Emory Bankruptcy Developments Journal

Volume 35Issue 1
A Tribute to The Honorable Mary F. Walrath

Stern Claims and Article III Adjudication—The Bankruptcy Judge Knows Best?

Laura B. Bartell | 35 Emory Bankr. Dev. J. 13 (2019)

This excellent Article by Professor Laura B. Bartell explores how Stern claims have been treated since the Supreme Court decided Arkison and Wellness. This Article studies these claims by analyzing 495 cases in which a bankruptcy court mentioned “Stern v. Marshall,” cited Arkison, or cited Wellness. From this study, the Article concludes that bankruptcy courts find few core proceeding that they decide are covered by Stern and thus are beyond the bankruptcy court’s constitutional power to decide. This Article further concludes that even when a bankruptcy court questions its authority to hear a matter, the litigants will usually consent to the court’s judgment. Where litigant consent is not present, this Article finds that district court almost always adopts the bankruptcy court’s finding of fact and conclusion of law.

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Not a Bank, Not a SIFI; Still Too Big to Fail

Oscar Couwenberg & Stephen J. Lubben | 35 Emory Bankr. Dev. J. 53 (2019)

This outstanding Article by Professors Oscar Couwenberg and Stephen J. Lubben explores the financial collapse of too big to fail non-bank firms. The Article analyzes the level of government involvement in various large insolvencies around the world, placing each case into one of four categories: standard bankruptcies, bankruptcies with government support, ad hoc solutions, and full bailouts. After considering the benefits of each approach, this Article concludes that either a standard bankruptcy procedure or a bankruptcy procedure with government support is preferable to an ad hoc solution or a full bailout. The authors artfully balance the moral hazard associated with the “too big to fail” argument, and present a forceful argument for a bankruptcy procedure that is capable of handling extremely large debtors.

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The Enforcement of Consensual Foreign Plans of Reorganization in Chapter 15

Thiago Braga Junqueira | 35 Emory Bankr. Dev. J. 81 (2019)

This intriguing Article by Thiago Braga Junqueira argues that variations in the voting requirements between domestic and foreign bankruptcy regimes should not prevent an American bankruptcy court from giving deference to foreign courts’ confirmations of plans of reorganization. While the U.S. Bankruptcy Code has endorsed a supermajority threshold for a chapter 11 plan to be consensually confirmed, many foreign bankruptcy regimes have lower thresholds. The author persuasively contends that deference to a foreign main proceeding is consistent with the goals and purposes of the Modern Law on Cross-Border Insolvency and chapter 15. The Article concludes by calling for comity and deference when a foreign plan is confirmed at less than the American supermajority threshold.

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