Bankruptcy Reform and Economic Recovery

(Excerpt) In 2005, following years of intensive lobbying by the consumer credit industry, the focus of the consumer bankruptcy law was changed from the liberal debtor-focused fresh start approach embodied in the 1978 Bankruptcy Code to a creditor-focused can pay/must pay approach. Although the shift to a can pay/must pay system started years earlier to address perceived abuses, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ( BAPCPA ) completed that shift by engrafting onto the bankruptcy law a fairly strict and largely objective test for determining a debtor\u27s ability to repay debt and by setting forth channeling rules designed to force debtors with a perceived ability to repay some debt into a lengthy repayment plan. The focus of the debate about that change has been on the debtor. Proponents of the change have phrased the reforms in moralist terms. They tend to set forth a narrative of widespread moral failure among those debtors using the bankruptcy system, and they use morally charged terms like substantial abuse, rather than more neutral terms like eligibility to describe the debtors determined to have an ability to repay. Opponents of the change have similarly focused on the debtor, arguing that the indebtedness causing resort to the bankruptcy system does not equate to moral failings by debtors and focusing on the debtors\u27 need for relief from burdensome indebtedness. Largely missing from the debate is consideration of the possible macroeconomic effects of the 2005 BAPCPA changes to the bankruptcy law. The purpose of this brief essay is to explore the role that the consumer bankruptcy system plays in economic recovery after periods of economic recession like the current Great Recession. My thesis is that consumer bankruptcy policy plays an important role in economic recovery and that the shift to a can pay/must pay system will both dampen and delay recovery from economic recessions

Giving and Creating: The Legacy of Keith J. Shapiro

(Excerpt) Some take; others give. Tonight’s honoree, Keith J. Shapiro, is a giver. Many of the giants in our field have received this award during its almost 20-year history, and each of them richly deserved it. But of all the recipients, Keith is the person most deserving of this particular award. This is, after all, the Emory Bankruptcy Developments Journal lifetime achievement award and Keith and the Journal are inextricably linked. Not only did this journal launch Keith’s lifetime of stellar bankruptcy achievement, but one of his achievements was pushing this Journal to the success and preeminence that it now enjoys. Keith has received many other lifetime achievement awards, and I have been honored to attend a few of those ceremonies. But the greatest honor for me is to be able to present him with this award because it completes the circle of Keith’s bankruptcy life

Conflicting Norms: Impact of the Model Law on Chapter 11\u27s Global Restructuring Role

(Excerpt) The Model Law on Cross-Border Insolvency is said to embody the concept of modified universalism for cross-border insolvency matters. In a pure universalist system, a single proceeding would deal with all of the debtor’s assets and debts globally. This is in contrast to a purely territorial approach, where multiple local proceedings would be required; one in each jurisdiction where the debtor had assets or debts, but each limited to the assets and debts located in that jurisdiction. While universalism emphasizes the economic goals of insolvency theory – to maximize the value of the estate and minimize the expense of the process -- territorialism emphasizes (or at least recognizes) the sovereignty of the states where the assets of the debtor are located or the effects of the insolvency proceeding are felt. The modified universalist approach embodied in the Model Law reflects a compromise between the theory of universalism and the practical realities of the territorial sovereignty limitations on the effectiveness of any one state’s insolvency orders. It does this by accepting that there would be multiple proceedings in different states and then trying to reduce the inefficiencies that might create. Some of the inefficiencies can be reduced simply by communication and cooperation, but often the goal of maximizing value requires that there be a single plan for the resolution of the affairs of a single debtor. This requires coordination of the multiple proceedings pending in diverse jurisdictions. Coordination will often require that one of the local proceedings (the “main” proceeding) control the process and that the other proceedings (the “secondary” proceedings) defer to that proceeding. The Model Law accomplishes this by permitting the courts in an adopting jurisdiction to grant additional relief to a foreign representative from the main proceeding and encouraging deference to the main proceeding

Opening Remarks

Professor G. Ray Warner\u27s remarks highlighting the many professional and civic achievements of Keith Shapiro throughout his 35-year career

Bankruptcy Court Jurisdiction After Executive Benefits Insurance Agency v. Arkison

(Excerpt) Bankruptcy law has been struggling for several years now with the so-called Stern problem”—the jurisdictional cloud of doubt that has been cast by the Supreme Court\u27s decision in Stern v. Marshall over much of the work that bankruptcy courts have done routinely for decades. Since Stern was decided, bankruptcy courts and the litigants who appear before them cannot be confident that it is constitutional for non-Article III bankruptcy judges to adjudicate various matters over which there is clear statutory jurisdiction, such as avoidance actions against third party transferees who are not otherwise involved or participating in the bankruptcy case. It is even questionable whether consent by all parties to adjudication before a bankruptcy judge would solve potential jurisdictional defects in Stern-implicated matters. Nevertheless, despite the long shadow that Stern has cast, bankruptcy courts around the country have continued to operate as they did before, if for no other reason than simply because the show must go on. As temporary fixes (if not quite solutions) to Stern, bankruptcy courts have mainly been doing two things: (1) issuing, like magistrate judges do, proposed findings of fact and proposed conclusions of law while leaving the final decision for the district judge to make on appeal after de novo review; and (2) obtaining consent from the parties who appear in bankruptcy court to the bankruptcy court\u27s jurisdiction, particularly in cases where Stern is raised or implicated. Doing one or both of these has allowed bankruptcy courts to continue to function more or less as before—at least ab initio. But always lurking in the background is the risk that an appeal raising a Stern issue could overturn the work of the bankruptcy court below. Such was the situation, for instance, in In re Bellingham Insurance Agency, Inc., a recent decision of the Ninth Circuit reviewing and ultimately affirming an award of summary judgment in favor of a bankruptcy estate in an avoidance action against third parties who, for the first time on appeal, had raised a Stern defense. While the bankruptcy court\u27s work was affirmed by the Ninth Circuit in Bellingham, the parties there and in similar cases around the country have been forced to operate in the jurisdictional twilight zone created by Stern (even as to core claims specifically delegated to the bankruptcy courts by statute), and the approach taken by the Ninth Circuit in Bellingham has not been uniformly embraced by other courts. Thus, when the Supreme Court granted certiorari in Bellingham (recaptioning the case under the name Executive Benefits Insurance Agency v. Arkison), there was great hope in the bankruptcy bar that Stern\u27s scope would be clarified and that the Court would address in particular the jurisdictional effects of the two practices mentioned above, proposed findings/conclusions and consent. Unfortunately, these hopes were not fully realized. For the Court\u27s decision, which affirmed the Ninth Circuit on the narrow ground that the district court had reviewed the bankruptcy court\u27s summary judgment ruling de novo, addresses only the first issue and not the second

Hedge Funds in Bankruptcy

(Excerpt) Hedge funds and other professional and institutional investors are playing an increasingly important role in bankruptcy cases. As buyers of financially distressed securities, they provide a valuable outlet for holders of such securities who wish to exit those markets. They also facilitate the consolidation of distressed securities into the hands of owners who are well-equipped to press for outcomes in Chapter 11 cases that maximize the value of those securities. At the same time, the active participation of hedge funds in the bankruptcy process at times gives them access to nonpublic information that may afford them an undue advantage in their ongoing trading activities. To balance these competing considerations, various practices have developed to regulate hedge funds in ways that attempt to preserve the value that they add to the bankruptcy process while also eliminating any improper advantage that participation in that process may confer. These measures and various proposals for their reform, which have been hotly debated within the bankruptcy and hedge fund communities, were the subject of a recent symposium at St. John\u27s School of Law whose fruits you now have before you. The eight papers that appear in this symposium issue of the American Bankruptcy Institute Law Review come from a diverse and distinguished group of scholars, practitioners, and public officials. In the grand tradition of interdisciplinarity that for nearly a century has informed academic discourse on bankruptcy law and policy, these papers are representative of the very best in bankruptcy scholarship

Oportunidades perdidas na prevenção da sífilis congênita e da transmissão vertical do HIV

OBJECTIVE: To estimate the prevalence of missed opportunities for congenital syphilis and HIV prevention in pregnant women who had access to prenatal care and to assess factors associated to non-testing of these infections. METHODS: Cross-sectional study comprising a randomly selected sample of 2,145 puerperal women who were admitted in maternity hospitals for delivery or curettage and had attended at least one prenatal care visit, in Brazil between 1999 and 2000. No syphilis and/or anti-HIV testing during pregnancy was a marker for missed prevention opportunity. Women who were not tested for either or both were compared to those who had at least one syphilis and one anti-HIV testing performed during pregnancy (reference category). The prevalence of missed prevention opportunity was estimated for each category with 95% confidence intervals. Factors independently associated with missed prevention opportunity were assessed through multinomial logistic regression. RESULTS: The prevalence of missed prevention opportunity for syphilis or anti-HIV was 41.2% and 56.0%, respectively. The multivariate analysis showed that race/skin color (non-white), schooling (OBJETIVO: Estimar la prevalencia de oportunidad de pérdida de prevención de la sífilis y el HIV entre gestantes que tuvieron acceso al pre-natal y factores asociados con la no evaluación de estos agravios. MÉTODOS: Se realizó estudio transversal con muestra aleatoria de 2.145 puérperas de Brasil, 1999 y 2000 admitidas en maternidades para parto o curetaje y que habían realizado al menos una consulta de pre-natal. La no realización del examen de prueba para sífilis y/o anti-HIV durante el embarazo fue usada como marcador para oportunidad de pérdida de prevención. Las mujeres que realizaron sólo examen de sífilis o sólo examen de anti-HIV, o que no realizaron ninguno, fueron comparadas con las que realizaron los dos (categoría de referencia). La prevalencia de oportunidad de pérdida de prevención fue estimada para cada categoría, con intervalo de confianza de 95%. Los factores asociados con la oportunidad de pérdida de prevención fueron analizados por medio de regresión logística multinomial. RESULTADOS: La prevalencia de oportunidad de pérdida de prevención para la realización de la prueba de sífilis o anti-HIV fue de 41,2% e 56,0%, respectivamente. El análisis multivariado indicó que raza/color (no blanca), escolaridad (< 8 años de estudio), estado civil (soltera), renta < 3 salarios mínimos, relación sexual durante el embarazo, no haber tenido sífilis anterior al embarazo actual, realización de seis o mas consultas de pre-natal y la realización de la última visita antes del tercer trimestre de embarazo, estaban asociados con mayor riesgo de tener oportunidad de pérdida de prevención. Se observó una asociación negativa entre estado civil (soltera), lugar de realización de pre-natal (hospital) y la realización de la primera consulta pre-natal en el tercer trimestre con oportunidad de pérdida de prevención. CONCLUSIONES: Altos porcentajes de gestantes no evaluadas señalan fallas en la prevención y control de la infección por HIV y de la sífilis congénita en los servicios de salud. Las gestantes continúan interrumpiendo el cuidado pre-natal precozmente y no logran realizar los procedimientos de selección para HIV y sífilis.OBJETIVO: Estimar a prevalência de oportunidade perdida de prevenção a sífilis e HIV entre gestantes que tiveram acesso ao pré-natal e fatores associados a não-testagem para esses agravos. MÉTODOS: Estudo transversal com amostra aleatória de 2.145 puérperas do Brasil, 1999 e 2000 admitidas em maternidades para parto ou curetagem e que haviam realizado pelo menos uma consulta de pré-natal. A não-realização de exame de teste para sífilis e/ou anti-HIV durante a gravidez foi usada como marcador para oportunidade perdida de prevenção. Mulheres que realizaram apenas exame de sífilis ou apenas o anti-HIV, ou não realizaram nenhum, foram comparadas àquelas que realizaram os dois (categoria de referência). A prevalência de oportunidade perdida de prevenção foi estimada para cada categoria, com intervalo de confiança de 95%. Os fatores associados com oportunidade perdida de prevenção foram analisados por meio de regressão logística multinomial. RESULTADOS: A prevalência de oportunidade perdida de prevenção para a realização do teste de sífilis ou anti-HIV foi de 41,2% e 56,0%, respectivamente. A análise multivariada indicou que raça/cor (não branca), escolaridade (< 8 anos de estudo), estado civil (solteira), rend

9th Biennial Judge Joe Lee Bankruptcy Institute

Materials from the 9th Biennial Judge Joe Lee Bankruptcy Institute held December 1999

Spherical Universe topology and the Casimir effect

The mode problem on the factored 3--sphere is applied to field theory calculations for massless fields of spin 0, 1/2 and 1. The degeneracies on the factors, including lens spaces, are neatly derived in a geometric fashion. Vacuum energies are expressed in terms of the polyhedral degrees and equivalent expressions given using the cyclic decomposition of the covering group. Scalar functional determinants are calculated and the spectral asymmetry function treated by the same approach with explicit forms on one-sided lens spaces.Comment: 33 pages, 1 figure. Typos corrected and one reference adde