Bankruptcy Law Commons^™

Desperate Times And Desperate Measures: The Troubled State Of The Ordinary Course Of Business Defense—And What To Do About It, Lawrence Ponoroff

Washington Law Review

The ordinary course of business defense to the bankruptcy trustee's preference avoiding power has been controversial since its enactment in 1978. Burdened with a cryptic legislative history concerning its underlying goals, this preference exception has gone through multiple reinterpretations at the hands of Congress and the U.S. Supreme Court. In recent years, faced with a potentially expansive reading of the ordinary course defense that threatened to eclipse the rule, courts have used the "ordinary business terms" element of the defense to engraft an objective requirement that the party asserting the defense establish conformity of the challenged transfer with prevailing industry …

The Res Judicata Effect Of Bankruptcy Court Judgments: The Procedural And Constitutional Concerns, George A. Martinez

Faculty Journal Articles and Book Chapters

This article seeks to resolve the conflict in the circuits and argues that bankruptcy court judgments should not bar the assertion of non-core claims because to do so violates the basic principles of res judicata and threatens to undermine fundamental Article III values or create judicial inefficiencies in an effort to preserve such values.

Part II of the article provides the relevant Article III background, and identifies the key Article III cases: Northern Pipeline Construction Company v. Marathon Pipe Line Company and Commodity Futures Trading Commission v. Schor. This section explores the impact of Northern Pipeline which held that the …

The Immovable Object Versus The Irresistible Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

Reorganization A Comparative Study Of Reorganization In Denmark And In The United States, Poul Jagd Mogensen

LLM Theses and Essays

The purpose of this thesis is to analyze and discuss a list of specific problems in the current Danish system and in this analysis to examine how these problems are dealt with under the United States laws on reorganization. The thesis consists of five parts in addition to this Introduction. Part II is an introduction to the laws on reorganization in Denmark and in the United States. Part II also includes a brief introduction to out-of-court workouts as an alternative to reorganization under the bankruptcy laws. Part III provides statistical information on the number of reorganizations, the outcome of reorganizations, …

Repose Or Not? Informal Objections To Claims Of Exemptions After Taylor V. Freeland, Kenneth Decourcy Ferguson

Oklahoma Law Review

No abstract provided.

Bankruptcy In The Seventh Circuit: 1996, Douglass G. Boshkoff

Articles by Maurer Faculty

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 …

Heavy Duty Ii: Forming A Business Entity In The United States, Aleta Estreicher, Warren Green

Articles & Chapters

No abstract provided.

Romanian Bankruptcy Law: A Central European Example, Samuel Bufford

Faculty Scholarship

Romania now has one of the best-drafted bankruptcy laws in Central and Eastern Europe. The new Romanian bankruptcy law went into effect on August 26, 1995 and replaced the previous bankruptcy provisions in §695-987 of the Romanian Commercial Code, which was translated from the Italian Commercial Code of 1884 and enacted in 1887. While the commercial code fell into disuse during the Communist era, it was never repealed. After the Romanian revolution and the demise of Nicolae Ceauşescu at the end of 1989, the commercial code as well as the civil code remained good law and needed only to be …

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.

High-Tech Heroes, Virtual Villians, And Jacked-In Justice: Visions Of Law And Lawyers In Cyberpunk Science Fiction, Walter Effross

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Latent Efficiency Of Fraudulent Transfer Law, Marie T. Reilly

Faculty Scholarship

A creditor holding a claim against a debtor typically holds the right, subject to the debtor's default, to obtain a judgment against the debtor, liquidate the debtor's assets, and apply the proceeds against his claim. If the debtor's assets are insufficient to satisfy the creditor's claim, the creditor is usually, but not always, out of luck. Under limited circumstances, a creditor can reach property the debtor transferred to a third party and apply the value of such property to satisfy his claim. The creditor can undo the transfer and obtain the property or its value from the transferee as though …

The Truth About Secured Financing, Robert E. Scott

Faculty Scholarship

The debate over the social value of secured credit (and the appropriate priority for secured claims in bankruptcy) is entering its nineteenth year. Yet the continuing publication of succeeding generations of articles exploring the topic have yielded precious little in the way of an emerging scholarly consensus about the nature and function of secured credit. Put simply, we still do not have a theory, of finance that explains why firms sometimes (but not always) issue secured debt rather than unsecured debt or equity. Moreover (and perhaps because of the lack of any plausible general theory), we lack any persuasive empirical …

Foreword (The Sixth Annual Ernst C. Stiefel Symposium), Aleta Estreicher, Karen Gross

Articles & Chapters

No abstract provided.

Reconciling The Dormant Conflict: Crafting A Banking Exception To The Fraudulent Conveyance Provision Of The Bankruptcy Code For Bank Holding Company Asset Transfers, Cassandra Jones Havard

All Faculty Scholarship

Banking law and bankruptcy law clash. This is most evident when a bank holding company (parent company) becomes insolvent after it has made an asset transfer to its financially troubled bank subsidiary.

The Bankruptcy Code (Code) governs the insolvency proceedings of the bank holding company. Predictably, the parent company's trustee, appointed for the protection of all the creditors of the bankrupt entity, uses the fraudulent conveyance provision of the Code to have any asset transfers that were made to the bank subsidiary returned to the debtor's estate. The good faith exception to that provision will protect the asset transfer only …

Strategy And Force In The Liquidation Of Secured Debt, Ronald J. Mann

Faculty Scholarship

The question of why parties use secured debt is one of the most fundamental questions in commercial finance. The commonplace answer focuses on force: A grant of collateral to a lender enhances the lender's ability to collect its debt by enhancing the lender's ability to take possession of the collateral by force and sell it to satisfy the debt. That perspective draws considerable support from the design of the major legal institutions that support secured debt: Article 9 of the Uniform Commercial Code and the less uniform state laws regarding real estate mortgages.

Both of those institutions are designed solely …