Bankruptcy Law Commons^™

Chimanga Changa Limited V Export Trading Limited (Scz Appeal No. 3 Of 2022), Ntemena Mwanamwambwa, Chenela Mwale-Simbotwe

SAIPAR Case Review

The Supreme Court’s decision in Chimanga Changa has set a clear and resounding tone as well as a sound precedent in the Jurisprudence of Zambian Corporate Insolvency law, specifically in relation to how voluntary business rescue proceedings should be commenced, when they commence and most importantly that an application objecting to the commencement of business rescue proceedings pursuant to section 22(1), does not answer to the definition of a legal proceeding for purposes of effecting a moratorium within the confines of section 25 of the Act.

Aggregation And Abuse: Mass Torts In Bankruptcy, Edward J. Janger

Faculty Scholarship

No abstract provided.

Dissonance And Distress In Bankruptcy And Mass Torts, Andrew D. Bradt, Zachary D. Clopton, D. Theodore Rave

Fordham Law Review

This Essay reviews the highly successful Fordham Law Review symposium entitled Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy, held in 2022. The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both. The symposium was successful because it brought these groups into conversation at a time when high-profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in. The symposium was also successful—and distressing, in our view—because it highlighted disturbing trends in complex litigation.

This Essay makes …

Due Process Alignment In Mass Restructurings, Sergio Campos, Samir D. Parikh

Fordham Law Review

Mass tort defendants have recently begun exiting multidistrict litigation by filing for bankruptcy. This new strategy ushers defendants into a far more hospitable forum that offers accelerated resolution of all state and federal claims held by both current and future victims. Bankruptcy’s structural, procedural, and substantive benefits also provide defendants with unique optionality.

Bankruptcy’s resolution promise is alluring, but the process relies on a very large assumption: that future victims can be compelled to relinquish property rights in their cause of action against the corporate defendant and others without consent or notice. Bankruptcy builds an entire resolution structure on the …

The Constitutional Problem Of Nondebtor Releases In Bankruptcy, Adam J. Levitin

Fordham Law Review

In recent years, nondebtor releases have become a common feature of big-case Chapter 11 bankruptcy practice. Nondebtor releases involve the release of creditor claims against third-party nondebtors pursuant to a bankruptcy plan confirmation order. Some nondebtor releases are consensual, meaning that they are done with the assent of the releasing creditor, but some are not.

This Essay argues that all nonconsensual nondebtor releases in bankruptcy are unconstitutional. The constitutional infirmities of nondebtor releases are layered: all non debtor releases—consensual or nonconsensual—are outside the scope of Congress’s authority under an original understanding of the Bankruptcy Clause; all nonconsensual nondebtor releases are …

The New Mass Torts Bargain, Samir D. Parikh

Fordham Law Review

Mass torts create a unique scale of harm and liabilities. Corporate tortfeasors are desperate to settle claims but condition settlement on the resolution of substantially all claims at a known price—commonly referred to as a global settlement. Without this, corporate tortfeasors are willing to continue with protracted and fragmented litigation across jurisdictions. Global settlements can be elusive in these cases. Mass torts are oftentimes characterized by heterogeneous victim groups that include both current victims and future victims—individuals whose harm has not yet manifested and may not do so for years. Despite this incongruence, future-victim claims must be aggregated as part …

The 'Merge' Did Not Fix Ethereum, Hilary J. Allen

Popular Media

The Ethereum blockchain that facilitates much of the crypto world last month finally accomplished the long-promised and oft-delayed “Merge”, a technical switch in the way it works.

Scarlet-Lettered Bankruptcy: A Public Benefit Proposal For Mass Tort Villains, Samir D. Parikh

Northwestern University Law Review

Financially distressed companies often seek refuge in federal bankruptcy court to auction valuable assets and pay creditor claims. Mass tort defendants—including 3M, Johnson & Johnson, and Purdue Pharma—introduce new complexities to customary Chapter 11 dynamics. Many mass tort defendants engage in malfeasance that inflicts widespread harm. These debtors fuel public scorn and earn a scarlet letter that can destroy value for an otherwise profitable business. Scarlet-lettered companies could file for bankruptcy and quickly sell their assets to fund victims’ settlement trusts. This Article argues, however, that this traditional resolution option would eviscerate victim recoveries. Harsh public scrutiny has diminished the …

Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules

Faculty Publications

This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.

This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate …

Generalized Creditors And Particularized Creditors: Against A Unified Theory Of Standing In Bankruptcy, David G. Carlson, Jeanne L. Schroeder

Articles

Courts have struggled toward a unified theory to explain when the trustee has exclusive jurisdiction to sue a third party for harms done to a bankrupt debtor, and when creditors have exclusive jurisdiction to sue the third party. Courts have proclaimed that when every creditor can sue the third party, then none of them can, and the right belongs solely to the trustee. Creditor rights are “generalized.” If only a proper subset of creditors can sue the third party, then the trustee is not able to subrogate to the subset. Such creditors are “particularized.” This paper proclaims the test a …

Whose Debt Is It Anyway?, Luís C. Calderón Gómez

Articles

Every year, companies issue hundreds of billions of dollars of debt with a feature carrying unclear tax consequences. So do individuals, who frequently tie their most significant financial asset to this type of instrument. Yet this instrument is not an exotic or innovative financial derivative, but is simple vanilla debt with two or more borrowers, or “co-obligated debt”. Co-obligated debt poses a conceptual problem for the law because it does not fit neatly into the simple and dyadic legal framework underlying the law’s conception of debt, where one creditor lends money to one borrower in exchange for a direct promise …

Telaah Kritis Putusan Arbitrase Sebagai Dasar Permohonan Pailit, Syaiful Khoiri Harahap

Jurnal Hukum & Pembangunan

Against the arbitral award, the parties should be able to implement it voluntarily. If the losing party does not want to carry out its obligations by the specified deadline, then the obligation is a debt that must be paid by the debtor to the creditor. Based on article 8 paragraph 4, the proof in bankruptcy must be proven simply as a condition for bankruptcy of the debtor. The arbitration award should be the basis for the bankruptcy of the debtor. From the research results it can be concluded that bankruptcy can only occur if the debtor admits that he has …

Amicus Curiae Brief Of The Hon. Judith Fitzgerald (Bankruptcy Judge, Ret.), And Law Professors Pamela Foohey, George Kuney, Robert Lawless, Jonathan Lipson, Bruce A. Markell, Nancy Rapoport, Richard Squire, Ray Warner And Jack Williams, In Support Of The Petitioner, Pamela Foohey

Amicus Briefs

Your amici have taught courses on bankruptcy and commercial law, conducted research, and have been frequent speakers and lecturers at seminars and conferences throughout the United States. Each is highly regarded in this field, and each has made substantial contributions to bankruptcy scholarship and jurisprudence.

The question presented to this Court is as follows: “Whether Bankruptcy Code Section 363(m) limits the appellate court’s jurisdiction over any sale order or order deemed integral to a sale order. . . .” (emphasis added). Pet. i. The answer is that § 363(m) does not limit appellate review of the transaction involved in this …

Upaya Pemerintah Terhadap Perlindungan Ekspresi Budaya Tradisional Batik Motif Parang Sebagai Warisan Budaya Dunia, Raden Zulfikar Supinarko Putra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Batik is not just a design on a piece of cloth, more than that, batik is a soul that blends in the procession of Indonesian society. Since the baby has been carried with a batik cloth, weddings wear batik cloth until when they die they will be covered with batik cloth too usually. This fact become a consideration for UNESCO to establish Indonesian Batik as a Masterpieces of the Oral and Intangible Heritage of Humanity in the Fourth Session of The Intergovernmental Committee. This research uses a normative legal research method that is descriptive and analytical using a statutory …

Perbedaan Akad Wakalah Bil Ujrah Dan Akad Qard Terhadap Permasalahan Akad Pembelian Barang Dalam Kehidupan Sehari-Hari, Zendy Sellyfio Ardiana

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The wakalah bil ujrah and qard contract are contracts that often cause difficulties in implementing the purchase of goods in everyday life, both in safekeeping for purchasing goods and for buying and selling in general. Where if it is wrong in its application, it can cause income in a sale and purchase to be haraam due to an error in understanding the contract used and not describing benefit as the core of maqashid al-sharia which has an important role in determining Islamic law. The purpose of this paper is to find out how the solution to the application of …

Tinjauan Yuridis Dalam Penyelesaian Pelanggaran Ham Berat Melalui Komisi Kebenaran Dan Rekonsiliasi Di Afrika Selatan Dan Indonesia, Tshana Erfandi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Several countries are currently developing a solution to the problem by establishing a particular commission. The commission works outside the courts, parliament and executive. In Indonesia, In Indonesia. The People's Consultative Assembly set a stipulation regarding the establishment of the National Center for Truth and Reconciliation: (NCTR) in 2000. This stipulation has the intent and purpose for national unity to identify existing problems, determine the conditions that must be made in order to achieve national reconciliation and establish policy direction as a guide to carry out the consolidation of unity of a nation. Whereas in South Africa, the National …

Bankruptcy As Social Safety Net, Pamela Foohey

Online Publications

One in ten Americans have filed bankruptcy at some point during their adult lives. Contrary to the pronouncements of some politicians, these filings do not reflect a series of personal failures and should not be understood as failures of character. Indeed, most of the people who file bankruptcy struggle for years to pay their debts before turning to bankruptcy law and courts for help. And most of the people who file say that they felt shame upon filing. Instead, the bankruptcy filings of millions and millions of people reflect systematic policy choices over the past forty years that have left …

May The Executive Branch Forgive Student Loan Debt Without Further Congressional Action?, Colin Mark

Journal of the National Association of Administrative Law Judiciary

On April 1, 2021, the Biden administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper interrogates the leading arguments for and against the Biden administration’s capacity to forgive this student loan debt strictly using administrative action. This article first surveys the history of federal student loan forgiveness programs in the United States. It then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the …

The Long And Winding Road To The Small Business Reorganization Act: Why Our Next Stop Should Be Simplicity And Accessibility, Daniel O'Hare

West Virginia Law Review

No abstract provided.

When Is A Debt "Obtained By" Fraud?: Reconsideration Of The Fraud Nondischargeability Exception Under Section 523(A)(2) Of The Bankruptcy Code, Theresa J. Pulley Radwan

West Virginia Law Review

No abstract provided.