Bankruptcy Law Commons^™

Enforcing Corporate Fiduciary Duties In Bankruptcy, Kelli A. Alces

Scholarly Publications

No abstract provided.

Corporate Social Accountability Standards In The Global Supply Chain: Resistance, Reconsideration, And Resolution In China, Li-Wen Lin

Cardozo Journal of International and Comparative Law

This Article provides a view on corporate social accountability standards from a Chinese perspective, a slightly different angle from that of legal scholars in the United States. The legal literature in the United States typically only focuses on the importance and effectiveness of corporate social accountability standards to regulate the conduct of multinational companies in the era of globalization. However, the views of the outsourced companies in the developing countries, on which the multinational companies impose the standards, have seldom received attention. This Article tries to fill this void by examining the situation in China. As shown in this Article, …

Unjust Enrichment And Creditors, Emily Sherwin

Cornell Law Faculty Publications

The constructive trust remedy plays an important role in bankruptcy because it places restitution claimants in a position of priority over creditors. According to traditional rules governing constructive trusts, restitution claimants who can identify particular assets in the debtor's hands as products of an unjust enrichment recover in full, to the exclusion of other unsecured creditors. The draft Restatement (Third) of Restitution and Unjust Enrichment endorses this outcome with only minor qualifications.

The supposed basis for a constructive trust is unjust enrichment: courts grant the remedy to prevent the defendant from profiting at the claimant's expense. In bankruptcy, the parties …

Looking Forward While Looking Back: Using Debtors' Post-Petition Financial Changes To Find Bankruptcy Abuse After Bapcpa, Justin H. Rucki

William & Mary Law Review

No abstract provided.

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

Michigan Law Review

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy that improvements in the market for large public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This Article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000 through 2004 with the recoveries in bankruptcy reorganizations during the same period. Controlling for company …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

"Stringent execution" may be the watch phrase for implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). The bankruptcy bar has lived with BAPCPA for well over a year, and if one common thread arises in the case law, it is judges dissatisfaction with what may kindly be referred to as "drafting flaws." Many courts have highlighted these flaws-and other perceived inadequacies in BAPCPA-by ruthlessly enforcing the statute's plain language. This has already led to the enactment of one amendment by Congress, as well as criticism from some of its members. Whether further amendments will follow …

Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz

Osgoode Hall Law Journal

The conventional wisdom is that the poor are not heavy users of the insolvency system, because creditors are unwilling to take risks on the poor and because many of the poor are judgment-proof. However, credit is now widely available across the spectrum of income groups. In addition, poverty is often a temporary state for many Canadians; therefore, being judgment-proof is likewise temporary. Some of those who are poor at any point in time are in fact in need of bankruptcy protection. They have debts that they are unable to pay and little likelihood of being able to repay in the …

Managers’ Fiduciary Duties In Financially Distressed Corporations: Chaos In Delaware (And Elsewhere), Rutheford B. Campbell Jr., Christopher W. Frost

Law Faculty Scholarly Articles

The inherent conflict between creditors and shareholders has long occupied courts and commentators interested in corporate governance. Creditors holding fixed claims to the corporation's assets generally prefer corporate decision making that minimizes the risk of firm failure. Shareholders, in contrast, have a greater appetite for risk, because, as residual owners, they reap the rewards of firm success while sharing the risk of loss with creditors.

Traditionally, this conflict is mediated by a governance structure that imposes a fiduciary duty on the corporation's managers-its officers and directors-to maximize the value of the shareholders' interests in the firm. In this traditional view, …

Moving Toward A Federal Law Of Corporate Governance In Bankruptcy, Kelli A. Alces

Scholarly Publications

No abstract provided.

The Retrogressive Flaw Of Chapter 15 Of The Bankruptcy Code: A Lesson From Maritime Law, John J. Chung

Law Faculty Scholarship

No abstract provided.

Direct Appeals From Bankruptcy Courts To The Courts Of Appeals: The Experience After Two Years, David George

The Journal of Appellate Practice and Process

No abstract provided.

Predatory Structured Finance, Christopher L. Peterson

Cardozo Law Review

No abstract provided.

Means Testing: The Failed Bankruptcy Revolution Of 2005, David G. Carlson

Articles

The monumental bankruptcy amendments of 2005 made means testing the very center of the attempt to restore discipline to consumer spending. Yet, one year of practical experiences shows that either the means test either promotes bankruptcy abuse, or it is meanginless, depending on whether courts think the mechanical means test pre-empts pre-2005 law, or whether it merely supplements it. This article explores the means test in details, shows why it is a flop, and what the courts have made of it so far.

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

Of Cabbages And Cabotage: The Case For Opening Up The U.S. Airline Industry To International Competition, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

This article attempts to show that the economic advantages of free trade in the airline industry is no less than other industries, but also that the reasons posited for the rejection of free trade do not stand up to comprehensive analysis. Proposed herein is the adoption of "cabotage," defined by the Standard Dictionary of the English language as "air transport of passengers and goods within the same national territory. ' The definition adopted by International Civil Aviation Organization (ICAO) at the Chicago Convention is, "Each state shall have the right to refuse permission to the aircraft of other contracting states …

Reinstatement V. Cramdown: Do Secured Creditors Win Or Lose?, Heather Lennox, Michelle M. Harner, Eric R. Goodman

Faculty Scholarship

No abstract provided.

Asset-Backed Securitization In China, Yuwa Wei

Richmond Journal of Global Law & Business

No abstract provided.

The Law Of Unintended Consequences, Margaret Howard

Scholarly Articles

My purpose is to talk about the 2005 Amendments and how things are going with the new provisions. But where do you start, with a bad law? We could start with the enactment process, but that's old news now. And besides,you've already heard the line: "Some members of Congress could not be bought; for everyone else there was MasterCard." We could talk about the policy choices, and the 2005 Amendments clearly represent a shift in that respect--perhaps in the category of "seismic" or "cataclysmic."

Your Licensor Has A License To Kill, And It May Be Yours: Why The Ninth Circuit Should Resist Bankruptcy Law That Threatens Intellectual Property Licensing Rights, Jon Minear

Seattle University Law Review

In recent opinions, the U.S. Court of Appeals for the Seventh Circuit has interpreted the Bankruptcy Code ("the Code") in a manner that makes inaction or ignorance perilous for IP licensees whose licensor declares bankruptcy. Although Congress amended the Code to protect a licensee from losing technology rights in these situations, the Seventh Circuit has narrowly interpreted a strikingly similar bankruptcy provision involving real-estate leases and, in doing so, has cast doubt on the efficacy of the licensee protections found in section 365(n) of the Code. In addition, this circuit has broadly interpreted another Code section dealing with title-clearing sales …

Casenote: The Emerald Casino Fiasco, 40 J. Marshall L. Rev. 1305 (2007), Cory Aronovitz, Jon Topolewski

UIC Law Review

No abstract provided.

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel L. Bufford

Northwestern Journal of International Law & Business

The European Court of Justice ("E.C.J.") issued a ruling on May 2, 2006 in the Eurofood case, finding that the commencement of an insolvency case for Eurofood in Ireland gave the Irish court priority under E.U. law over a similar insolvency case commenced shortly thereafter in Italy. The E.C.J.'s ruling responded to the Supreme Court of Ireland's referral to the E.C.J. of five questions of E.U. law based on the E.U. Regulation on Insolvency Proceedings ("E.U. Regulation"). The Irish Supreme Court had referred these questions to the E.C.J. preliminary to deciding a pending appeal of the Dublin High Court's decision …

Representing Victims Of Domestic Violence In Property Distribution Proceedings After The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Elizabeth Brandt

Articles

No abstract provided.

The Citx Decision: Has The Tort Of Deepening Insolvency Gone Bankrupt, Ian T. Mahoney

Villanova Law Review (1956 - )

No abstract provided.

Directors' Duties In Failing Firms, Kelli A. Alces, Larry E. Ribstein

Scholarly Publications

Despite many cases with seemingly contrary dicta, corporate directors of failing firms do not have special duties to creditors. This follows from the nature of fiduciary duties and the business judgment rule. Under the business judgment rule, the directors have broad discretion to decide what to do and in whose interests to act. There is some authority for a limited creditor right to sue on behalf of the corporation to enforce this duty. However, any such right does not make the duty one owed to creditors. The creditors individually may sue the corporation for breach of specific contractual, tort, and …

Relief In The Boardroom: How The Third Circuit's Citx Decision Weakened Deepening Insolvency As An Independent Cause Of Action, Brya M. Keilson

Villanova Law Review (1956 - )

No abstract provided.

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - Presentation Of Much Ado About Little? Directors' Fiduciary Duties In The Vicinity Of Insolvency, Stephen M. Bainbridge

Journal of Business & Technology Law

No abstract provided.

Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors Of Troubled Companies - Comparative & International Perspectives, Andres Engert, Reid Feldman, Pamela L.J. Huff, Donna W. Mckenzie-Skene

Journal of Business & Technology Law

No abstract provided.

Much Ado About Little? Directors' Fiduciary Duties In The Vicinity Of Insolvency, Stephen M. Bainbridge

Journal of Business & Technology Law

No abstract provided.