Hey, the Sun is Hot and the Water\u27s Fine: Why Not Strip Off That Lien?

In this article, the author maintains that avoidance of wholly unsecured liens ( strip off ) in chapter 7 is permissible and desirable notwithstanding the Supreme Court\u27s controversial 1992 decision in Dewsnup v. Timm, which refused to permit avoidance of the unsecured portion of a partially secured lien ( strip down ). The argument flows from a broader analysis of the proper characterization of secured claims in bankruptcy. Specifically, contrary to the state law ideation of secured that focuses on the identity of the claimant, the author urges that in bankruptcy the concept of secured should focus on that creditor\u27s claim or claims as defined by the Bankruptcy Code. He argues not only that bankruptcy courts have the authority to develop a uniform federal rule in this area, but that to do so would limit Dewsnup to its narrowest possible construction, and perhaps provide the impetus for reexamination of a decision that is out-of-step with core bankruptcy policy and the Court\u27s own bankruptcy jurisprudence

Neither ‘Twixt nor ‘Tween: Emerging Property Interests in Bankruptcy

Article published in the Arizona Law Review

Reclaim This! Getting Credit Seller Rights in Bankruptcy Right

Article published in the U. Rich. Law Review

What’s Really Wrong with Legal Education and What You Can do About It

There has been an awful lot written over the past several years about the current state and/or the future of legal education.' From formative and summative assessment of learning outcomes, to distance learning, to the impact of technology and machine learning on law practice, to use of alternatives to the LSAT in admissions, to student debt, to rankings, to-well, you name it. Much of this literature is critical of the industry; some of it is hopeful. All of it, however, seems to assume we've been doing it wrong for a long time

The Last Dance: Righting the Supreme Court's Greatest Bankruptcy Apostasy

In 1992, the United States Supreme Court entered its decision in Dewsnup v. Timm, which, although widely criticized by courts and commentators alike, has nonetheless endured for thirty years. Opportunities to overrule Dewsnup have been squandered even as many courts have expressed reservations over the wisdom and coherence of its reasoning. While thus ripe for reconsideration, the question is how to maneuver the issue back in front of the Court, assuming, as is almost certainly the case, Congress fails to act first. This Article proposes that perhaps the last best hope for doing so is in the form of an issue that has split the lower courts more or less down the center, and that well may in time split the circuits when it reaches that juncture. Ironically, and perhaps poetically, that issue is one that derives from the legacy of Dewsnup itself. That is, how to value for Chapter 13 purposes an unsecured claim arising from strip off of a wholly underwater lien that has been discharged in a prior Chapter 7 case. Not definitively resolvable under the current text of the Bankruptcy Code, that question could, if properly postured and presented, compel reexamination of the Dewsnup holding. As currently constituted, the Supreme Court might well finally walk back from a regrettable holding that has caused the bankruptcy system and its participants considerable angst and confusion

Hey, the Sun is Hot and the Water\u27s Fine: Why Not Strip off that Lien?

In this article, the author maintains that avoidance of wholly unsecured liens ( strip off ) in chapter 7 is permissible and desirable notwithstanding the Supreme Court\u27s controversial 1992 decision in Dewsnup v. Timm, which refused to permit avoidance of the unsecured portion of a partially secured lien ( strip down ). The argument flows from a broader analysis of the proper characterization of secured claims in bankruptcy. Specifically, contrary to the state law ideation of secured that focuses on the identity of the claimant, the author urges that in bankruptcy the concept of secured should focus on that creditor\u27s claim or claims as defined by the Bankruptcy Code. He argues not only that bankruptcy courts have the authority to develop a uniform federal rule in this area, but that to do so would limit Dewsnup to its narrowest possible construction, and perhaps provide the impetus for reexamination of a decision that is out-of-step with core bankruptcy policy and the Court\u27s own bankruptcy jurisprudence

Desperate Times and Desperate Measures: The Troubled State of the Ordinary Course of Business Defense—and What to Do about It

The ordinary course of business defense to the bankruptcy trustee\u27s preference avoiding power has been controversial since its enactment in 1978. Burdened with a cryptic legislative history concerning its underlying goals, this preference exception has gone through multiple reinterpretations at the hands of Congress and the U.S. Supreme Court. In recent years, faced with a potentially expansive reading of the ordinary course defense that threatened to eclipse the rule, courts have used the ordinary business terms element of the defense to engraft an objective requirement that the party asserting the defense establish conformity of the challenged transfer with prevailing industry standards. Although deeply concerned about the expansive application of section 547(c)(2), the authors are critical of the industry terms requirement, concluding that it is incompatible with the goals of the ordinary course of business defense. Focusing on what they contend is the most defensible justification for an ordinary course defense, namely, to encourage creditors to continue to do business with a financially beleaguered debtor, the authors offer a practical proposal for rewriting section 547(c)(2). By deliberately reorienting the focus to the specific debtor/creditor relationship, and reintroducing a temporal requirement into the analysis, the authors maintain that this proposal cures the weaknesses in the statute as presently applied and harmonizes the scope of the exception with its primary purposive objective and preference policy in general

The Resiliency of the Equality of Creditors Ethos in Bankruptcy

The language and concept of equality among creditors, which has long dominated Anglo-American bankruptcy jurisprudence and analysis has recently been cast into question by a leading bankruptcy scholar who has constructed a compelling and disquieting case for the dual propositions that the equality principle in contemporary bankruptcy law and practice is on life support and that, while the patient could easily be resuscitated, no steps should be taken to do so. Against this provocative backdrop, I attempt to make the case in this article that (to sustain the analogy) the patient may have quite a bit of lfe left in her and that restoring her to health would be a boon to system participants in business reorganization as well as consumer bankruptcy cases. In justifcation of this assertion, I identify and develop a role for the equality norm in bankruptcy that not only makes it constructive in approaching key issues in bankruptcy, but that also preserves the integrity and coherence of the system to the benefit of debtors and creditors, as well as society at large