Bankruptcy Law Commons^™

Beyond Carve-Outs And Toward Reliance: A Normative Framework For Cross-Border Insolvency Choice Of Law, John A. E. Pottow

Articles

The title of this Article purports to develop a normative framework for cross-border insolvency choice of law. That can be a task of varying scope, so at the outset any pretense of ambition for a wholly new choice of law model should be dispelled. Indeed, at the most generalized level, bankruptcy choice of law theory has already been fully ventilated in the well-rehearsed universalism versus territorialism debates. And it has been settled. The universalists, at least as a normative matter, appear to have won: choice of law, as it is increasingly accepted, should be determined by the debtor's center of …

Moving Beyond Marriage: A Proposed Unit Of Presumed Economic Interdependence For Joint Filing Purposes In Bankruptcy And In Tax, Heather V. Graham

Pace Law Review

In order to promote both equality and efficiency, this Comment proposes that individuals should have the opportunity to file jointly for tax and bankruptcy purposes when they have a relationship predicated upon economic interdependence, as opposed to basing the opportunity to file jointly upon marital status. Part I of this Comment will briefly discuss the history of marriage in the United States. In particular, Part I will discuss the role that the government has had in promoting and regulating marriage and how the treatment of married persons operates to the exclusion of the unmarried. Parts II and III of this …

Bankruptcy, John T. Laney Iii, Daniel Taylor

Mercer Law Review

This Article focuses on bankruptcy opinions issued in 2013 by the Supreme Court of the United States and courts within the Eleventh Circuit. The topics range from the legality of "ghostwriting" to the definition of "defalcation" under section 523(a)(4) of the United States Bankruptcy Code.

Exploring The Boundaries Of Municipal Bankruptcy, Christopher J. Tyson

All Scholarship

Municipal fiscal insolvency has become the central challenge facing American cities. Municipal fiscal insolvency is the result of many factors, including risk taking, fiscal mismanagement, corruption, and the absence of political will to make hard choices. There are also structural factors at play-specifically, local government organization and the fiscal constraints states place on their subdivisions play a significant role in the ability of municipalities to achieve sustainability and growth. These factors are rarely included in the discussion on municipal fiscal insolvency, and understandably so. It is hard to determine the role that local government organization plays in undermining the fiscal …

Abstention Doctrine And The Fair Debt Collection Practices Act, Michael J. Wood

Chicago-Kent Law Review

A survey of cases where federal courts abstain from hearing cases related to existing state court cases under the Fair Debt Collection Practices Act (FDCPA) reveals varying approaches and theories underlying those courts’ abstentions. This article attempts to distinguish FDCPA claims related to the validity of the underlying debt from claims arising out of debt collectors’ conduct in collecting a debt, and recommends that federal courts avoid abstaining from the latter. When Congress passed the FDCPA, it intended to provide access to a forum of the consumer’s choice to enforce their rights under the Act by serving as “private attorneys …

When Should Bankruptcy Be An Option (For People, Places, Or Things)?, David A. Skeel Jr.

William & Mary Law Review

When many people think about bankruptcy, they have a simple left-to-right spectrum of possibilities in mind. The spectrum starts with personal bankruptcy, moves next to corporations and other businesses, and then to municipalities, states, and finally countries. We assume that bankruptcy makes the most sense for individuals; that it makes a great deal of sense for corporations; that it is plausible but a little more suspect for cities; that it would be quite odd for states; and that bankruptcy is unimaginable for a country.

In this Article, I argue that the left-to-right spectrum is sensible but mistaken. After defining “bankruptcy,” …

The Bankruptcy-Law Safe Harbor For Derivatives: A Path-Dependence Analysis, Steven L. Schwarcz, Ori Sharon

Washington and Lee Law Review

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This Article argues that these rights and immunities result from a form of path dependence, a sequence of industry-lobbied legislative step s, each incremental and in turn serving as apparent justification for the next step, without a rigorous and systematic vetting of the consequences. Because the resulting “safe harbor” has not been fully vetted, its significance and utility should not be taken for granted; thus, regulators, legislators, and other policymakers—whether in the United States or abroad—should not automatically assume, based on its …

Chapter 11 With A Happy Ending: The Six Flags Bankruptcy, John Capps, Lauren Sherrell

Chapter 11 Bankruptcy Case Studies

This paper discusses the bankruptcy and restructuring that Premier Parks (“Six Flags”) recently underwent in order to return the company to profitability. The discussion begins with a summary of the company’s history and an introduction to the key players in the restructuring process, including the relevant circumstances and management figures responsible for the considerable financial problems that brought Six Flags to make a Chapter 11 filing. Contextually significant factors such as economic and industry conditions, stakeholder motivations, and media occurrences that were particularly relevant are examined as well. The paper provides an account of the bankruptcy proceedings from the company’s …

Borders Group, Inc.’S Final Chapter: How A Bookstore Giant Failed In The Digital Age, Will Hooper, Mary Katherine Rawls

Chapter 11 Bankruptcy Case Studies

In 1995, Borders Group, Inc. was the second largest bookstore in America, boasting massive superstores that housed more titles of books, DVDs, and videos than any of its competitors. Despite its early strength and success, a series of unfortunate business decisions and a general failure to keep up with the times sent Borders spiraling down a path to financial ruin. This paper documents the birth, rapid growth, and eventual downfall of Borders Bookstores through the lens of its Chapter 11 Bankruptcy.

Municipal Bankruptcy And Public Pensions: Detroit's Eligibility For Chapter 9 Relief And Legal Restraints On The City's Actions As A Debtor, Jackson T. Garvey

Notre Dame Law Review

This Note will seek to address the constitutional and statutory issues raised in the early stages of Detroit’s bankruptcy. Part I will briefly address how Detroit reached the point where municipal bankruptcy became legally possible and politically attractive. It will examine population trends in the city, changes in the character of Detroit’s major industries, and the deterioration of city services.

Part II will provide background information about the history of municipal bankruptcy in America and the constitutional challenges that it has faced. It will attempt to give a base from which to examine the major issues raised by Detroit’s case …

In Re Fairpoint Communications, Inc., Patrick Green, Todd Blakeley Skelton

Chapter 11 Bankruptcy Case Studies

FairPoint Communications, Inc. (the “Company”) and its subsidiaries (collectively, “FairPoint”) provide communications services to rural and small business customers in eighteen states.[1] As of December 2009, FairPoint had approximately 1.7 million “access line equivalents (including voice access lines and high-speed data lines, which include digital subscriber lines, or DSL, wireless broadband and cable modem) in service.”[2] Challenges presented by industry competition and innovation, the integration of acquired operations, adverse economic conditions, and changes in customer usage and spending habits contributed to FairPoint and its subsidiaries and affiliates’ filing a voluntary Chapter 11 bankruptcy petition on October 26, 2009 …

Fueling The Death Spiral For Workers' Pensions: The Bankruptcy Process And Multiemployer Pension Plans, Colleen Ray

Villanova Law Review (1956 - )

This comment examines how the Bankruptcy Code undermines the retirement security goals of ERISA and MPPAA. The article traces the development of multiemployer pension plans and the regulatory scheme. In addition, it discusses how withdrawal liability functions and how employer withdrawals affect the other employers contributing to a multiemployer pension plan. Next, it addresses the Bankruptcy Code’s treatment of withdrawal liability. Finally, the comment analyzes the impact of discharging withdrawal liability by discussing In re Hostess Brands, Inc.

Amplifying The Voices Of Retirees: The Third Circuit's Broad Interpretation Of Bankruptcy Code Section 1114 In In Re Visiteon Corp., Ashleigh K. Reibach

Villanova Law Review (1956 - )

This Brief examines the Third Circuit’s analysis of Chapter 11, Section 1114 of the Bankruptcy Code as it applies to motions to modify or terminate retiree benefits and serves as a guide to practitioners bringing or contesting such motions during Chapter 11 bankruptcy proceedings in the Third Circuit.

Long-Term Financial Burden Of Breast Cancer: Experiences Of A Diverse Cohort Of Survivors Identified Through Population-Based Registries, Reshma Jagsi, John A.E. Pottow, Kent A. Griffith, Cathy Bradley, Ann S. Hamilton, John Graff Rutgers University, Steven J. Katz, Sarah T. Hawley

Articles

Purpose: To evaluate the financial experiences of a racially and ethnically diverse cohort of long-term breast cancer survivors (17% African American, 40% Latina) identified through population-based registries. Methods: Longitudinal study of women diagnosed with nonmetastatic breast cancer in 2005 to 2007 and reported to the SEER registries of metropolitan Los Angeles and Detroit. We surveyed 3,133 women approximately 9 months after diagnosis and 4 years later. Multivariable models evaluated correlates of self-reported decline in financial status attributed to breast cancer and of experiencing at least one type of privation (economically motivated treatment nonadherence and broader hardships related to medical expenses). …

Bankruptcy—Confusion And Ambiguity: The Post-Bapcpa Uncertainty Concerning The Ride-Through Option In The Eighth Circuit, Kate Davidson

University of Arkansas at Little Rock Law Review

No abstract provided.

In Re Qimonda Ag: The Conflict Between Comity And The Public Policy Exception In Chapter 15 Of The Bankruptcy Code, John J. Chung

Law Faculty Scholarship

No abstract provided.

Exploring Chapter 11 Reform: Corporate And Financial Institution Insolvencies; Treatment Of Derivatives -, Michelle M. Harner

Congressional Testimony

No abstract provided.

House Swaps: A Strategic Bankruptcy Solution To The Foreclosure Crisis, Lynn M. Lopucki

Michigan Law Review

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes. In Nobelman, however, the Court misinterpreted reasonably clear statutory language and invented legislative history to resolve a three-to-one split of circuits in favor of the minority view …

The Paradoxes Of Secured Landing: Is There A Less Uneasy Case For The Priority Of Secured Claims In Bankruptcy?, Wei Zhang

Research Collection Yong Pung How School Of Law

This paper is inspired directly by two articles coauthored by Professors Bebchuk and Fried, which comprehensively questioned the efficiency of the bankruptcy priority awarded to secured claims. It starts by pointing out the following efficiency benefit of such priority largely unmentioned in the legal literature, including the Bebchuk and Fried articles: the priority of secured debts undermines borrowers’ incentives to pursue excessively risky investment projects under certain circumstances. However, this additional benefit also exposes two interrelated paradoxes pertaining to the welfare effects of secured claims with bankruptcy priority. For one thing, while issuance of secured senior debts helps constrain over-risky …

Banking And The Social Contract, Mehrsa Baradaran

Notre Dame Law Review

This Article asserts that there are three major tenets of the social contract: (1) safety and soundness, (2) consumer protection, and (3) access to credit. Regulators can and should require banks to meet standards in these areas to benefit society even if these measures reasonably reduce bank profits. Implicit in the social contract is the idea that each party must give up something in the exchange. This Article provides policymakers not only the appropriate narrative and justifications needed to frame their regulatory philosophy, but it also provides important textual support from the most prominent acts of banking legislation to give …