Emory Bankruptcy Developments Journal

Volume 35Issue 2
The Sixteenth Annual Emory Bankruptcy Developments Journal Symposium
Symposium

Introduction

James R. Risener III | 35 Emory Bankr. Dev. J. 307 (2019)

Each year the Emory Bankruptcy Developments Journal hosts a Symposium on important and prescient issues in bankruptcy law. This year, on February 21, 2019, the Journal hosted its Sixteenth Annual Symposium. The Symposium featured two panels, one consumer-focused and the other corporate-focused, and included the Emory Bankruptcy Developments Journal’s first ever keynote speaker, the Honorable Mary Grace Diehl.

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Consumer Bankruptcy Panel--Tuition Clawback: Whose Money Is It, and What Is It Worth?

Elizabeth Austin, Mark Duedall, Neil Gordon, Michael Imber, Lynne Xerras | 35 Emory Bankr. Dev. J. 309 (2019)

The Consumer Panel considered the newest arguments, decisions, and theories on tuition clawback. Discussion ranged from the definition of reasonably equivalent value to the use of 529 plans as a shield against clawback attempts. Though the questions raised in the context of tuition clawback have generally evaded answer, the Consumer Panel elucidated many of the murky decisions and definitions surrounding the topic.

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Keynote Address

The Honorable Mary Grace Diehl | 35 Emory Bankr. Dev. J. 339 (2019)

In the Emory Bankruptcy Development Journal’s first ever keynote address, the Honorable Mary Grace Diehl discussed the evolution of the Bankruptcy Code forty years after its passage. Judge Diehl shared her experiences as a new associate interacting with a freshly minted Bankruptcy Code and described how the Code has changed in unique and unexpected ways.

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Corporate Bankruptcy Panel--Chapter 15 Choice of Law: How Far Do I Need to Go to Get My Money Back?

Ameneh Bordi, Scott Cousins, Andrea Hartley, Natalie Levine, James R. Risener III | 35 Emory Bankr. Dev. J. 345 (2019)

The Corporate Panel explored the issues surrounding choice of law in chapter 15 avoidance actions. Chapter 15 choice of law theory is generally split into two camps: the Law of the Forum and the Center of Gravity. From describing the roles of the litigants in these suits to strategies for avoiding avoidance actions altogether, the Corporate Panel explained in practical terms the application of these theories and their real world consequences.

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Articles

Beyond the Bankruptcy Code: A New Statutory Bankruptcy Regime for Tribal Debtors

Laura N. Coordes | 35 Emory Bankr. Dev. J. 363 (2019)

This outstanding Article by Professor Laura N. Coordes discusses the difficulty tribal debtors experience when dealing with financial distress. This Article reveals how and why the Bankruptcy Code is a poor fit for tribal debtors. Instead, this Article proposes that Congress enact a new statutory regime to provide structured debt relief for tribal entities. This Article analyzes analogous situations in which Congress looked beyond the Bankruptcy Code to provide debt relief when the Bankruptcy Code was unable to do so.

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Three Against Two: On the Difference Between Property and Contract and the Example of Deposit Accounts in Bankruptcy

Jeanne L. Schroeder & David Gray Carlson | 35 Emory Bankr. Dev. J. 417 (2019)

This excellent Article by Professors Jeanne L. Schroeder And David Gray Carlson explores the tension between Citizen’s Bank v. Strumpf, 516 U.S. 16 (1995) and later amendments to the Uniform Commercial Code that made deposit accounts collateral for the depositary bank maintaining the account. The Article discusses the question of whether the Uniform Commercial Code amendments could be read to have overruled the Supreme Court. In answering this question in the negative, this Article argues that the Justice Scalia was vindicated by the text of the Uniform Commercial Code and that the 2000 amendments had not overruled the Supreme Court’s decision in Stumpf.

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Comments

Student Loan Discharge: Reevaluating Undue Hardship Under a Presumption of Consistent Usage

Ashley M. Bykerk | 35 Emory Bankr. Dev. J. 509 (2019)

An increasing number of Americans are suffering from financial distress caused by educational debt. Some of those individuals seek relief from that distress through the bankruptcy system, where they must establish that repaying their educational debt would impose an undue hardship in order to obtain a discharge of such debt. The author focuses on § 523(a)(8) of the U.S. Bankruptcy Code, which sets forth educational debt as an exception to bankruptcy discharge unless the repayment of student loan obligations imposes an “undue hardship.” The author concludes that the primary inquiry into a debtor’s undue hardship claim must focus on the debtor’s current financial circumstances without undue regard to pre-bankruptcy conduct or assurance of persisting financial distress.

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Unbalanced Bargaining: Trump Entertainment Resorts Unite Here Local 54 and Expired Collective Bargaining Agreements Under § 1113

Adam E. Ekbom | 35 Emory Bankr. Dev. J. 547 (2019)

The author explores Trump Entertainment Resorts Unite Here Local 54, in which the Third Circuit considered, as an issue of first impression, whether a chapter 11 debtor-employer is able to reject the continuing terms and conditions of an expired collective bargaining agreement with its unionized employees under 11 U.S.C. § 1113. After analyzing this decision, the author argues that expired collective bargaining agreements are not subject to rejection or modification through § 1113. The author concludes by providing recommendations for judges, debtor-employers, and unions that attempt to balance the conflicting policy concerns surround bankruptcy and collective bargaining agreements.

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Rogue Committees or Rogue Judges: The Limits of a Bankruptcy Judge’s Authority to Disband Chapter 11 Committees

Mark D. Gensburg | 35 Emory Bankr. Dev. J. 601 (2019)

When confronted with a misbehaving chapter 11 committee, bankruptcy courts have a limited list of remedies available to preserve equity. Universally, courts may address committee misbehavior through the disallowance of the committee’s attorneys’ fees, or through a modification of the committee’s membership. Where these remedies are inadequate, a split has emerged amongst the courts as to whether bankruptcy judges have the authority to use the “judicial hammer” of disbanding a misbehaving committee. Looking to the history of chapter 11 committees and present-day examples of committee misbehavior, the author argues that when a committee is engaged in severe misfeasance or malfeasance, bankruptcy judges must have the power to disband the committee.

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A Fly in the Ointment: PROMESA’s Drafting Error in Section 314(b)(7)

Christine J. Joh | 35 Emory Bankr. Dev. J. 645 (2019)

When Congress amended the Bankruptcy Code in 1984, Congress precluded Puerto Rico from seeking bankruptcy relief under chapter 9. The author explores the history of this exclusion, the case Puerto Rico v. Franklin California Tax-Free Trust, and § 314(b)(7) of the Puerto Rico Oversight Management and Economic Stability Act. The author then concludes that § 314(b)(7) should be removed to resolve the dysfunction it creates.

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