Contracts Commons^™

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Kenneth Ayotte

This article provides a framework for analyzing side agreements in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by one party to remain silent – to waive some procedural right they would otherwise have under the Bankruptcy Code – at potentially crucial points in the reorganization process. Using simplified examples, we show that side agreements create benefits in some instances, but parties to a side agreement may have incentive to contract for specific performance or excessive stipulated damages that impose negative externalities on non-parties to the agreement. A promise …

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law...unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses and misuses of the …

Statutory Liens And The Bankruptcy Act: U.C.C. § 2-702 And Section 67(C), Robert Green

Robert A. Green

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Peter A. Holland

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law . . . unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses …

Liquid Assets: A Coasian Economic Analysis Of Oregon's Allocation Of Conserved Water Program, Richard A. Grisel

Richard A Grisel

Diversions for residential, agricultural, recreational, commercial, industrial, and other beneficial uses have had the effect of removing water from rivers and tributaries throughout the western U.S. Another, more recent, competing use is ecological, demonstrated by the legal recognition of instream beneficial uses in some jurisdictions. As awareness of the progressively acute need for reallocation has increased in the arid West, so has interest in water markets and other mechanisms to facilitate transfers across beneficial uses. However, governments and water users face a legacy prior appropriation system that prohibits instream beneficial uses, encourages maximal diversion, stifles water right fungibility, and generally …

Relative Responsibility In Afdc: Problems Raised By The Noleo Approach—“If At First You Don't Succeed . . .”, Margaret Howard

Margaret Howard

No abstract provided.

Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan

Donald J. Kochan

Recording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down. Leading up to the crisis, as securitization became vogue and the housing boom blurred …

Gaming The System: Bio-Economics, Game Theory, & Fisheries Management, Richard A. Grisel

Richard A Grisel

This paper argues that game theory provides powerful, effective new tools to analyze externalities that occur in the context of strategic, multi-party, interactive decision-making. I will attempt to treat this as a non-technical paper and avoid the complex mathematics better left to economists and mathematicians. Instead, a more achievable goal is to illustrate how high-seas open-access fishing is virtually identical to a game situation, treat the fundamentals of game theory, and demonstrate that game theoretic analyses are well-suited and fruitful for designing effective policy responses to fisheries management, particularly with respect to the straddling stocks problem. Indeed, one seminal fisheries …

Injunctions Against The Opening Of Gas Storage Facilities, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

A recent decision from the Mexican Supreme Court, clarified the issued as to whether State Courts may issued injunctions against the opening of gas storage facilities related to the gas pipelines for the distribution of natural gas.

Interdictos En Contra De Contruccion De Ductos De Distribucion De Gas Natural., Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

Se analiza la más reciente jurisprudencia de la SCJN, referente a los interdictos en contra de construcción de ductos para la distribución de gas natural.

The Story Of Ymps ("Yield Maintenance Premiums") In Bankruptcy, Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

An Alternative Universe To §1113 Of The Bankruptcy Code: The Mediation Of American Airlines And Its Pension Obligations, Max Schatzow

Max Schatzow

This paper explores mandatory mediation as an alternative method to the current §1113 framework, where judges determine the fate of collective bargaining agreements. Through dialogue, this paper will explore one potential outcome to the ongoing dispute between the various labor unions with collective bargaining agreements with American Airlines.

Reforming Sovereign Lending: Modern Initiatives In Historical Context, W. Mark C. Weidemaier

W. Mark C. Weidemaier

An Alternative Universe To §1113 Of The Bankruptcy Code: The Mediation Of American Airlines And Its Pension Obligations, Max L. Schatzow

Max Schatzow

This paper explores mandatory mediation as an alternative method to the current §1113 framework, where judges determine the fate of collective bargaining agreements. Through dialogue, this paper will explore one potential outcome to the ongoing dispute between the various labor unions with collective bargaining agreements with American Airlines.

Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel

Richard A Grisel

The development of geothermal resources has been greatly hampered by the legal and institutional framework governing geothermal energy resources. This framework has been plagued by conflicting mining and water laws, anachronistic common law systems of property rights, problematic legal classifications of geothermal resources, and jurisdictional variances from state to state and between states and the Federal government. These issues have combined to significantly hinder the development of what will be a vital resource for our nation’s future energy needs.

This thesis concerns one way to address the suboptimal development of geothermal energy resources. Using the Federal acquisition of exclusive airspace …

The Myth Of Negotiability, James Steven Rogers

James S. Rogers

No abstract provided.

Recuperação De Empresas Viáveis Em Dificuldades: Prevenção E Preservação De Valor [Restructuring Distressed Viable Business Entities: Prevention And Value Preservation], Bruno Ferreira

Bruno Ferreira

No abstract provided.

'No Look' Attorneys' Fees And The Attorneys Who Are Looking: An Empirical Analysis Of Presumptively Approved Attorneys' Fees In Ch. 13 Bankruptcies And A Proposal For Reform, Bruce Price

Bruce M Price

This article presents original empirical research on the issue of “No Look” or presumptively approved attorneys’ fees in consumer Chapter 13 bankruptcy cases. 11 U.S.C. section 330 requires court approval of attorneys’ fees. Courts are frequently unable to address the volume of applications if individual review were required. As such, many courts have set presumptively approved attorneys’ fees in which the attorneys’ fees for routine services are approved administratively. Circuits are split as to whether this practice can be rationalized with existing case law, the Bankruptcy Code or legislative intent. The study examines the practices of each Bankruptcy Court and …

Indeterminacy And The Law Of Restitution, James S. Rogers

James S. Rogers

No abstract provided.

Falling Short: Has The Sec’S Quest To Control Market Manipulation And Abusive Short-Selling Come To An End Or Has It Really Just Begun?, Richard Ramirez

Richard E. Ramirez, J.D. | CFCS

No abstract provided.

Halting, Altering And Agreeing, Bruce M. Price

Bruce M Price

Utilizing Felstiner, et al.'s Naming, Blaming and Claiming as a conceptual framework, I argue that the Chapter 11 bankruptcy process represents a dispute transformation mechanism. Disputes are transformed through a series of stages I call Halting, Altering and Agreeing. This transformative dispute process can be conceptualized as a form of disputing that accomplishes many of the goals of ADR, while avoiding the ideological and substantive critiques outlined by Harrington, Engle Merry, Yngvesson, and others. Finally, the development of this dispute mechanism is historically situated in light of the transition to the modern form of contract law and welfare state considerations …

Faculty Colloquia, Spring 2009 Series, Alfred Brophy, Dennis Crouch, Zanita Fenton, Mitu Gulati, Scott Hershovitz, Christine Hurt, Joseph Miller, Juliet Moringiello, Robert Rhee, Robert Steinbuch, Brian Tamanaha

Robert Rhee

No abstract provided.

Making Debtor Remedies More Effective, Melissa B. Jacoby

Melissa B. Jacoby

Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other …

Empirical And Policy Perspectives On Consumer Bankruptcy Law In The United States (In Endeudamiento Del Consumidor E Insolvencia Familiar), Melissa Jacoby

Melissa B. Jacoby

This chapter, published in Spanish, offers new empirical data from the U.S. on consumer bankruptcy filers from the 2007 Consumer Bankruptcy Project, an evaluation of the two-chapter bankruptcy system, and proposals for structural reform.

Contracts: Essay And Multiple Choice Questions And Answers. (Editor), Bruce Price

Bruce M Price

No abstract provided.

The Debt Financing Of Parenthood, Melissa B. Jacoby

Melissa B. Jacoby

In this contribution to the symposium Show Me the Money: Making Markets in Forbidden Exchange, I explore an under-appreciated participant in the assisted reproduction and adoption industries: consumer lenders. Through fertility clinics and other service providers, financial institutions market and distribute loans specifically to finance acquisition of treatments, drugs, and human eggs. Adoption foundations and agencies advertise for-profit loans to intended parents, while small foundations offer adoption loans that appear to be low-cost financially but may condition loan approval on intended parent characteristics such as religious observance, marital status, sexual orientation, and adherence to traditional gender roles. After discussing how …

Home Mortgage Problems Through The Lens Of Bankruptcy, Melissa B. Jacoby

Melissa B. Jacoby

Based on a lecture at a predatory lending conference at Loyola University New Orleans School of Law, this brief paper discusses the 2007 Consumer Bankruptcy Project and how the empirical study of bankruptcy law informs our understanding of the intersection of mortgages and homeownership with financial distress, and whether bankruptcy can provide meaningful redress.

Cyber Crimes And Effectiveness Of Laws In India To Control Them, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Imagining Territories: Space, Place, And The Anticity, Jonathan Yovel

Jonathan Yovel

This essay explores the concept of "Territory" in some of its cultural forms, as well as looks into cultural and linguistic conditions for territories-talk. Initially, it engages territory as a pre-political representation and explores its formal relation to space and to place. It defines territory as the paradigmatic non-place and contrasts it with the concept of the city (in fact, an anticity), especially as reflected in renaissance and early modern art/architecture, with examples from Schedel, Bellini, Breugel and others, as well as from contemporary graphic works (Moebius, Qual, Nowak).

Moving from the cultural to the political, territories are then explored …