The Editorial Staff of the American Bankruptcy Law Journal is pleased to announce the publication of our inaugural digital issue, Volume 97, Issue 1 on our new website. 

Developed in collaboration with Temple University Beasley School of Law, this website provides an enriching and comprehensive experience for legal professionals, researchers, and students who are interested in bankruptcy law. Through this website, issues can be accessed effortlessly and without charge via any device, including computers, tablets, and smartphones, in both .pdf and dynamic formats. 

Volume 97 presents an array of insightful articles discussing diverse topics such as the historical context of gambling debts and bankruptcy, the impact of “deal-making” in bankruptcy cases, embezzlement, “bankruptcy remote” structuring, and methods to ensure more debtors obtain their discharge. In the future, we intend to enhance this website’s functionality by including author interviews, announcements regarding educational opportunities, and potentially a blog. The possibilities are infinite on this platform. We are thrilled to partner with Temple Law School in this exciting endeavor, and we look forward to providing a valuable resource for the bankruptcy law community. 

We encourage you to explore this website’s many features and share it with your colleagues. 

Current Issue

Terrence L. Michael

Editor in Chief

American Bankruptcy Law Journal

IN THIS ISSUE

If the terms “remoteness” and “ring-fencing” conjure up images of a peaceful place to reflect in wide expanses of natural landscapes with majestic views . . . then another definition of those terms by Professor Steven Schwarcz (Duke University) may surprise you. This article discusses how financial risk can be allocated to shield business operations from a potential bankruptcy filing and the public policy issues arising from such transactions. Reflections of a different nature, to be sure, but equally thought provoking. To read Professor Schwarcz’s article, click here.

Economics and social justice are an awkward pairing. No bankruptcy case filed in the 21st century makes this clearer than In re Purdue Pharma. The case pitted the often-sought chapter 11 goals of speed, value-maximization, and consensual resolution against the wrongs and harms suffered by thousands of victims of the opioid and overdose crisis. Professor Lipson critically analyzes the consequences of these trade-offs and whether the “rule of the deal” in a social debt case like Purdue Pharma should ever trump the rule of law. To read Professor Lipson’s article now, click here.

Today, the gambler who goes bust is protected by federal bankruptcy laws. But in the 19th century, such individuals were treated harshly. In his article Gambling and Bankruptcy in Nineteenth Century America, Professor Robert M. Jarvis (Nova Southeastern University) shines a spotlight on this little-known fact. In addition to describing the many legal barriers faced by destitute bettors, Jarvis identifies the numerous practical problems generated by their petitions. With an eye for historical detail, Jarvis leavens his discussion with a steady supply of fascinating tidbits, ranging from the bankruptcy of Robert Morris, Jr. (once the richest man in America) to the history of faro (the most popular gambling game in the United States until it was eclipsed by poker) to the disbarment of the British barrister Edwin John James (the first Queen’s Counsel to suffer such a fate). To read Professor Jarvis’s article now, click here.

Everyone knows that collateral can be converted. But can a security interest be embezzled? Some courts have said no, contending that a security interest is a mere lien upon property, and not enough of a property interest to be embezzled. Professor Jonathon Byington (University of Montana) takes these courts to task. After a thorough analysis of the history and nature of a security interest under the Uniform Commercial Code, Professor Byington argues that a security interest is indeed something that can be embezzled, and that, when a debtor embezzles a security interest, the related debt is nondischargeable under § 523(a)(4) of the Bankruptcy Code. To read Professor Byington’s article, click here.

There are statutes that bankruptcy judges and lawyers think are either ill-advised or fail to accomplish their purpose. Professor Laura Bartell (Wayne State University Law School) makes a compelling argument that 11 U.S.C. § 727(a)(11) unduly penalizes (and maybe punishes) debtors for their failure to take a personal financial management course and file a certificate of completion as a prerequisite to obtaining a discharge. Professor Bartell traces the origins of debtor financial education from its inception through its implementation, culminating with changes to § 109(h)(1) of the Code. Professor Bartell has compiled an empirical analysis of cases in which a debtor failed to get a discharge because of not taking the financial management course and filing the certificate. Professor Bartell analyzes how courts have adjudicated cases in which the debtor seeks to reopen a case to comply with the financial management course requirements. Her empirical study demonstrates the challenges debtors face in taking their financial management course and the difficulties counsel have in ensuring compliance. Professor Bartell concludes with “modest proposals” to fix the problem: amendments to the forms for the notice of chapter 7 bankruptcy case to include and explain the deadline to file the certificate for a financial management by date certain; a requirement that the panel chapter 7 trustee tell a debtor of the deadline to file the financial management course certificate at the first meeting of creditors; and a rule amendment that would send out the notice to the debtor to file the financial management certificate earlier than the Bankruptcy Rules currently require. To read Professor Bartell’s article now, click here.

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