Bankruptcy Law Commons^™

Insolvency Counselling--Innovation Based On The Fourteenth Century, Carol Ann Curnock

Osgoode Hall Law Journal

In the fourteenth century, poverty (previously viewed as a virtue) was redefined by both church and state as illegal and immoral. This view persists in Canada today. The 1992 amendments to the Bankruptcy and Insolvency Act (BIA) included a provision that makes two counselling sessions mandatory for all persons going through bankruptcy. The author reviews The BIA Insolvency Counsellor's Qualification Course that was developed in support of this amendment, and concludes that it is not up to the task. The mandatory counselling presumes a bankrupt person's irresponsibility, addiction, and need for referral to community service agencies. However, these presumptions are …

Consumer Bankruptcies: A New Zealand Perspective, Paul Heath

Osgoode Hall Law Journal

In this article, the author considers the need for reform of New Zealand bankruptcy law to reflect recent socioeconomic developments in New Zealand. The author addresses several consumer bankruptcy issues, and considers them in the context of a number of competing public interest factors, such as the purpose of insolvency law, the role of the state in insolvency law, and the necessary balance to be struck between competing macroeconomic and microeconomic factors. The author suggests varying solutions-some educational, and some legal.

Consumer Bankruptcies: An Australian Perspective, Rosalind Mason

Osgoode Hall Law Journal

Over the past three decades, Australia has experienced a significant increase in the number of consumer bankruptcies. Until the early 1970s, the number of business and consumer bankruptcies was approximately equal, whereas in 1997 to 1998, for every business-related bankruptcy, there were approximately four consumer bankruptcies. This article gives a concise overview of insolvency laws in Australia, in particular the administrations applicable to individual debtors. Next, it briefly describes current Australian scholarship on consumer bankruptcy, before outlining pertinent bankruptcy and consumer credit regulation. Suggestions to decrease consumer bankruptcy numbers include extension of the "cooling-off period" for those intending to petition …

Consumer Bankruptcy In Comparison: Do We Cure A Market Failure Or A Social Problem, Johanna Niemi-Kiesilainen

Osgoode Hall Law Journal

The Continental European and Scandinavian bankruptcy laws did not have provisions enabling the discharge of debt until quite recently. While bankruptcy law did not specifically exclude consumer debtors, in the absence of discharge, consumer bankruptcy was meaningless and rare. After the deregulation of credit markets in the 1980s, many west European countries faced a huge increase in consumer debt problems. Several countries passed consumer debt adjustment laws during the late 1980s and 1990s. Unlike the North American consumer bankruptcy laws, the European laws attach moral attributes to the access to adjustment procedures, which require a mandatory payment plan, and offer …

Bankruptcy's Organizing Principle, David G. Carlson

Articles

No abstract provided.

From Jeans To Genes: The Evolving Nature Of Property Of The Estate, A. Mechele Dickerson

Faculty Publications

No abstract provided.

A Primer On 11 U.S.C. § 328(A) And Its Use In Alternative Billing Methods In Bankruptcy, Robert J. Landry Iii, James R. Higdon

Mercer Law Review

Compensation of attorneys and professionals in the bankruptcy field is one of the most written about areas in bankruptcy law. Professionals, both familiar and unfamiliar with the mandates of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure, are having an increasingly difficult time obtaining approval for the envisioned compensation. Problems generally do not arise for debtors' attorneys in the run-of-the-mill Chapter 7 case or Chapter 13 case. Flat fees are charged in most of these cases, and applications to employ debtors' attorneys are not filed. Therefore, retention orders are not entered. However, outside the run-of-the-mill Chapter 7 or 13 …

Making Sense Out Of Bankruptcy Courts' Recharacterization Of Claims: Why Not Use § 510(C) Equitable Subordination?, Matthew Nozemack

Washington and Lee Law Review

No abstract provided.

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

BYU Law Review

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.

Failure And Forgiveness: A Review, James J. White

Reviews

In Failure and Forgiveness, Professor Karen Gross has written two books about bankruptcy. The first book, found in the first nine chapters, describes the bankruptcy law, the bankruptcy system, its operation, and the policies that support that law and system. This first book is written for a lay audience, and it is an admirable exposition of the law and policy. The second book, chapters ten to fifteen, contains several proposals for change in the bankruptcy law and states arguments to justify those proposals. The second book shows Professor Gross to be a kindly socialist, deeply suspicious of free markets and …

Taking Future Claims Seriously: Future Claims And Successor Liability In Bankruptcy, Frederick Tung

Faculty Scholarship

Treatment of contingent tort liabilities when a business is sold presents a particular challenge for corporate and bankruptcy law. In this article, I focus on the precarious position of future tort claimants-those who may be harmed by a manufacturer's defective product after the manufacturer has sold its business and disappeared. By the time the future claimant's injury occurs, she may be left with no means of recovery. While the article focuses primarily on the bankruptcy sale context, a discussion of the nonbankruptcy context provides important background.

In the article, I make two claims. First, I address recent proposals suggesting that …

Comsumer Bankruptcy's New Clothes: An Empirical Study Of Discharge And Debt Collection In Chapter 13, Scott F. Norberg

Faculty Publications

Consumer bankruptcy filings hit another record high in 1998, with nearly 1.4 million consumers filing for bankruptcy relief. This trend sparked a debate in Congress about means-testing chapter 7 bankruptcy filings. Proponents of reform argued that it would curtail fraud and abuse. Opponents believed that consumer debt was swamping income growth, and that the deregulation of the consumer credit market had led to overgenerous lending and hence to more bankruptcies. This is an empirical study of whether filers for chapter 13 bankruptcy cases are abusing the system, or whether debtors are truly being swamped by debt in excess of their …

Thou Canst Not Fly High With Borrowed Wings: Airline Finance And Bankruptcy Code Section 1110, 8 Geo. Mason L. Rev. 41 (1999), Jason Kilborn

UIC Law Open Access Faculty Scholarship

No abstract provided.

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

Cooperation In International Bankruptcy: A Post-Universalist Approach, Lynn M. Lopucki

UF Law Faculty Publications

This article examines the several competing systems proposed for international cooperation in the bankruptcy cases of multinational companies and concludes that a cooperative form of territoriality would work best. Universalism, the system that currently dominates the scholarship, diplomacy, and jurisprudence of international bankruptcy, holds that the courts of the multinational company's "home country" should have worldwide jurisdiction and apply its own law to the core issues of the case. Universalism is unworkable because it would require that countries permit foreign law and courts to govern wholly domestic relationships and because the of "home countries" of multinational companies are so ephemeral …

The Irrefutable Logic Of Judgment Proofing: A Reply To Professor Schwarcz, Lynn M. Lopucki

UF Law Faculty Publications

In The Inherent Irrationality of Judgment Proofing, Professor Steven L. Schwarcz raises interesting new arguments against my death of liability thesis. The sheer number of those arguments makes it impossible for me to respond to all of them. The core of Schwarcz's insight is to divide judgment proofing structures into those negotiated at arm's length and those constructed within a single corporate group. I consider his arguments regarding the first set of structures in Part I and the second set in Part II.

Bankruptcy Contracting Revised: A Reply To Alan Schwartz's New Model, Lynn M. Lopucki

UF Law Faculty Publications

In Bankruptcy Contracting Reviewed, Alan Schwartz purports to restate and defend the bankruptcy contracting model he presented in A Contract Theory Approach to Business Bankruptcy. What he in fact does is abandon key assumptions of the original model and substitute new ones. The resulting new model is driven by reputational constraints neither present nor possible in the original model. Yet it works no better than the original. The linchpin of Schwartz's response is his insistence that his original model contained an unstated assumption prohibiting debtor firms from lying. In the context of Schwartz's model, the effect of the new assumption …

Election Of Chapter 7 Trustees Under The Bankruptcy Code , Darrell Dunham

Cleveland State Law Review

This article offers an analysis of the election of chapter 7 trustees. Part II the prior statutory scheme and the legislative history supporting the present statute. Part III examines the present statute, discussing the statutory requirements for the election of a chapter 7 trustee. Part IV discusses election procedures. The bankruptcy rules mandate a prescribed set of procedures for elections, including procedures for disputing the results of an election. These rules and the cases applying them are discussed in Part IV. In Part V, appellate reviewed is examined. This section analyzes questions such as standing and appealable orders. Finally, in …

Moral Bankruptcy: Modeling Appropriate Attorney Behavior In Bankruptcy Cases, Nancy B. Rapoport

Scholarly Works

This essay discusses how important it is for lawyers, especially senior lawyers, to model appropriate behavior so that the newest lawyers learn how best to behave professionally.

Embracing Descent: The Bankruptcy Of A Business Paradigm For Conceptualizing And Regulating The Legal Profession, Jeffrey W. Stempel

Scholarly Works

Lawyers are said to travel in packs, or at least pairs, and in the popular parlance are often compared to hoards of locusts, herds of cattle, or unruly mobs. However, at least for purposes of assessing concerns with professionalism currently surrounding the bar and the public, whether attorneys are more or less social than other human animals does not matter. My point is simply that lawyers are social beings; like other human beings in social and occupational groups, lawyers behave largely in accordance with group norms, in much the same way peer pressure led Julian English toward juvenile delinquency in …

Bankruptcy Takings, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

The Takings Clause is a vital consideration in determining the treatment of secured creditors in bankruptcy. This Article will explain why the Takings Clause is relevant and why scholars engaged in the debate over secured credit must consider the constitutionality of their proposals in light of the takings issue. In Part I of the Article, I explore the ways in which current bankruptcy law provides protection and gives deference to property rights. I also discuss certain proposals that would reduce the protection given to secured parties. Part II provides an overview of takings law and discusses some of the cases …

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …

The Evolution Of The Fresh-Start Policy In Israeli Bankruptcy Law, Rafael Efrat

Vanderbilt Journal of Transnational Law

A fresh-start policy in bankruptcy provides the honest but financially troubled individual some form of financial relief in an attempt to provide him with an opportunity to productively reintegrate into the economy and society. While some countries today provide broad financial relief to individuals who resort to bankruptcy protection, many countries have retained a largely limited as well as punitive fresh-start policy.

This Article explores the evolution of the fresh-start policy in Israel. While it briefly examines the attitudes and practices adopted towards financially troubled individuals historically in the Jewish tradition, it focuses on tracing those attitudes and practices to …

Ask The Professor: Give-Ups After Griffin — What Changes Are Needed Now?, Ronald Filler

Articles & Chapters

No abstract provided.

Exemttion Impairing Liens Under Bankruptcy Code Section 522(F): One Step Forward And One Step Back, Lawrence Ponoroff

University of Colorado Law Review

No abstract provided.

Flight And Fugitive Issues In Bankruptcy Fraud Cases, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Optimal Timing And Legal Decisionmaking: The Case Of The Liquidation Decision In Bankruptcy, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Until the firm is sold or a plan of reorganization is confirmed, Chapter 11 entrusts a judge with the decision of whether to keep a firm as a going concern or to shut it down. The judge revisits this liquidation decision multiple times. The key is to make the correct decision at the optimal time. This paper models this decision as the exercise of a real option and shows that it depends critically on particular types of information about the firm and its industry. Liquidations take place too soon if we merely compare the liquidation value of the assets with …

Thin Red Line: An Analysis Of The Role Of Legal Assistants In The Chapter 13 Bankruptcy Process, David G. Epstein

Law Faculty Publications

The delegation by a lawyer of substantial amounts of non-ministerial functions to legal assistants raises various unauthorized practice of law issues. This Article provides an overview of the Chapter 13 bankruptcy process and state law rules regarding the unauthorized practice of law. We then discus~ these rules in the context of a typical Chapter 13 debtor practice.

If You Don't Have Anything Good To Say..., Peter A. Alces

Faculty Publications

No abstract provided.