Bankruptcy Law Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Survival Of The Trademark License: In Re Tempnology And Contract Rejection In Bankruptcy, Avery Minor

Boston College Law Review

On January 12, 2018, the United States Court of Appeals for the First Circuit held, in In re Tempnology, that forcing specific performance of a trademark license after a contract rejection in a bankruptcy case would be contrary to the plain-language of Section 365(n) of the Bankruptcy Code and conflict with the goal of providing debtors with a “fresh start.” In so doing, the First Circuit joined the Fourth Circuit in a split with the Seventh Circuit, which has characterized a contract rejection as a breach in the context of non-bankruptcy law, therefore not extinguishing any trademark license rights ...

Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben

Chicago-Kent Law Review

Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.

This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right ...

Puerto Rico Debt Restructuring: Origins Of A Constitutional And Humanitarian Crisis, Elizabeth Whiting

University of Miami Inter-American Law Review

No abstract provided.

Beyond Bankruptcy: Resolution As A Macroprudential Regulatory Tool, Steven L. Schwarcz

Notre Dame Law Review

Postcrisis efforts to extend bankruptcy-resolution techniques to protect the stability of the financial system have been insufficient, in part because regulators have been conflating bankruptcy’s traditional goals of resolving troubled firms individually with the need to resolve critical elements of the financial system to ensure its continued operation as a “system.” This requires resolving troubled firms collectively, as well as resolving securities-trading markets and the infrastructure that serves to facilitate that trading. The Article examines how to design that regulation, differentiating three approaches: reactive regulation, which comprises variations on traditional bankruptcy; proactive regulation, which consists of preplanned enhancements that ...

Flotsam, Financing And Flotation: Is Canada “Resolution Ready” For Insurance Company Insolvency?, Janis P. Sarra

Faculty Publications

Insurance represents almost 2 per cent of Canada’s gross domestic product (GDP), yet there is little public policy discussion regarding the viability of the companies that insure Canadians or about the policyholder protection and resolution regime that underpins the provision of these services. As new products and technology develop, and as the complexity of multinational insurance enterprises increases, new risks pose challenges for Canada’s oversight and policyholder protection regimes. This article provides an overview of the insolvency regime for insurers in Canada, focusing primarily on the federal regime as the exemplar of how Canadian regulators and the insurance ...

Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Notre Dame Law Review

The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities ...

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial ...

The Suitability Of South Africa's Business Rescue Procedure In The Reorganization Of Small-To-Medium-Sized Enterprises: Lessons From Chapter 11 Of The United States Bankruptcy Code., Mikovhe Maphiri

Michigan Business & Entrepreneurial Law Review

South African small- to medium-sized enterprises (“SMEs”) are the bread and butter of our economy. Providing much-needed employment and developing the skills of historically disadvantaged persons formally and informally are some of the most significant benefits of SMEs in a developing country such as South Africa. However, despite these significant contributions to the socioeconomic development of the country, SMEs generally have the lowest survival rates in the world as compared to large enterprises globally, resulting in high rates of business failure and the loss of jobs which these entities create. The Companies Act of 2008 replaces the previous judicial management ...

Fiduciary Duties Of Directors Of Insolvent Corporations: A Comparative Perspective, Alessandra Zanardo

Chicago-Kent Law Review

Over the last two decades, in many jurisdictions great emphasis has been placed on directors’ fiduciary duties when a corporation is insolvent or in the amorphous “zone of insolvency”; notably, to investigate whether the directors should continue to promote the best interests of the corporation for the benefits of its shareholders, or whether their duties shift to creditors.

The resolution of this ubiquitous issue will help to answer the following questions: Do creditors have standing to pursue claims for breach of fiduciary duties in the insolvency scenario? And, if they do, is it direct or derivative standing?

This Article will ...

A Canadian Lens On Third Party Litigation Funding In The American Bankruptcy Context, Stephanie Ben-Ishai, Emily Uza

Chicago-Kent Law Review

This Article offers two major recommendations to expand the use of third party litigation funding (“TPLF”) into the U.S. insolvency context. As seen in the Canadian context, courts have accepted the use of litigation funding agreements fitting within certain parameters. If U.S. courts follow suit, friction against the implementation of TPLF can be mitigated. Alternatively, regulation may occur through legislative and regulatory models to govern and set out precisely what types of arrangements are permitted. Involving entities such as the SEC may expedite the acceptance of TPLF, but special attention is necessary not to intermingle notions of fiduciaries ...

When Borders Dissolve, Laura N. Coordes

Chicago-Kent Law Review

Scholars have long sought to apply principles from U.S. bankruptcy law to sovereign debt restructurings. Chapter 9 of the U.S. Bankruptcy Code, used to adjust the debts of municipalities, has been a particular source of inspiration, and several proposals currently exist to adapt chapter 9 to address the challenges of sovereign debt restructuring.

The difficulties of applying chapter 9 in practice, however, have demonstrated the limitations of a one-size-fits-all solution to municipal distress. Similarly, attempts to adapt chapter 9 to apply uniformly to a broad range of sovereign states may be ineffective. A recurring problem lies in the ...

Modularity In Cross-Border Insolvency, Andrew B. Dawson

Chicago-Kent Law Review

This Article proposes a framework for thinking about the design structure of the Model Law on Cross-Border Insolvency. The Model Law has been successful by many metrics; however, it has faced various implementation challenges. As leading scholar Professor Jay Westbrook has noted, thinking about these problems requires thinking about the Model Law as a system. To understand the system, it is necessary to understand its architecture, and I argue that this architecture is best understood as reflecting a modular design structure, i.e., one that divides complex systems into a hierarchical system of self-contained components. Modularity has provided insights into ...

The Avoidance Of Pre-Bankruptcy Transactions: An Economic And Comparative Approach, Aurelio Gurrea-Martínez

Chicago-Kent Law Review

Most insolvency jurisdictions provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. These mechanisms, generally known as claw-back actions or avoidance provisions, may fulfil several economic goals. First, they act as an ex post alignment of incentives between factually insolvent debtors and their creditors, since the latter become the residual claimants of an insolvent firm, but they do not have any control over the debtor’s assets while the company is not yet subject to a bankruptcy procedure. Thus, avoidance powers may prevent or, at least, reverse opportunistic behaviors faced ...

Infinite Jest: The Otiose Quest For Completeness In Validating Insolvency Judgments, Bruce A. Markell

Chicago-Kent Law Review

Universalism in cross-border bankruptcies strives to reduce waste, and harmonize restructuring and recoveries. Universalism’s avatar is UNCITRAL’s 1997 Model Law on Cross-Border Insolvencies (Model Law). Underlying the Model Law, however, is an implicit assumption that court orders entered in the proceeding where the debtor’s center of main interests is located will be respected in all other states in which the debtor has assets or operations. That assumption may have been incorrect, as shown by cases such as the United Kingdom’s Rubin v. Eurofinance, S.A.

This Article looks at UNCITRAL’s reaction to Rubin: its new ...

Layering, Conversion, And Drifting: A Comparative Analysis Of Path Dependent Change In Consumer Insolvency Systems, Megan Mcdermott

Chicago-Kent Law Review

The past twenty-five years have been marked by major developments in consumer insolvency systems around the world. The threshold challenge for comparative scholars is to keep up with the changes occurring in individual countries, as a necessary—but preliminary—step toward broader comparisons of the historical, social, and institutional forces in consumer bankruptcy. In order for deeper work to take place, though, the field needs consensus on what factors are most useful to analyze. Moreover, the dynamic environment of consumer insolvency requires a framework for analysis that is flexible and adaptable enough to provide insights notwithstanding the rapid changes in ...

Market Organisations And Institutions In America And England: Valuation In Corporate Bankruptcy, Sarah Paterson

Chicago-Kent Law Review

Courts in England and the United States have traditionally adopted different approaches to the question of valuation in debt restructuring cases. In England, courts have tended to determine whether to approve the allocation of equity in a debt restructuring by reference to the amounts creditors would have received if no debt restructuring had been agreed. The company has typically argued that if no debt restructuring had been agreed either the business or the assets would have been sold. Typically, some evidence of exposure of the business and assets to the market will be submitted to identify the value which would ...

The Ammanati Affair: Seven Centuries Old, And Not Feeling The Age, Eugenio Vaccari

Chicago-Kent Law Review

The enactments of the UNCITRAL Model Law on Cross-Border Insolvency and the European Regulations on insolvency proceedings have promoted an incremental approach towards substantive harmonization. This strategy has not remained unquestioned. One of the major criticisms is that such a course of actions overlooks the nature of the issues currently raised in multi-national and cross-disciplinary bankruptcy procedures.

This Article focuses on the Anglo/American bankruptcy tradition. It adopts a doctrinal methodology to question the conclusion that “collectivity” is and should be a procedural, objective, and secondary notion in light of two case studies. It suggests that in the context of ...

Milking The Estate, David R. Hague

West Virginia Law Review

No abstract provided.

The Power Struggle: Shareholder Rights In Brazilian Corporate Bankruptcy, Jessica Nowak

University of Miami International and Comparative Law Review

No abstract provided.