Bankruptcy Law Commons^™

The Spirit Of Jubilee, Christopher D. Hampson

BYU Law Review

The Jubilee texts of the Hebrew Bible call for debts to be forgiven and enslaved persons freed every seven years and for farmland to be restored to families every fifty years. Tightly woven into the legal, narrative, and prophetic vision of the text, the Jubilee tradition offers an inspiring and dramatic vision of socioeconomic justice for multiple religious traditions. Yet the American legal tradition, which purports to draw on its religious heritage for inspiration and moral authority, has not fully drawn on the Jubilee tradition for a contemporary vision of equality and justice. This Essay seeks to rekindle that conversation. …

The Business Bankruptcy “Big 3” And The Unanticipated Benefits Of Subchapter V, Marshall V. Ringwood

BYU Law Review

The liberal bankruptcy venue rules in the United States have their defenders and advocates. Subchapter V of the Bankruptcy Code came into effect in 2020, justified as a bipartisan solution to a longstanding problem in corporate bankruptcy where restructuring under Chapter 11 was prohibitively expensive for small-business debtors. On June 21, 2024, Subchapter V’s extended debt limit of $7,500,000 in liabilities reverted back to a statutorily defined $3,024,725. In addition to the justifications offered by organizations such as the American Bankruptcy Institute (ABI) for both Subchapter V, generally, and a permanent increase to its debt limit, I argue that Subchapter …

Debt’S Dominion: A New Epilogue, David Skeel

BYU Law Review

This Essay, written for the “Who Governs Debt’s Dominion” symposium, looks back on Debt’s Dominion: A History of Bankruptcy Law in America as the twenty-fifth anniversary of the book’s publication nears. The Essay begins, in Part I, by briefly describing how Debt’s Dominion came about. Part II identifies and seeks to explain a striking decline in optimism about American bankruptcy law since Debt’s Dominion was first published. Part III explores a few of the major recent developments in consumer bankruptcy, small business bankruptcy, and large-scale corporate reorganization that I would have analyzed in the book if it were written today. …

Specialization And The Permanence Of Federal Bankruptcy Law, Rafael I. Pardo

BYU Law Review

Traditional historical accounts posit that federal bankruptcy specialization in the United States first developed under the system established by the Bankruptcy Act of 1898. That view assumes that the structural and temporal conditions necessary to foster specialization did not exist under the nation’s earlier federal bankruptcy systems—those created by the Bankruptcy Acts of 1800, 1841, and 1867. This Article theorizes that federal bankruptcy specialization very likely occurred under the pre-1898 systems and marshals evidence to that effect, primarily focusing on the Bankruptcy Act of 1841 (the 1841 Act). That statute marked a critical turning point in federal bankruptcy law, shifting …

Disinterestedness In Bankruptcy Cases: Does It Really Matter?, Michelle M. Harner

BYU Law Review

The title of this Essay asks whether disinterestedness (of professionals) in bankruptcy cases really matters. Spoiler alert: Yes, it really does.

The Bankruptcy Judge And The Generalist Tradition, Alexander Gouzoules

BYU Law Review

The prevailing academic consensus is that bankruptcy judges are specialists presiding over specialized courts. This Article contends that this description is incomplete and, in some respects, inaccurate. Drawing on scholarly models of judicial specialization and historical surveys of the field, this Article contends that bankruptcy judges reflect a hybrid design choice: procedural specialization combined with substantive generalism. This model delivers many of the observed benefits of judicial specialization (including efficiency and technical competence) while preserving the cross-pollination of ideas and other benefits associated with the generalist tradition of American judging.

This Article also reflects on contemporary developments—most notably the rise …

Elite Bankruptcy, Laura N. Coordes

BYU Law Review

“The influence of bankruptcy lawyers over bankruptcy law seems almost inevitable.” —David Skeel

In Debt’s Dominion, David Skeel wrote that bankruptcy professionals have played a key role in shaping U.S. bankruptcy law. He predicted that these professionals would continue to shape the bankruptcy process long into the future. Today, we can see that Skeel’s prediction has come true. Although Congress has yet to overhaul the Bankruptcy Code, bankruptcy professionals have succeeded in their own form of overhaul by creating what this Essay calls “elite bankruptcy:” a type of bankruptcy accessible only to the rich and powerful. Elite bankruptcy is practiced …

Finding Debtor’S Counsel, Anthony Casey, Emma Lotts

BYU Law Review

In this Essay, we explore the question of how to assess the independence of debtor’s counsel in Chapter 11. The question has arisen in recent high-profile bankruptcy cases, attracting renewed attention from commentators. We examine these cases and revisit the unique role that debtor’s counsel serves.

From this analysis, a few guiding principles emerge for determining independence and managing conflicts that may arise. First, consistent with the rules outside of bankruptcy, sophisticated parties are capable of waiving conflicts and should be free to do so when their interests alone are affected by the conflict. Second, the possibility of conflicts—both real …

Bankruptcy Judging After Williamson, Vincent S.J. Buccola

BYU Law Review

This Essay asks how bankruptcy judges ought to orient their substantial, statutory discretion in business reorganization cases. The motivating observation is that bankruptcy law enacts a kind of forced integration of productive assets. To shed light on the contemporary problems that bankruptcy judges face, I thus look to two classic approaches to the economic theory of the firm—from Oliver Williamson and from Oliver Hart. I conclude that nonjudicial institutions have largely surmounted the problems to which their theories point, leaving a different, and probably narrower, set of issues to worry about. Bankruptcy judges who have a notion that their job …

Governing Debt’S Dominion: Then And Now, Here And Abroad, Brook E. Gotberg

BYU Law Review

Widely regarded as a landmark in bankruptcy scholarship, Professor David Skeel’s Debt’s Dominion charts the evolution of American corporate bankruptcy law and the forces that have governed it.1 In this seminal work, Skeel traces federal bankruptcy laws from their roots in the U.S. Constitution through their development over the twentieth century, detailing the political dynamics that shaped their scope and administration. Among those dynamics, he identifies the emergence of a specialized bankruptcy bar as one of the most influential forces shaping the law. As he explains, “bankruptcy professionals have spearheaded a relentless expansion of both the scope of the bankruptcy …

The Emperor’S New Clothes And § 502(B)’S Unmatured Interest Rule, Jacob M. Hansen

BYU Law Review

When it comes to claims for unmatured interest—most notoriously make-whole provisions—the text of the Bankruptcy Code does not necessarily say what everyone says it does. The common interpretation is that the Code requires courts to disallow all claims for unmatured interest except those involving an oversecured creditor. This Note presents an alternative reading that resolves conflicts within the Code, moves away from unreliable legislative history, and reconciles circuit splits on the enforceability of make-whole provisions and unmatured interest claims in general. As discussed in this Note, this alternative reading is the more accurate one—especially from a textualist perspective.

Due to …

The Erosion Of Judicial Discretion: Why Congress And The Court Should Curb Restrictions For Bankruptcy Judges, Mason Spedding

BYU Law Review

This Note argues that reducing bankruptcy courts’ discretionary powers is a policy mistake because broad-sweeping legislation cannot adequately account for every circumstance presented by debtors. Bankruptcy is a unique field of law that requires unique rules; unlike a purely uniform bankruptcy system that is inherently over- and under-inclusive, a system of judiciously broad discretionary powers enables bankruptcy courts to find the optimal solutions to new issues on a case-by-case basis. Rather than restricting the discretionary powers of bankruptcy judges, Congress should enact a set of standards for judges to consider when evaluating individual cases. Under this system, judges would be …

Ordinary Meaning As Last Resort: The Meaning Of "Undue Hardship" In Title Vii, James Phillips

BYU Law Review

Ordinary meaning reigns supreme in modern statutory interpretation. Yet that supremacy can cause an interpreter to miss specialized meaning. And the Supreme Court has never fully clarified when ordinary meaning must give way to specialized or technical meaning.

This Article attempts to provide doctrinal clarification as to when one should use ordinary as opposed to other meanings through putting the doctrinal pieces together in a full and coherent way. That doctrinal clarity leads to a methodological refinement: rather than the starting point, ordinary meaning is the ending point of statutory interpretation.

This Article applies this doctrine and methodology, as well …

The Market For Bankruptcy Courts: A Case For Regulation, Not Obliteration, Brook E. Gotberg

BYU Law Review

Large corporate debtors typically file for bankruptcy only after conducting a thorough analysis as to the most favorable venue for the case. Recent legislation has proposed to severely limit all corporate debtors’ ability to select bankruptcy venue. The messaging behind calls for venue reform is outwardly altruistic: it is said to be necessary to facilitate access to justice and to prevent abuse of the system. However, the push for venue reform is largely driven by professional envy and a distrust of specific judges based on unpopular high-profile rulings. Placing new constraints on the ability to choose venue will not achieve …

Undue Mental Hardship: A Case For Standardized Treatment Of Mental Health Issues In Student Loan Discharge Proceedings, Abigail Stone

BYU Law Review

No abstract provided.

Optimal Deterrence And The Preference Gap, Brook Gotberg

BYU Law Review

It is generally understood that the way to discourage particular behavior in individuals is to punish that behavior, on the theory that rational individuals seek to avoid punishment. Laws aimed at deterring behavior operate on the assumption that increasing the likelihood of punishment, the severity of punishment, or both, will decrease the behavior. The success of these laws is evaluated by how much the targeted behavior decreases. The law of preferential transfers—which punishes creditors who have been paid prior to a bankruptcy filing at the expense of other, unpaid creditors—has been defended on the grounds that it deters a race …

A Fresh Start To Bankruptcy Exemptions, Gary E. Sullivan

BYU Law Review

Bankruptcy has broadly failed to deliver “fresh starts” to debtors. Too often, debtors return to states of financial distress following bankruptcy. Although bankruptcy delivers a clean slate through the discharge of debts, the efficacy of a fresh start depends on a second factor: property exemptions. While discharge frees a debtor from her existing debts, property exemptions determine what property the debtor retains upon exiting bankruptcy. For many debtors, insufficient and suboptimal property exemption laws undermine fresh starts. In fact, under current bankruptcy law, each state can reject federal bankruptcy exemptions by opting out. Bankrupt debtors in “opt-out” states are forced …

Cross-Border Bankruptcy And The Cooperative Solution, Leah Barteld

Brigham Young University International Law & Management Review

No abstract provided.

Did Bad Debtors Influence The Tenth Circuit To Make An Unfortunate Decision? Making Reorganization More Difficult For Farmers In United States V. Dawes, Laura Jones

BYU Law Review

No abstract provided.

State Mandated Disability Insurance As Salve To The Consumer Bankruptcy Imbroglio, Alena Allen

BYU Law Review

From Main Street to Wall Street, Americans are hurting. In 2009, over 1.4 million families filed for bankruptcy. Researchers examining the causes of bankruptcy discovered that as many as sixty-two percent of all bankruptcies were precipitated by a medical crisis. Because many Americans are living paycheck to paycheck and lack disability insurance, when a medical crisis strikes, bank accounts are quickly depleted by the amalgam of high medical bills and lost wages. Disability insurance provides needed wage replacement when a worker is unable to work due to an illness or injury. This Article presents the case for statemandated disability insurance …

Student Loans In Bankruptcy And The "Undue Hardship" Exception: Who Should Foot The Bill?, Kyle L. Grant

BYU Law Review

No abstract provided.

Caveat Lessor: U.S. Aircraft Financiers Beware: 11 U.S.C. § 1110 Expectations May Not Be Met In Cross-Border Insolvencies, Kevin Gaunt

Brigham Young University International Law & Management Review

No abstract provided.

Brazil Enacts New Federal Bankruptcy Law, Gilberto Deon Correa, Ricardo C. Veirano

Brigham Young University International Law & Management Review

No abstract provided.

The Power Of The Bankruptcy Court To Enjoin Creditor Claims Against Nondebtor Parties In Light Of 11 U.S.C. § 524( E): In Re Dow Corning Corp., Jason J. Jardine

BYU Law Review

No abstract provided.

Regulating Or Reorganizing?: Depriving Federal Bankruptcy Courts Of Their Statuory Authority And Misapplying Fundamental Tenets Of Bankruptcy Law In In Re Cajun Electric Power Cooperative, Inc., Scott Kent Brown Ii

Brigham Young University Journal of Public Law

No abstract provided.

Greasing The Squeaky Wheels Of Justice: Designing The Bankruptcy Courts Of The Twenty-First Century, Christopher F. Carlton

Brigham Young University Journal of Public Law

No abstract provided.

It's Time For Means-Testing, Edith H. Jones, Todd J. Zywicki

BYU Law Review

No abstract provided.

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

BYU Law Review

No abstract provided.

Steinbach V. Hubbard: Somebody Call An Ambulance! The Fair Labor Standards Act And The Successor Liability Doctrine Have Been Seriously Injured!, Andrew P. Pickering

BYU Law Review

No abstract provided.

Dewsnup V. Timm: Judicial Sleight Of Hand In Statutory Construction Of The Bankruptcy Code, A. W. Bailey Iii

Brigham Young University Journal of Public Law

No abstract provided.