Bankruptcy Law Commons^™

Table Of Contents

Seattle University Law Review

Table of Contents

The Taxing Ambiguity: Defining "Return" In Bankruptcy Dischargeability Cases, Elizabeth Tsai

Cleveland State Law Review

This Note examines the circuit split over the dischargeability of tax debts tied to late-filed returns, which has led to inconsistent bankruptcy outcomes and inequitable treatment of debtors across jurisdictions. Some courts, adopting the strict “one-day-late” rule, hold that any tax return filed even a single day past its deadline is not a “return” for bankruptcy discharge purposes, permanently barring relief. Others apply a more flexible standard grounded in the Beard test, considering a debtor’s good-faith compliance efforts. This inconsistency contradicts the fresh start principle of bankruptcy law, disproportionately harms low-income debtors, and fails to serve the government’s tax collection …

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 …

Volume 14 Masthead

American Indian Law Journal

No abstract provided.

Table Of Contents

American Indian Law Journal

No abstract provided.

The Bankruptcy Judge And The Generalist Tradition, Alexander Gouzoules

Faculty Publications

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 …

Kedudukan Hukum Eks-Kreditor Pasca Debt To Equity Swap Yang Dihomologasi Dalam Pkpu Kedua Dan Kepailitan Debitor Akibat Pembatalan Perdamaian, Reza Rahmawati

Jurnal Hukum & Pembangunan

Debt to Equity Swap (DES) under a composition plan in Suspension of Debt Payment Obligations (PKPU) proceedings constitutes a restructuring mechanism that transforms the legal status of a Creditor into that of a shareholder upon homologation. Legal issues arise when The Debtor subsequently enters a Second PKPU due to newly incurred debts or is declared bankrupt following the annulment of the composition, while Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment does not expressly regulate the legal consequences of a DES under such circumstances. This normative legal research aims to analyze the legal standing and legal …

Does Bidder Complexity Affect Market Reactions To M&A Decisions?, Rajib Chowdhury, John A. Doukas

Finance Faculty Publications

We examine whether and how bidder complexity influences investor reactions to merger and acquisition (M&A) announcements. Using an established measure of complexity, we find a significant positive relationship between acquiring firm complexity and cumulative abnormal returns (CAR). This suggests that investors perceive more complex firms as capable and value-enhancing participants in M&A activities. The association is particularly strong for bidders with high operating risk, greater R&D intensity, and larger firm size. We also find that complex bidders tend to offer higher takeover premiums. Overall, our study contributes to the literature by demonstrating that bidder complexity is an important determinant of …

A Bankruptcy Resuscitation: Addressing Private Equity’S Role In Healthcare Insolvencies, Peyton K. Perry

Emory Bankruptcy Developments Journal

The healthcare sector, traditionally driven by a commitment to patient well-being and quality of care, has increasingly been influenced by financialization, particularly through private equity investments. This Comment explores the impact of private equity on healthcare companies, especially those facing bankruptcy by highlighting how private equity’s profit-driven motives often compromise patient care and lead to financial distress for healthcare providers and companies.

Specifically, this Comment examines the historical context of healthcare as a healing profession and the ethical implications of its financialization. It then delves into the mechanics of private equity as a business model and utilizes recent case studies …

Introduction: A Tribute To Jack Butler, Jackson A. Brown

Emory Bankruptcy Developments Journal

No abstract provided.

Priority Treatment Of Fraud Claims In Bankruptcy, John P. Hunt

Emory Bankruptcy Developments Journal

No abstract provided.

Bankruptcy’S Blind Spot: An Examination Of How The System Turns Its Back On Mentally Ill Debtors, Ashley Deady

Emory Bankruptcy Developments Journal

No abstract provided.

Fresh Start Or False Promise? Addressing Black Student Loan Debt Through Bankruptcy, Adji Ostin

Emory Bankruptcy Developments Journal

No abstract provided.

Reevaluating Consumer Debt Enforcement: Why We Don’T Need Courts To Enforce Consumer Debt Contracts, Adam Toobin

Fordham Journal of Corporate & Financial Law

Enforcing consumer debt contracts against low- and middle-income borrowers, rather than making consumer debt markets work better, is inefficient and exacerbates consumer protection concerns. While consumer debt litigation—and enforcement of consumer debt contracts through wage and bank account garnishment—may have once strengthened nascent consumer debt markets, consumer credit scoring now effectively structures consumers’ incentives to repay their debt obligations. Debt enforcement is not necessary to encourage consumers to repay their debts and tends to drive borrowers into bankruptcy. Debt enforcement also undermines efforts to provide consumer protection in these markets by raising the stakes of any debt contract—where any default …

Directors’ Fiduciary Duties In The Likelihood Of Insolvency, Miguel Martínez Muñoz

Fordham Journal of Corporate & Financial Law

The purpose of this Essay is to analyze the Directive and its interaction with American law in order to establish some considerations in coordinating the provisions of insolvency and corporate law. This Essay focuses on the configuration of a new framework of directors’ liability in which, among other aspects, the identity of the parties subject to the duties is expressly defined, as well as the application of the rules regulating the protection of corporate discretion as well as the application of the rules regulating the business judgment rule. In turn, the Essay puts forward some proposals for a solution to …

Cashman Equip. Corp., Inc. V. Cardi Corp., Inc., 335 A.3d 430 (R.I. 2025)., India E. Awe

Roger Williams University Law Review

No abstract provided.

Bankruptcy Preemption Of Malicious Prosecution Actions: Cogan V. Trabucco, Alyssa Knecht

Cardozo Law Review de•novo

This Note examines jurisdiction over state torts that arise during a bankruptcy proceeding. Recently, the Ninth Circuit permitted a collateral attack on a state court judgment regarding malicious prosecution in Cogan v. Trabucco. The Ninth Circuit held that federal courts have exclusive jurisdiction over malicious prosecution actions and that abuse of process state torts are completely preempted by federal law. This decision left the debtor without any redress and divested state courts of jurisdiction over cases under its own tort law. This Note argues the Ninth Circuit, in Cogan, erroneously made “related to” jurisdiction exclusive and incorrectly held that federal …

Exporting Bankruptcy: China’S Jurisdictional Gambit Under Chapter 15, Jason Jia-Xi Wu, Chentuo Zhu

Emory Bankruptcy Developments Journal

China’s distressed corporate giants are increasingly turning to U.S. bankruptcy courts. Instead of seeking discharge under China’s own bankruptcy system, a growing wave of Chinese megafirms—often state-backed and systemically important—are pursuing cross-border insolvency relief under chapter 15 of the U.S. Bankruptcy Code. This trend raises urgent questions: Why are China’s largest companies reaching across the Pacific to restructure? And how are their filings reshaping entrenched U.S. bankruptcy practices in ways that diverge from other foreign debtors?

At the heart of this phenomenon is a calculated, multi-jurisdictional forum shopping strategy. Chinese debtors typically begin by incorporating a shell …

Opening Remarks Disruptor, Innovator, Philanthropist: John William Butler, Jr. (A/K/A Jack Butler), Michelle Harner

Emory Bankruptcy Developments Journal

No abstract provided.

Super-Efficient Breach In Bankruptcy: Recalibrating Remedies For Contract Rejection Damages, Ishaq Kundawala

Emory Bankruptcy Developments Journal

Contract law rests on a simple but powerful premise: when a party breaches, the law protects the injured party’s expectation interest, placing them, as nearly as possible, in the position they would have occupied had the contract been performed. This principle underlies the theory of efficient breach, which tolerates economically rational breaches so long as the non-breaching party is fully compensated. But in bankruptcy, this foundation often collapses. Under section 365 of the Bankruptcy Code, a debtor may reject an executory contract, with the law treating that rejection as a prepetition breach and relegating the counterparty’s claim to general unsecured …

Insurance And Chapter 11 Bankruptcy: Is The Insurance Neutrality Doctrine Dead?, Mikaela Deleon

Emory Bankruptcy Developments Journal

Insurers have traditionally been denied “party in interest” status under the Bankruptcy Code due to the longstanding insurance neutrality doctrine. The insurance neutrality doctrine prevents insurers from challenging a chapter 11 bankruptcy plan as a section 1109(b) “party in interest” if the plan does not increase the insurance company’s liability from pre-bankruptcy levels. If none of their rights or obligations were impacted by the plan, insurance companies were previously left without a means to challenge a proposed reorganization plan. As a result, insurance companies providing liability insurance to corporations stricken with mass tort lawsuits ran the risk of becoming the …

Asbestos 2.0: A Looming Disaster At The Intersection Of Pfas Litigation And The Texas Two-Step––Even After Purdue Pharma, Tyler Sheridan

Emory Bankruptcy Developments Journal

Companies that have manufactured, processed, or sold per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” face mounting financial pressure as the number of claims against them skyrocket. With billions of dollars already allocated to settlements and new lawsuits continuously filed, liable corporations may utilize the Texas Two-Step to minimize financial risk. The maneuver would enable solvent companies to isolate PFAS liability and discard it into bankruptcy, potentially delaying and capping payouts for claimants in the process. Third-party releases have survived Purdue, leaving the forum’s ability to permanently resolve mass tort liability intact. Moreover, escalating litigation may prompt …