Emory Bankruptcy Developments Journal

Volume 32Issue 1
A Tribute to Marjorie Girth

Introduction: A Tribute to Professor Marjorie L. Girth

Armstead C. Lewis | 32 Emory Bankr. Dev. J. 1 (2015)

Each year, the Emory Bankruptcy Developments Journal honors an individual who has made a significant impact on the field of bankruptcy law with the Distinguished Service Award for Lifetime Achievement. On April 2, 2015, the Emory Bankruptcy Developments Journal presented Marjorie Girth with the Seventeenth Annual Distinguished Service Award for Lifetime Achievement.

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Opening Remarks

Robert Schapiro | 32 Emory Bankr. Dev. J. 3 (2015)

Dean Robert Schapiro’s remarks honoring Marjorie Girth at the annual Emory Bankruptcy Developments Journal Banquet. Dean Schapiro highlighted Emory’s bankruptcy program, the Twelfth Annual Emory Bankruptcy Developments Journal Symposium held in February, and Marjorie Girth’s leadership and achievements in bankruptcy law.

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Introduction of Professor Marjorie L. Girth

Karen Gross | 32 Emory Bankr. Dev. J. 5 (2015)

Karen Gross’ remarks honoring Marjorie Girth at the annual Emory Bankruptcy Developments Journal Banquet highlighting Professor Girth’s leadership, achievements, and mentorship in bankruptcy law.

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Acceptance Remarks

Marjorie L. Girth | 32 Emory Bankr. Dev. J. 11 (2015)

Acceptance remarks of Marjorie Girth at the annual Emory Bankruptcy Developments Journal Banquet. Professor Girth shared several memorable highlights of her professional career, as well as her brief tenure at Emory Law School in 1991, where she served as Southeastern Bankruptcy Law Institute Distinguished Visiting Professor.

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Articles

Killing the Patient to Cure the Disease: Medicare’s Jurisdictional Bar Does Not Apply to Bankruptcy Courts

Samuel R. Maizel, Michael B. Potere | 32 Emory Bankr. Dev. J. 19 (2015)

The Social Security Act requires an exhaustion of administrative remedies prior to judicial review through 42 U.S.C. §§ 405(g) & (h). A hospital’s appeal from a claim of overpayment by the government can take years, forcing hospital closure due to a lack of continued Medicare payments. Historically, some bankruptcy courts, looking to legislative history, have found that they lack jurisdiction over Medicare claims prior to the exhaustion of administrative remedies. However, in In re Bayou Shores, SNF, LLC and In re Nurses’ Registry and Home Health Corp., the bankruptcy court found that under the plain language of § 405(h) it did have jurisdiction of Medicare claims. This Article argues that courts should continue to adopt a plain language interpretation of § 405(h), which is consistent with the purpose of the Code.

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The Risk-Shifting Effect of Business Bankruptcy: A Statutory Solution to Provide Additional Protections for Personal Guarantors of Debts by Closely-Held Business Ventures

Jason Gordon, Robert J. Landry, III | 32 Emory Bankr. Dev. J. 67 (2015)

Startups often require personal guarantors when securing credit relationships. Often, third parties enter into guarantee agreements unaware of the detrimental effect bankruptcy filing has on their rights. A primary bankruptcy protection goal is to shift risk associated with debt arrangements among interested parties to allow for the equitable distribution of assets among creditors of a bankrupt individual or entity. Filing for bankruptcy may increase risk to the guarantor beyond what he or she anticipated at the time of personally guaranteeing the debt. This Article explores the preference liability of personal guarantors of a closely held business in bankruptcy and makes a statutory proposal to remedy the inequitable risk-shifting effect of the bankruptcy of a closely-held business.

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Comments

State Contract Impairment Clauses and the Validity of Chapter 9 Authorization

Bradley Hull | 32 Emory Bankr. Dev. J. 87 (2015)

Chapter 9 requires states to authorize any municipal bankruptcy filing. However, most state constitutions have a provision similar to the Contract Clause of the U.S. Constitution that prohibits passing any “laws impairing the obligations of contracts.” The U.S. Supreme Court has foreclosed the argument that Chapter 9 bankruptcy violates the federal constitution. State courts have generally followed the Court’s jurisprudence in interpreting the contract clauses of their own constitution. The Court’s jurisprudence, however, is inconsistent with the text, purpose, and origin of the Contract Clause. This Comment argues that state courts should abandon this jurisprudence and adopt a much stricter interpretation of their own clause that is more in line with the Court’s earlier decisions. Under this stricter interpretation, states violate their constitutions’ contract impairment clauses by authorizing chapter 9 bankruptcy filings, except in the unlikely case that a municipality has no contractual obligations to impair.

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Bitcoin and Bankruptcy: Putting the Bits Together

Chelsea Deppert | 32 Emory Bankr. Dev. J. 123 (2015)

The classification and treatment of virtual currency, like bitcoin, under the Bankruptcy Code is unsettled. Because the Code affords greater protections to currencies than to commodities, bitcoin’s classification has far-reaching implications in the context of bankruptcy; however, no bankruptcy court has yet affirmatively ruled on bitcoin’s treatment. This Comment first explores what bitcoins are and the respective arguments for each classification in the currency versus commodity debate. Then, this Comment examines the current legal treatment of bitcoin and bitcoin-specific issues in bankruptcy. Finally, this Comment argues that bitcoin must be affirmatively classified and proposes a licensing solution to bitcoin’s classification; and then explores the effects this solution would have in bankruptcy.

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An Unworkable Result: Examining the Application of the Unfinished Business Doctrine to Law Firm Bankruptcies

John W. Edson | 32 Emory Bankr. Dev. J. 159 (2015)

While unfinished business claims have played a role in nearly every major law firm bankruptcy in the past ten years, the law remains unsettled. As major law firm bankruptcies become more prevalent, scholarly debate has centered on whether pending hourly fee arrangements should be included in a law firm’s bankruptcy estate. This Comment will advocate for the abolishment of unfinished business claims in the bankruptcy setting because these claims yield unworkable results under Sections 541, 363, and 362 of the Bankruptcy Code. Alternatively, this Comment will argue that including unfinished business in a law firm’s bankruptcy estate violates public policy by interfering with a client’s right to counsel. Finally, this Comment will provide practical guidance for firms wishing to contract around unfinished business claims.

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Let’s Talk About Guns: Should the Code Give Gun Owners Protection?

Armstead Lewis | 32 Emory Bankr. Dev. J. 197 (2015)

Although, the topic of firearms is often controversial and political, gun owners in the U.S. predominantly own firearms in a way that arguably allow firearms to be classified as “household goods” in Section 522(f)(1)(b) and be included in the list of items that fit within the term of “household goods” in Section 522(f)(4)(A) of the Bankruptcy Code. The recent proposals of the Protecting Gun Owners in Bankruptcy Acts of 2010, 2011, 2014, and 2015 make this a timely issue that should be addressed. The proposals of the Protecting Gun Owners in Bankruptcy Acts have requested that firearms be classified as “household goods” in Section 522(f)(4)(A). This Comment addresses why firearms have not been addressed in the Bankruptcy Code, discusses the proposed Protecting Gun Owners in Bankruptcy Acts, and examines if firearms should be listed within the term of “household goods” in Section 522(f)(4)(A) of the Code.

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The Non-Dischargeability of Private Student Loans: A Looming Financial Crisis?

Preston Mueller | 32 Emory Bankr. Dev. J. 229 (2015)

Unlike the vast majority of consumer debts owed to private lenders, educational loans made by private lending institutions are protected as non-dischargeable under Section 523(a)(8) of the Bankruptcy Code. Because most borrowers cannot shirk their obligations to private student lenders, even by filing for bankruptcy, lenders are willing to lend more in this context than with other dischargeable forms of debt; thus artificially inflating the market for higher education loans. This practice is becoming crucial to the health of our overall economy as student loans have become one of the largest forms of consumer debt in the United States, second only to mortgages. This Comment examines why private student lenders should not be afforded special protection under Section 523(a)(8), and then suggests that removing this protection and thus allowing the discharge of private student loans can help to deflate the growing higher education bubble.

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