Bankruptcy Law Commons^™

The Hypocrisy Of The Wizards—A Proposal To Correct Incentives In Higher Education Loan Financing, Caden Benedict

School of Public Policy Capstones

This paper explores the origins of the student loan debt crisis and proposes tying university incentives to graduates' repayment plans and disclosing median earnings for degrees before students apply. Specifically, while there are numerous factors explaining why the price of education has increased dramatically since the 1970s, this paper proposes solutions that will specifically target university moral hazards by requiring universities fund: (1) the current subsidies to federal student loan repayments under income-driven plans as the House of Representatives intended before the Senate removed "risk-sharing," and (2) bankruptcy law discharge amounts. Moreover, requiring universities to disclose the median earnings of …

Corporate Governance As Bloodsport, Jeremy Kidd, George A. Mocsary

Pepperdine Law Review

The modern Environmental, Social, and Governance (ESG) movement promotes diversion of corporate assets from shareholders to “stakeholders.” This is done in the name of a corporate duty to society. But “successful” ESG efforts threaten the success of the corporate form by inviting rent-seeking. This conflict between ESG principles and established theories and norms of corporate law is difficult to resolve because corporate law lacks the tools needed to understand the type of collective decision-making that occurs in the corporate setting. This Article is the first to apply public choice economics—the economic study of collective decision-making—to corporate decision-making to identify the …

The Bankruptcy Revolving Door, Belisa Pang

Northwestern University Law Review

The American consumer bankruptcy system is a costly regime with profound societal implications. Between 2008 and 2023, consumers filed 13.8 million bankruptcy cases across the ninety-four federal bankruptcy districts in the United States, generating over $4 billion in court filing fees alone. When accounting for attorney fees, trustee expenses, creditor costs, and broader economic externalities—such as increased interest rates borne by other consumers—the total financial impact easily reaches tens of billions, if not hundreds of billions, of dollars.

Against that backdrop, this study uncovers a startling phenomenon: nearly 46% of the consumers who filed bankruptcy in 2023 were repeat filers, …

Texas Two-Stepping With Bad Faith: Dismissing Solvent Corporate Debtor Filings Under Chapter 11, Megan Russelman

St. John's Law Review

(Excerpt)

A majority of corporate bankruptcies occur within the scope of a Chapter 11 reorganization, as the process allows a debtor to retain control over most business operations and act in place of the trustee. Most frequently, a debtor will file for Chapter 11 when they are facing debts they are unable or unwilling to repay when due. However, given the absence of an insolvency requirement in the Bankruptcy Code, some corporations utilize a Chapter 11 bankruptcy filing to handle their debts even if they are not entirely insolvent. Many corporations that have taken advantage of solvent debtor filings have …

Defining The Undefined: Reimagining The “Undue Hardship” Standard In Light Of Its Harmonious Interpretation, C. Sam D’Alba

St. John's Law Review

(Excerpt)

Part I of this Note provides background on the student loan crisis and the history of the nondischargeability of student loan debt. Part II of this Note examines the DOJ’s Guidance on litigating “undue hardship,” the intra-circuit criticism of the Brunner framework, and the need for harmony in understanding “undue hardship” in light of other authority governing student loans. Part III of this Note argues for a shift in the analysis of “undue hardship” based on practical guidance from the DOJ, the DOE, and the courts. This shift focuses on the subjectivities of each bankruptcy case and the need …

What Start-Up Lawyers Should Know About Bankruptcy, Christopher D. Hampson

UF Law Faculty Publications

Bankruptcy has long been regarded as a gloomy area of law, one that fits uneasily with the heady optimism usually associated with start-ups. At the same time, start-up lawyers need to understand how downside scenarios will play out, both inside and outside bankruptcy court, in order to advise their clients appropriately. That is especially true for social enterprises – where the decisions throughout a company’s life affect its ability to stick to its mission during times of financial distress. In a forthcoming book chapter, I map out the various elements that start-up lawyers need to consider.

Bankrupt Crypto Organizations, Kara Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

This Article provides the first comprehensive analysis of the intersection between decentralized autonomous organizations (DAOs) and American bankruptcy law. DAOs are blockchain-based entities that enable individuals to pursue common goals using decentralized decision-making and automated governance. Since their recent emergence, DAOs have proliferated dramatically—with over 20,000 organizations managing over $20 billion in assets and engaging in activities ranging from investment management to real estate and even attempting to purchase historic copies of the U.S. Constitution. Yet like any other organization, DAOs can fail, creating an urgent need to understand what happens when unstoppable code meets immovable bankruptcy law.

Our investigation …

No More Monkeying Around: The Eleventh Circuit Deepens The Circuit Split On Corporate Discharge Under 11 U.S.C. § 1192, Cole Wright

Mercer Law Review

For small businesses facing financial disarray, the federal bankruptcy system offers a way to bounce back and get a second chance. However, not all mistakes can be forgiven, and some debts must be paid. As Congress adapts and expands the Bankruptcy Code, interpretive issues can arise, making it difficult for creditors and debtors to understand their options and outlook. In 2019, Congress attempted to create a more flexible and forgiving option for small businesses when they enacted the Small Business Reorganization Act (“SBRA”), which created Subchapter V of Chapter 11 of the Bankruptcy code. This subchapter has given rise to …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Navigating Compliance In A Geopolitical Era: The Case Of Chinese Multinationals In The United States, Ji Li

Seattle University Law Review

This Article examines how Chinese multinational companies (MNCs) approach compliance in the United States amid deepening geo-political rivalry and intensified regulatory scrutiny. Drawing on original survey data, this Article maps variations in compliance structures, staffing, and governance mechanisms across Chinese firms and identifies key determinants such as industry-specific regulatory intensity, listing status, and organizational imprinting from headquarters. The analysis employs a dual institutional framework to explain how compliance systems emerge from the interplay between host-state regulatory demands and home-state institutional legacies, producing hybrid structures that blend local adaptation with headquarters-driven replication. Findings reveal that while certain compliance features—such as committee …

The Field Of International Business Transactions Law, Kathleen Claussen

Seattle University Law Review

This Article studies the evolution of the scholarly subfield referred to as the law of “international business transactions” (IBT). It reviews data on academic articles, courses, textbooks and other signifiers of the growth of this research area. Beginning around 1960, scholars began to use the term “international business transactions” and by the 1980s, several law schools were offering a course by that title. A handful of dedicated textbooks soon followed. These data reflect a gradual increase in research on the topic of IBT, particularly in the United States, but also considerable diversity of subject matters covered by those works. The …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Seattle University Law Review

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into the software …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …

A Comparative Study Of Chinese And American Approaches To Shaping International Outer Space Law And Norms, Ariel G. Silverman

Seattle University Law Review

This article explores convergences and divergencies in the United States and PRC’s responses to the stalemate in the United Nations over the future of outer space resource governance. I do so by systematically analyzing these leading space-faring nations’ policy-positions and tactics deployed to shape norms around three substantive areas of outer space resource governance: rights of ownership and scope of utilization of space resources, mechanization of the “benefits sharing” principle, and the rights and responsibilities of the private sector. I theorize that these leading space-faring nations have adopted divergent approaches due to their differing historical relationships with international law and …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Seattle University Law Review

For the past three decades, a transnational reparations movement has unfolded across Northeast Asia. Hundreds of victims—assisted by attorneys, academics, and activists—seek remedies from Japan for various atrocities committed during World War II, colonialism, and other historical injustices.  They press their claims in street protests, legislative hearings, dramatic performances, and other fora.  The “comfort women” are the best known of these claimants; their global redress campaign ex-tends from noisy protests outside of Japan’s embassy in Seoul, to mute statues in raucous boroughs of Berlin.  More obscure, though larger in number, were the roughly one million Koreans who performed forced labor …

Table Of Contents

Seattle University Law Review

Table of Contents

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Shannon Sahani

Seattle University Law Review

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Product Nationality And Corporate Identity, Trang (Mae) Nguyen

Seattle University Law Review

Global supply chains have long depended on a deceptively technical device: the attribution of a “nationality” to goods. A trade law principle, rules of origin assign products an “economic passport” that governs how they are treated at the border, including what markets they may enter and which tariff rates apply. In recent years, however, product nationality has taken on a new and far more ambitious role. As U.S. trade policy increasingly intersects with national security and human rights policy, policymakers rely on nationality-based measures to police supply chain linkages, curb geopolitical issues, and discipline firms for their links to forced …