Bankruptcy Law Commons^™

Family Values And The Bankruptcy Code: A Proposal To Eliminate Bankruptcy Benefits Awarded On The Basis Of Marital Status, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Lifestyles Of The Not-So-Rich Or Famous: The Role Of Choice And Sacrifice In Bankruptcy, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Of Grinches, Alchemy And Disinterestedness: The Commission's Magically Disappearing Conflicts Of Interest, G. Ray Warner

Faculty Publications

(Excerpt)

Christmas 1997 has come and gone. Santa, in the form of the National Bankruptcy Review Commission, delivered lots of shiny new toys to the children of bankruptcyland. A few got only switches and lumps of coal, and all of the children wondered whether their new toys would really work.

Mary Megafirm had wanted only one thing from Santa. Over the years, she had grown bigger and bigger, and by now she had pretty much outgrown the old professional qualification rules. She had never much liked that nasty and bothersome "disinterestedness" standard, but in recent years the disinterestedness standard was …

Of Hotel Revenues, Rents, And Formalism In The Bankruptcy Courts: Implications For Reforming Commercial Real Estate Finance, R. Wilson Freyermuth

Faculty Publications

This article is intended to continue the dialogue begun by the proposed Restatement and has two distinct goals in this effort. Parts I through III argue that the position of the Restatement drafters is both legally and functionally sound and that bankruptcy courts should embrace and apply the proposed Restatement in administering distressed real estate developments. Part I reviews the reasoning articulated in the hotel bankruptcy cases, demonstrating how courts have applied the provisions of the Bankruptcy Code and state law in a formalistic manner to extinguish the hotel mortgagee's lien upon postpetition room revenues. Part II rejects the analysis …

Rethinking Professor Westbrook's Two Thoughts About Insider Preferences, Peter A. Alces

Faculty Publications

No abstract provided.

Clearer Conceptions Of Insider Preferences, Peter A. Alces

Faculty Publications

No abstract provided.

Why Have Chapter 11 Bankruptcies Failed So Miserably? A Reappraisal Of Congressional Attempts To Protect A Corporation's Net Operating Losses After Bankruptcy, Michelle A. Cecil

Faculty Publications

This Article will first outline the history of judicial and statutory limitations on the free transferability of net operating losses, highlighting congressional attempts to afford more favorable treatment to troubled corporations reorganizing in Title 11 proceedings. It will then examine the operation of section 382 of the 1986 Code, again focusing on those provisions designed to assist in the successful reorganization of these corporations, and will demonstrate the wholesale inability of these provisions to preserve the net operating losses of troubled corporations. Finally, the Article will propose an amendment to section 382 that would increase the likelihood that corporations will …

Legislation: Congressional Initiatives: The Forgotten Constraint: Bankruptcy Legislation And The Uniformity Clause, Jonathan Van Patten

Faculty Publications

No abstract provided.

Including Retirement Benefits In A Debtor's Bankruptcy Estate: A Proposal For Harmonizing Erisa And The Bankruptcy Code, Michelle A. Cecil

Faculty Publications

This Article first examines the conflicting policies of ERISA and the Bankruptcy Code. It then explores how the various courts have attempted to reconcile these policies when faced with the issue of whether a debtor's interest in retirement plan assets should be available for distribution to creditors in bankruptcy. In analyzing the relevant case law, the Article examines cases addressing the exclusion issue (whether pension plans should be excluded from the bankruptcy estate entirely). It also evaluates cases addressing the exemption issue (whether plan assets, once included in the bankruptcy estate, can be exempted out of the estate by the …

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 …

Editor's Notes, Peter A. Alces

Faculty Publications

No abstract provided.

Preemption Of State Law Notice Provisions Governing The Recovery Of Attorneys' Fees By Section 506(B) Of The Bankruptcy Code, R. Wilson Freyermuth

Faculty Publications

This note provides a framework for courts and attorneys faced with the issue whether section 506(b) preempts state law notice provisions. The note studies the language and legislative history of section 506(b), pointing out the inconsistencies and ambiguities that make it difficult to determine congressional intent. The note then surveys the various rationales advanced by the lower courts in resolving this issue. Using the recent Fourth Circuit case of Unsecured Creditors' Committee v. Walter E. Heller & Co. to illustrate several of these rationales, the note suggests that a more consistent approach to this issue is needed. After examining the …

Avoidability Of Intercorporate Guarantees Under Sections 548(A)(2) And 544(B) Of The Bankruptcy Code, Scott F. Norberg

Faculty Publications

No abstract provided.

Installment Land Contracts--The National Scene Revisited, Dale A. Whitman, Grant S. Nelson

Faculty Publications

In 1977 we published an article in this Review that discussed the legal aspects of the installment land contract. The installment contract was then, and continues to be, widely used as a device for seller financing of real estate. In our judgment, and increasingly in the judgment of the courts, that is a mistake. Few situations, if any, would lead an informed lawyer to advise his client to use an installment contract rather than its financing cousin, the note secured by a mortgage or deed of trust. Since the prior article was published, the courts have continued to place impediments …

Collective Bargaining In Chapter 11 And Beyond, B. Glenn George

Faculty Publications

No abstract provided.

Unexpired Leases In Bankruptcy: Rights Of The Affected Mortgagee, Peter A. Alces

Faculty Publications

No abstract provided.

The Efficacy Of Guaranty Contracts In Sophisticated Commercial Transactions, Peter A. Alces

Faculty Publications

Even though contracts of guaranty are not subject to uniform standards of interpretation throughout the states, both case law and statutory development have tended to evidence a strong sympathy for the guarantor. In spite of this trend, Professor Alces suggests that creditors' counsel can, through careful drafting, do much to assure the enforceability of the guaranty contract. A scrupulously structured guaranty contract, one that anticipates possible defenses to liability in explicit terms, may well be upheld, even in cases in which guarantors occupied weak negotiating positions vis-a-vis creditors. Moreover, the attack on the guaranty as a fraudulent conveyance under section …

The Bankruptcy Discharge: Toward A Fresher Start, Doug R. Rendleman

Faculty Publications

No abstract provided.

Beyond Contempt: Obligors To Injunctions, Doug R. Rendleman

Faculty Publications

No abstract provided.