Bankruptcy Law Commons^™

Bankruptcy Alchemy: Conversion Of Nothing To Golden Opportunity, A. Jay Cristol, Alexander Sarmiento Walden

St. Thomas Law Review

The United States Constitution empowered Congress to establish uniform bankruptcy law throughout the land. Instead, Congress allowed states to opt out of federal exemptions and permitted state law exemptions to be used. Consequently, a person residing in a debtor's haven such as Florida or Texas, may seek a fresh start with a hundred million dollars or more in exempt property. Meanwhile, other debtors who happen to reside in states which are not a debtor's Garden of Eden begin their fresh start with only five thousand dollars. This structure is grossly unfair and leads to the inequitable proposition that indeed, there …

Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang

LLM Theses and Essays

Bankruptcy is a judicial process purporting to regulate and adjust the financial relationships between debtors and creditors which come into a deadlock. In the modern United States, bankruptcy has become a concept pervading each corner of the social and economic lives. It touches mass tort victims, large corporations, small family business, government institutions, and even normal individuals. The appearance of the modern bankruptcy law of the United States is signaled by the enactment of the Bankruptcy Reform Act in 1978 which, together with later amendments, constitute the current Bankruptcy Code of the United States; but also help them strategically restructure …

A New Approach To Transnational Insolvencies, Robert K. Rasmussen

Michigan Journal of International Law

Part I of this article sets forth the general problems associated with transnational bankruptcies. Part II then shows that, from an efficiency standpoint, the optimal solution would be to allow firms to select, at the time of incorporation, which set of bankruptcy rules will govern in the event of financial distress. Part III examines the transnational bankruptcy problem under the assumption that each nation will continue to dictate the content of its bankruptcy laws. The accepted wisdom is that under this assumption, the best solution to transnational insolvencies is for all countries to adopt a rule whereby the home jurisdiction …

At The Intersection Of Bankruptcy And Divorce: Property Division Debts Under The Bankruptcy Reform Act Of 1994, Meredith J. Harbach

Law Faculty Publications

Bankruptcy has long had unique implications for divorce settlements and debts between ex-spouses. Historically, some marital debts owed from one ex-spouse to another were excepted from the traditional policy of "discharge. " Bankruptcy law distinguished between debts in the nature of alimony, maintenance, and support, which were protected from discharge, and property division debts, which were not. This distinction often had harsh consequences for creditor ex-spouses. Reeently, Congress enacted the Bankruptcy Reform Act of 1994, in part to ameliorate this problem. The amended Bankruptcy Code providP..s better protection for some property division debts. In this Note, Ms. Johnson argues that …

Turning The Microscope On Ourselves: Self-Assessment By Bankruptcy Lawyers Of Potential Conflicts Of Interest In Columbus, Ohio, Nancy B. Rapoport

Scholarly Works

This article attempts to devise an appropriate instrument to determine whether bankruptcy lawyers in Columbus, Ohio are able to identify potential conflicts of interest in bankruptcy cases. Although the article is unable to develop an appropriate instrument, it does discuss why the survey method is not appropriate for this type of study.

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.

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.

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 …

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

Articles & Chapters

No abstract provided.

A Case Of Misplaced Priorities: A Proposed Solution To Resolve The Apparent Conflict Between Sections 507 And 1113 Of The Bankruptcy Code, Steven Kropp

Cardozo Law Review

A single corporate bankruptcy is like a pebble thrown into a pond: the ripples keep extending out. Every bankruptcy filing has negative consequences for the corporation's creditors, including its workers. Indeed, a corporate bankruptcy may push many small creditors over the financial brink and even force some of them to file for bankruptcy.

Real Property In Bankruptcy: Some Special Considerations, G. Stanley Joslin

Washington and Lee Law Review

No abstract provided.

Protective Orders In The Bankruptcy Court: The Congressional Mandate Of Bankruptcy Code Section 107 And Its Constitutional Implications, Michelle M. Harner, William T. Bodoh

Faculty Scholarship

No abstract provided.

Ladies In Red: Learning From America's First Female Bankrupts, Marie Stefanini Newman

Elisabeth Haub School of Law Faculty Publications

Several years ago, the Honorable Joyce Bihary, a bankruptcy judge in Atlanta, Georgia, asked me3 why our country's first bankruptcy law specifically referred to debtors using “he” or “she” rather than a gender-neutral noun (such as “bankrupts”) or the male possessive pronoun “he.” Implicitly, she was also asking whether there were any women debtors under our early bankruptcy laws. Although I had read the Bankruptcy Act of 1800 more than once, I did not recollect its use of these gender-inclusive pronouns. Nor did I know why the Act employed them. Despite having given considerable thought to contemporary women in debt, …

Discourse And Discharge: Linguistic Analysis And Abuse Of The "Exemption By Declaration" Process In Bankruptcy, Kenneth D. Ferguson

Faculty Works

In Taylor v. Freeland & Kronz, the United States Supreme Court interpreted section 522(1) of the Bankruptcy Code according to its "plain meaning" and permitted a debtor to exempt $110,000 that was ineligible for exemption under substantive exemption law. The decision of the Court was premised on the fact that there was no timely objection to the claim of exemption. Although conceding that its decision might tempt debtors to claim exemptions in property ineligible for exemption on the chance that the trustee and creditors would fail to object in time, the Court cataloged a number of other remedies, including denial …

Avoiding Judicial Wrath: The Ten Commandments For Bankruptcy Practitioners, Nancy B. Rapoport

Scholarly Works

This article describes the top ten duties for bankruptcy lawyers. 1. Know the purpose(s) of the Bankruptcy Code. 2. Know the facts and the law. 3. Spend time crafting your arguments. 4. Don't lie (about conflicts of interest or about controlling law). 5. Be respectful (of other lawyers, of the system, and of other participants in the system). 6. Don't indulge your client's sleazy instincts. 7. Don't escalate a conflict unnecessarily. 8. Honor your calendar. 9. Keep your client informed. 10. Don't whine.

Chapter 11 Case Management And Delay Reduction: An Empirical Study, Samuel Bufford

Faculty Scholarship

Chapter 11 bankruptcy cases will drag on interminably if judges let them. The recent nine-month O.J. Simpson trial was short compared to the careers of some chapter 11 bankruptcy cases. The typical duration of chapter 11 cases can be reduced remarkably, however, through moderate judicial case management.

The data in this study show that relatively modest judicial case management can squeeze a substantial amount of delay out of chapter 11 cases within the context of the present bankruptcy law. The case management program in this study, applied to 81.2% of the chapter 11 case load, shortened by 24.1% the time …

Bankruptcy Law In European Countries Emerging From Communism: The Special Legal And Economic Challenges, Samuel Bufford

Faculty Scholarship

Bankruptcy law is developing rapidly in the countries of Central and Eastern Europe (CEE) that have recently escaped the domination of the Union of Soviet Socialist Republics (USSR). The communist governments fell in those countries that were separate from the USSR in 1989, and those countries that were a part of the USSR gained their independence and acquired new non-communist governments in 1989 (the Baltic states) and 1991 (Ukraine, Belarus, Moldova, and Russia). While many other areas of law that are basic to the development of a market economy need substantial development or revision, bankruptcy law is leading the way, …

The Manville Personal Injury Settlement Trust: Lessons For The Future, Frank J. Macchiarola

Cardozo Law Review

I will outline the story of the Manville Personal Injury Settlement Trust. While reading this tale, I urge the reader to ask the following questions: Was the Trust procedure effective? Could other procedures have better resolved the difficulties faced by asbestos victims? Could these other procedures fit into the legal framework, or does equity demand that a workable solution fall outside the legal structure? Could the system developed for the Trust be adapted for future mass torts, or did it simply result from compromises that would not have occurred save for the fact that there was no "bottomless pit" of …

Confirmation And Claims Trading, Frederick Tung

Faculty Scholarship

The buying and selling of claims against companies in financial distress is not a new phenomenon. In times of financial distress, liquidity has always commanded a profit. However, the late 1980s and early 1990s saw the first significant trading of claims under Chapter 11 of the Bankruptcy Code, our relatively new and novel system of corporate reorganization. Traditionally scorned by the financial establishment, distress investment came into vogue with the "megabankruptcies" that followed in the wake of the leveraged buyout boom of the 1980s. With its prospects for huge profits, claims trading in Chapter 11 became a Wall Street staple. …

Bankruptcy Redistributive Policies And The Limits Of The Judicial Process, Christopher W. Frost

Law Faculty Scholarly Articles

Business failure negatively affects a broad range of interests, yet the bankruptcy process directly protects only a small segment of interest-holders: the creditors. Some commentators argue for expansion of that protection to encompass redistributive norms and provide for the interests of non-investors in the failed business. The Bankruptcy Reform Act of 1994’s establishment of a national commission to study the bankruptcy process and its broader policy implications brings with it the opportunity to consider that redistributive argument and perhaps change the process to include the interests of non-investors under the reorganization umbrella. This Article responds to those who would have …

Fresh Start, False Start, Or Head Start?, Douglass Boshkoff

Indiana Law Journal

No abstract provided.

The Denial Of Future Tort Claims In In Re Piper Aircraft: Will The Court's Quick-Fix Solution Keep The Debtor Flying High Or Bring It Crashing Down?, Michelle M. Harner

Faculty Scholarship

No abstract provided.

New Capital For Bankruptcy Reorganizations: It's The Amount That Counts,, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Bankruptcy In Russia: The Evolution Of A Comprehensive Russian Bankruptcy Code, Paul Williams, Paul Wade

Scholarly Articles in Law Reviews & Journals

This article traces the development of the current bankruptcy code, with it origins in the early economic laws of perestroika; explains key provisions of the current law; and comments on the prospects for its effective implementation. The intent of this article is to provide a balanced understanding of the Russian bankruptcy code useful both to the study of the emergence of a market-based economy in Russia and as a bankruptcy primer for individuals or corporations conducting business in Russia.

Anti-Intellectualism, Pierre Schlag

Cardozo Law Review

There is a recurrent sameness to American legal thought. It is the sameness that comes from saying over and over again what the law is and saying it, of course, in a way that conforms with the law itself.

Harvey's Silence (Symposium: Letters To The Commission), James J. White

Articles

Harvey Miller has a reputation as a leading bankruptcy lawyer, and he deserves it. As his criticism shows, he understands why and how the Code changed the Act in 1978 and how the drafters of Chapter 11 erred. Better than all but a handful of other lawyers, Harvey Miller knows how to manipulate Chapter 11 to serve his clients' interests. He understands both the legal and practical intricacies of Chapter 11. Were I the CEO of a large and troubled company, I would hire Harvey Miller and gladly pay him twice what most other bankruptcy lawyers would charge. In short, …

Bankruptcy Reform, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Gene Humphreys, W. Thomas Bunch, Thomas L. Canary, David M. Cantor, Tracey N. Wise, Meritt S. Dietz, Phillip M. Moloney, Jeffrey W. Morris, John S. Egan, Sandra D. Freeburger, Randy D. Shaw

Continuing Legal Education Materials

Presentation materials from the Bankruptcy Reform Course held by UK/CLE in December 1994.

The New Rawlsian Theory Of Bankruptcy Ethics, Mary Josephine Newborn

Cardozo Law Review

Bankruptcy law was once considered a rather insular sub-specialty of commercial law. Bankruptcy scholars of an earlier time devoted their energies to drafting bankruptcy legislation, mastering its particulars, and systematizing the case law. When these scholars attempted to locate larger themes in bankruptcy, they labored with great deference to positive expressions of bankruptcy's purpose.