither the WARN Act itself nor the final rule makes any reference to bankrupt employers, in the preamble to the …

Avoidance Theory According To Steve Nickles, David Gray Carlson

Cardozo Law Review

No abstract provided.

Bankruptcy Reform: An Orderly Development Of Public Policy , William T. Bodoh, Lawrence P. Dempsey

Cleveland State Law Review

In legislating the pending bankruptcy "reform," Congress has made many of the key decisions behind closed doors. In fact, the process has been characterized as a congressional effort to pass a "stealth bankruptcy bill." This secrecy brings into question the democratic nature of congressional deliberation. When the Framers designed the legislative branch, open debate was envisioned as the rule, not the exception. Unfortunately, Congress has adopted a secretive, approach to pushing through recent bankruptcy legislation. In a sharp departure from the decades-long congressional approach to bankruptcy legislation, "Congress stopped seeking expert advice and instead turned to special interest lobbyists…” Thus, …

Crystals And Mud In Bankruptcy Law: Judicial Competence And Statutory Design, Edward J. Janger

Faculty Scholarship

No abstract provided.

The Locus Of Lawmaking: Uniform State Law, Federal Law, And Bankruptcy Reform, Edward J. Janger

Faculty Scholarship

No abstract provided.

Game Of High Stakes Roulette: Credit Card Companies Cash In On Gamblers' Bad Luck, 32 J. Marshall L. Rev. 1197 (1999), Maya Hoffman

UIC Law Review

No abstract provided.

Brandeis, Progressivism, And Commercial Law: Rethinking Benedict V. Ratner, Edward J. Janger

Faculty Scholarship

No abstract provided.

The Political Economy Of The Bankruptcy Reform Act Of 1978, Eric A. Posner

Michigan Law Review

These are the goals of this article. In particular, this article analyzes the legislative history of the Bankruptcy Reform Act of 19783 and related materials, in the hope of describing the influence of interest groups on the final statute. It has, of course, long been assumed that certain narrow provisions of the 1978 Act reflect the influence of interest groups - for example, the section that gives special protection to security and lease interests in aircraft. This article goes farther and argues that fundamental elements of the 1978 Act reflect political compromises among competing interest groups. In particular, I claim …

In Defense Of Language, The Supreme Court And Congress: A Reply To Professor Chemerinsky, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

The Virtue Of Speed In Bankruptcy Proceedings, James J. White

Articles

In my opinion the principal difficulty with Chapter 11 is that it gives strong incentives to various Chapter 11 players to distort the priorities that were intended by Congress.

Strategies For Preserving The Bankruptcy Trustee's Avoidance Power Against States After Seminole Tribe, Edward J. Janger

Faculty Scholarship

No abstract provided.

Rights Of Subrogation In Letters Of Credit Transactions, James J. White

Articles

The past twenty years have seen more than a dozen cases, in which parties to letter of credit transactions have sought subrogation to the rights of the person they have paid or to the rights of the persons on behalf of whom, they have acted.' The most obvious case arises when the issuer of a standby letter of credit pays a beneficiary on a debt that is owed to the beneficiary by a bankrupt applicant. Having failed to take 'collateral from the applicant, the issuer seeks to be subrogated to the security interest of the beneficiary. Failing subrogation, the issuer …

The Fdic's Fraudulent Conveyance Power Under The Crime Control Act Of 1990: Bank Insolvency Law And The Politics Of The Iron Triangle, Edward J. Janger

Faculty Scholarship

No abstract provided.

Bankruptcy In Russia: The Evolution Of A Comprehensive Russian Bankruptcy Code, Paul Williams, Paul Wade

Scholarly Articles in Law Reviews & Journals

This article traces the development of the current bankruptcy code, with it origins in the early economic laws of perestroika; explains key provisions of the current law; and comments on the prospects for its effective implementation. The intent of this article is to provide a balanced understanding of the Russian bankruptcy code useful both to the study of the emergence of a market-based economy in Russia and as a bankruptcy primer for individuals or corporations conducting business in Russia.

The Equal Access To Justice Act--Are The Bankruptcy Courts Less Equal Than Others?, Matthew J. Fischer

Michigan Law Review

This Note argues that the bankruptcy courts have authority under the BAJA to shift fees against the federal government. Part I discusses the relevant caselaw and examines the basis of the current controversy. Part II examines the statutory language, the legislative history, and the stated purposes of the BAJA and concludes that each of these aspects of the statute demonstrates a congressional intent to grant fee-shifting authority to the bankruptcy courts. Part III considers alternatives to finding bankruptcy court jurisdiction over BAJA disputes, rejecting each as inefficient and unnecessary. This Note concludes that courts should construe the BAJA consistently with …

The Fantastic Wisconsylvania Zero-Bureaucratic-Cost School Of Bankruptcy Theory: A Comment, James W. Bowers

Michigan Law Review

In two recently published articles, Wisconsin Law Professor Lynn LoPucki and Pennsylvania Law Professor Elizabeth Warren, nearly simultaneously, fired the latest shots in one of academia's hottest ongoing debates: whether any good reason for having bankruptcy law exists. Justice Holmes once opined that the future belonged to the lawyer skilled in statistics and economics. LoPucki and Warren apparently agree about statistics but argue that, in a world with positive transaction costs, economic theory has little to contribute to our understanding about the justifications for bankruptcy law.

I write to highlight what one might easily overlook in LoPucki's and Warren's pieces. …

Preference Conundrums, James J. White, Daniel Israel

Articles

Every law teacher and many law students and practitioners understand the intellectual sport to be found in Section 547 on preference law. Because the preference rules are so intricate, rigorously logical-but really not logical-they command more than their fair attention, not only in law school but also in continuing legal education and even in the courts. Our purpose in this article is not to answer any of the difficult questions or to give a global explanation of preference law. Rather it is to confront a few of the conundrums in Section 547 and to follow the paths of those conundrums …

Grammarians At The Gate: The Rehnquist Court's Evolving Plain Meaning Approach To Bankruptcy Jurisprudence, Walter Effross

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Strange Visions In A Strange World: A Reply To Professors Bradley And Rosenzweig, Lynn M. Lopucki

Michigan Law Review

Much about chapter 11 is in need of improvement. But, as is so often the case, the resonant themes are not the right ones. All three legs of Bradley and Rosenzweig's argument for repeal are seriously flawed. The heart of their empirical argument is their claim to have shown that financially stronger companies reorganizing under chapter 11 have been paying less to both their creditors and their shareholders than did weaker companies reorganizing under prior law. In Part I below, I present several more plausible explanations for the stock and bond price phenomena they observed. In all likelihood, their data …

A Rule Unvanquished: The New Value Exception To The Absolute Priority Rule, Clifford S. Harris

Michigan Law Review

This Note examines whether the new value exception remains part of the revised Bankruptcy Code. Part I discusses the background of the new value exception. Part II traces the development of the conflict concerning the survival of the new value exception subsequent to the adoption of the Code. It then discusses the Supreme Court's opinions in Mid/antic National Bank v. New Jersey Department of Environmental Protection and its progeny, which established the methodology for determining the impact of the revised Bankruptcy Code on preexisting bankruptcy law. Based on an analysis of the Midlantic doctrine, Part II concludes that Congress did …

Rotten To The "Core": An Essay On Juries, Jurisdiction And Granfinanciera, G. Ray Warner

Faculty Publications

(Excerpt)

Like a worm in an apple, the recent Granfinanciera, S.A. v. Nordberg decision has eaten away the article III heart of the current bankruptcy jurisdictional scheme while leaving nothing more than a seventh amendment blemish on the surface.

Granfinanciera ostensibly involves only the question whether Congress may, consistent with the seventh amendment jury trial guarantee, bar trial by jury in a fraudulent conveyance action brought in the bankruptcy court. The Court, however, converts the issue into an article III delegation question by equating Congress' power to override the seventh amendment with its power to delegate matters to non-article III …

Absolute Priority And New Value, James J. White

Articles

This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …

Trading Claims And Taking Control Of Corporations In Chapter 11, Chaim J. Fortgang, Thomas Moers Mayer

Cardozo Law Review

No abstract provided.

The Exclusivity Period In Section 1121: How Exclusive Is It, Ross L. Weston

Cardozo Law Review

No abstract provided.

The Controversy Over Section 548 Of The Bankruptcy Code In The Mortgage Arena: Making The Case For A Federal Statute Reforming The Foreclosure Process, 23 J. Marshall L. Rev. 683 (1990), Robert A. Glaves

UIC Law Review

No abstract provided.

Levit V. Ingersoll Rand Financial Corp.: The Demise Of Independent Preference Liability Under 550(A), 23 J. Marshall L. Rev. 501 (1990), Michael Keaton

UIC Law Review

No abstract provided.

The Role Of Empirical Data In Developing Bankruptcy Legislation For Individuals, Marjorie L. Girth

Indiana Law Journal

Symposium: As We Forgive Our Debtors

Bankruptcy In The Administrative State, Theodore Eisenberg

Cornell Law Faculty Publications

Personal Bankruptcy Under The 1978 Bankruptcy Code: An Economic Analysis, Michelle J. White

Indiana Law Journal

No abstract provided.

Taking From Farm Lenders And Farm Debtors: Chapter 12 Of The Bankruptcy Code, James J. White

Articles

In passing Chapter 12 of the Bankruptcy Reform Act, Congress has effectively invalidated certain important provisions of existing farm mortgages. Equally significant, Congress has disabled farmers from granting binding mortgages on the full, value of their property. Although no court is likely to find the Chapter to violate the fifth amendment, the Chapter constitutes a substantial and retroactive alteration of the rights of existing mortgagees and a restriction on the powers of prospective mortgagors to grant valid mortgages. The thesis of this paper is that Congress was both wrong and shortsighted in its enactment of Chapter 12. Congress was wrong …