Harsh Creditor Remedies and The Role of the Redeemer

The concept of the judgment-proof or collection-proof debtor is fundamental to our understanding of civil law and of what distinguishes it from criminal law. But when civil creditors can threaten unduly harsh or cruel debt collection measures (whether legally or not), they extend their reach into the pockets of those whom this Article calls “redeemers,” third parties with a familial or quasi-familial relationship to civil debtors who have reason to pay on their behalf. This Article examines four such measures—imprisonment, homelessness, destitution, and deportation—remedies that sound like they come from another time and place, but which are threatened by some creditors in the United States today. Such “remedies” are problematic because (among other reasons) they undermine a core pillar of civil law: that liability—absent a guarantee—is limited to the defendant. Because harsh creditor remedies can affect third party redeemers, they also provide a classic example of an externality that justifies nonparentalistic intervention. We should think of this field not as “the law of debtors and creditors,” but as “the law of debtors, creditors, and redeemers.” The role that redeemers play in debt collection law is one of many instances in which legal institutions display a myopic view of communities: redeemers too often stand outside the field of vision of courts and legislatures. Even so, this theory provides a powerful tool for explaining and reinforcing legal rules ranging from the law of unconscionability to exemption statutes to consumer protection. This Article also recommends several measures to cabin this “spillover” effect, including an argument that imprisonment for civil debt violates not only state bans on debtors’ prisons, but also the federal Due Process Clause (even after Dobbs)

Bankruptcy Fiduciaries

Does social enterprise end with insolvency? Is bankruptcy all about the bottom line? The answer to these questions begins with understanding the estate in bankruptcy and the fiduciaries that control its fate. Yet the law of fiduciary duties in bankruptcy is undertheorized, conflicted, and muddled. After almost fifty years of confusion, this Article provides the first comprehensive examination of the nature and source of fiduciary duties in bankruptcy. Although the Supreme Court has intoned “maximize the value of the estate” as a shorthand, I argue that the trustee’s duty of obedience in reorganization cases gives rise to a “duty to facilitate a plan” or, as I call it, a “duty to clear runway.” I also conclude, based on 28 U.S.C. § 959, that the trustee must observe state law fiduciary duties that would otherwise have governed the debtor outside of bankruptcy. Trustees of benefit corporations, for example, must not pursue money-maximization above all else, but must balance pecuniary interests against the public benefit set forth in the debtor’s articles, such as preserving employment, protecting the environment, or supporting the local economy. For their part, creditors and debtors alike have opportunities to advocate for public-minded goals in bankruptcy cases as part of official committees or, in a novel twist, a “benefit committee.” And indeed, some creditors, like DIP lenders, may step into a fiduciary relationship with the bankruptcy estate if they wield extraordinary control over the estate’s decision making. The timing is right for a rethinking: as the social enterprise ecosystem finds itself caught up in bankruptcy proceedings, creditors and debtors alike may wish to press for their vision of value. This vision for bankruptcy law is both capacious and controversial: it would allow for a wider range of values to be pursued during the plan negotiation process and could reshape bankruptcy practice for social enterprises

Bespoke, Tailored, and Off-the-Rack Bankruptcy: A Response to Professor Coordes\u27s \u27Bespoke Bankruptcy\u27

Toward the end of every semester that I teach bankruptcy, I let my students vote on which “non-traditional” insolvency regimes they would like to study, including municipal bankruptcy, sovereign bankruptcy, and financial institutions. What I am really trying to do is convey to the students that the default procedures and substantive rules in Chapters 7 and 11 of the U.S. Bankruptcy Code do not apply to all types of enterprises

State Bans on Debtors\u27 Prisons and Criminal Justice Debt

Since the 1990s, and increasingly in the wake of the Great Recession, many municipalities, forced to operate under tight budgetary constraints, have turned to the criminal justice system as an untapped revenue stream. Raising the specter of the debtors\u27 prisons once prevalent in the United States, Imprisonment for failure to pay debts owed to the state has provoked growing concern over the year

Bankruptcy & the Benefit Corporation

As pressure grows for money-making businesses to prioritize social responsibility, the benefit corporation - a recent innovation in corporate governance - promises to require the directors of socially minded businesses to balance public benefit with shareholder interests. But will that promise survive the crucible of financial distress? While most discussions of the benefit corporation give only passing treatment to insolvency (or ignore it altogether), this Article provides the first complete analysis of how bankruptcy principles would apply to benefit corporations, informed by the practical context of out-of-court workouts and negotiations that take place in the shadow of the bankruptcy laws. After analyzing three normative models, including an innovative application of the channeling function of law, this Article answers that the benefit corporation\u27s key innovations should persist in bankruptcy. But with the reticulated provisions of creditor-debtor law and the Bankruptcy Code, the Article warns that the application of that principle is complicated and provides a detailed map of some of the major considerations - and pitfalls

The New American Debtors\u27 Prisons

State by state, Americans abolished imprisonment for debt in the first half of the nineteenth century. In forty-one states, the abolition of debtors\u27 prisons eventually took the form of constitutional bans. But debtors\u27 prisons are back, in the form of imprisonment for nonpayment of criminal fines, fees, and costs. While the new debtors\u27 prisons are not historically or doctrinally continuous with the old, some aspects of them offend the same pragmatic and moral principles that compelled the abolition of the old debtors\u27 prisons. Indeed, the same constitutional texts that abolished the old debtors\u27 prisons constitute checks on the new today. As the criminal law literature grapples with debtors\u27 prisons through more traditional doctrinal avenues, this Article engages with the metaphor head-on and asks how the old bans on debtors\u27 prisons should be interpreted for a new era of mass incarceration.

Aragonite bias exhibits systematic spatial variation in the late Cretaceous Western Interior Seaway, North America

Preferential dissolution of the biogenic carbonate polymorph aragonite promotes preservational bias in shelly marine faunas. Whilst field studies have documented the impact of preferential aragonite dissolution on fossil molluscan diversity, its impact on regional and global biodiversity metrics is debated. Epicontinental seas are especially prone to conditions which both promote and inhibit preferential dissolution, which may result in spatially extensive zones with variable preservation. Here we present a multi-faceted evaluation of aragonite dissolution within the late Cretaceous Western Interior Seaway of North America. Occurrence data of molluscs from two time intervals (Cenomanian-Turonian boundary, early Campanian) are plotted on new high-resolution paleogeographies to assess aragonite preservation within the seaway. Fossil occurrences, diversity estimates and sampling probabilities for calcitic and aragonitic fauna were compared in zones defined by depth and distance from the seaway margins. Apparent range sizes, which could be influenced by differential preservation potential of aragonite between separate localities, were also compared. Our results are consistent with exacerbated aragonite dissolution within specific depth zones for both time slices, with aragonitic bivalves additionally showing a statistically significant decrease in range size compared to calcitic fauna within carbonate-dominated Cenomanian-Turonian strata. However, we are unable to conclusively show that aragonite dissolution impacted diversity estimates. Therefore, whilst aragonite dissolution is likely to have affected the preservation of fauna in specific localities, time averaging and instantaneous preservation events preserve regional biodiversity. Our results suggest that the spatial expression of taphonomic biases should be an important consideration for paleontologists working on paleobiogeographic problems

Report from the Annual Conference of the British Society of Echocardiography, November 2016, Queen Elizabeth II Conference Centre, London.

Peer reviewedPublisher PD

Multiple novel prostate cancer susceptibility signals identified by fine-mapping of known risk loci among Europeans

Genome-wide association studies (GWAS) have identified numerous common prostate cancer (PrCa) susceptibility loci. We have fine-mapped 64 GWAS regions known at the conclusion of the iCOGS study using large-scale genotyping and imputation in 25 723 PrCa cases and 26 274 controls of European ancestry. We detected evidence for multiple independent signals at 16 regions, 12 of which contained additional newly identified significant associations. A single signal comprising a spectrum of correlated variation was observed at 39 regions; 35 of which are now described by a novel more significantly associated lead SNP, while the originally reported variant remained as the lead SNP only in 4 regions. We also confirmed two association signals in Europeans that had been previously reported only in East-Asian GWAS. Based on statistical evidence and linkage disequilibrium (LD) structure, we have curated and narrowed down the list of the most likely candidate causal variants for each region. Functional annotation using data from ENCODE filtered for PrCa cell lines and eQTL analysis demonstrated significant enrichment for overlap with bio-features within this set. By incorporating the novel risk variants identified here alongside the refined data for existing association signals, we estimate that these loci now explain ∼38.9% of the familial relative risk of PrCa, an 8.9% improvement over the previously reported GWAS tag SNPs. This suggests that a significant fraction of the heritability of PrCa may have been hidden during the discovery phase of GWAS, in particular due to the presence of multiple independent signals within the same regio