Future Nonadvance Obligations: Preferences Lost in Metaphor

Part I outlines the elements of the debate in conventional terms. Part II offers an overview of the Experientialist epistemology and the role it assigns to metaphor in thought. The overview prepares the way for an explication in Part III.A. of the metaphoric concepts by which Article 9 is understood. Part III.B. makes explicit the underlying metaphoric concepts inherent in the opposing doctrinal positions taken in the Coogan- Gilmore debate on the question of future advance priorities. It also seeks to demonstrate how those concepts stipulated the terms on which the debate could be carried out, and how they spread to frustrate analysis of a related but distinct priority issue, the priority treatment of what have been termed future nonadvance obligations under Article 9. Part IV describes another incarnation of the Coogan-Gilmore debate and the practical consequences of the hiding power of metaphoric reasoning

The Immovable Object Versus the Irresistable Force: Rethinking the Relationship Between Secured Credit and Bankruptcy Policy

The last leaf in O. Henry\u27s classic short story was hanging by a delicate thread, but it never fell. It never fell, of course, because it wasn\u27t real; Old Behrman had painted it (and caught pneumonia for his trouble) in order to give Johnsy the will to live. The Supreme Court\u27s decision in Dewsnup v. Timm is also hanging by a thread, following a barrage of scholarly criticism and more than four years of limiting case law and legislative incursions on the case\u27s core conceptual rationale. But the holding in Dewsnup, unlike the last leaf, is very real. It has had, and continues to have, a deleterious effect on the ability of many individual debtors to obtain meaningful relief and a truly fresh start in bankruptcy. This article urges Congress, as it considers the recommendations of the National Bankruptcy Review Commission, to sever the last thread and consign the Supreme Court\u27s 1992 decision to its rightful role as a historical anomaly. In taking this action, Congress could clarify once and for all the nature and status of security and secured claims in bankruptcy. The advantages to be attained from doing so are considerable, not the least of which includes establishing the contours of the fresh start for individual debtors in chapter 7 in a manner that raises fresh-start policy to a level of dignity commensurate with the policy of efficient debt collection

Having One's Property and Eating it Too: When the Article 9 Security Interest Becomes a Nuisance

Article published in the Notre Dame Law Review