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The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow 2019 University of Michigan Law School

The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow

Michigan Journal of International Law

In this study, I describe three important articles in the IRJ model law and discuss their development, drawing in part upon my experience as a delegate to UNCITRAL Working Group V. In doing so, I want to situate these developments within the broader discussions of international law and international relations theory regarding soft law. Doing so will both vindicate and puzzle some of the conventional understanding of how soft law instruments tend to function, although some of the conclusions must necessarily be conjectural at this stage.


A Fresh View On The Hard/Soft Law Divide: Implications For International Insolvency Of Enterprise Groups, Irit Mevorach 2019 University of Nottingham

A Fresh View On The Hard/Soft Law Divide: Implications For International Insolvency Of Enterprise Groups, Irit Mevorach

Michigan Journal of International Law

This Article proceeds as follows. Part I provides a discussion of the relevant background concerning the nature of hard and soft law. It notes the growing importance and advantages of so-called soft law, which can in fact exhibit characteristics of hard law and can be more effective in resolving complex international law problems. Part II unearths the challenges in reaching international agreements on hard instruments concerning the cross-border insolvency of groups. Against this backdrop, Part III evaluates and contrasts the EIR and the MLG. It highlights the strength of the MLG (a soft law instrument), especially when compared with the ...


Fighting The Undead: Why States Should Use Forced Vesting To Kill Zombie Mortgages, Roman Ibragimov 2019 Boston College Law School

Fighting The Undead: Why States Should Use Forced Vesting To Kill Zombie Mortgages, Roman Ibragimov

Boston College Law Review

Following the financial crisis, many home mortgage borrowers found themselves living in properties encumbered by debt that far exceeded their value. The result was an increase in mortgage default rates, followed by a wave of foreclosures as lenders scrambled to minimize the financial damage to their investments. From the wreckage, a new creature emerged that threatened to devastate borrowers who believed that foreclosure was their chance for a fresh start: the zombie mortgage. With a spike in lenders failing or declining to foreclose on properties, borrowers were unexpectedly facing an unwanted burden of homeownership that would cause them and their ...


A Means Test At Odds With Itself: The Secured Debt Expense In Chapter 7 Consumer Bankruptcy Cases After The Supreme Court’S Decision In Lanning And Ransom, Roma Perez 2019 Shepard Broad College of Law, Nova Southeastern University

A Means Test At Odds With Itself: The Secured Debt Expense In Chapter 7 Consumer Bankruptcy Cases After The Supreme Court’S Decision In Lanning And Ransom, Roma Perez

University of Miami Business Law Review

No abstract provided.


The Looming Chapter 9 Battle Over State Protection Of Vested Public Employee Pension Benefits, Mark S, Kaufman, Summer B. Chandler 2019 McKenna Long & Aldridge LLP

The Looming Chapter 9 Battle Over State Protection Of Vested Public Employee Pension Benefits, Mark S, Kaufman, Summer B. Chandler

Summer Chandler

"For years, observers have warned of the looming threat of unfunded pension liabilities. Some dubbed the danger the “pension tsunami,” and it has hit an increasing number of U.S. cities, including Vallejo, Stockton and San Bernardino in California and the city of Detroit, which have sought chapter 9 relief in bankruptcy court.1 Despite the attention given to these cases, chapter 9 filings are relatively scarce, and many significant issues remain to be resolved by the courts. One unanswered question is whether a municipal debtor in bankruptcy can propose to pay its pension debt2 less than in full ...


Is It Fair To Discriminate In Favor Of Pensioners In A Chapter 11 Plan?, Summer B. Chandler 2019 Concordia University School of Law, Boise ID

Is It Fair To Discriminate In Favor Of Pensioners In A Chapter 11 Plan?, Summer B. Chandler

Summer Chandler

“A number of U.S. cities are plagued with debt obligations that cannot be met. As municipalities1 have turned to chapter 9 protection to ease their financial burdens, various creditor constituencies have found themselves pitted against each other as they realize that they might be forced to share a finite amount of assets and funds that are insufficient to cover all of the a municipality’s debts. The ultimate goal of a chapter 9 filing is the confirmation of an adjustment plan that implements a feasible and comprehensive restructuring of a municipality’s obligations. A municipality’s proposed plan ...


Maybe Taxes Aren't So Certain: What Is "Fair And Equitable" In A Chapter 9 Plan?, B. Summer Chandler, Mark S. Kaufman 2019 Concordia University School of Law, Boise ID

Maybe Taxes Aren't So Certain: What Is "Fair And Equitable" In A Chapter 9 Plan?, B. Summer Chandler, Mark S. Kaufman

Summer Chandler

"Many U.S. cities and other municipalities are struggling under crippling financial demands. Buckling under the financial strain, a number of municipalities are considering an option that, just a few short years ago, was almost unheard of—filing for bankruptcy protection. Assuming that eligibility requirements are met, a municipality1 may seek bankruptcy protection under chapter 9 of title 11 of the Bankruptcy Code. Historically, chapter 9 filings have been rare, with typically less than 10 such filings annually.2 In recent months, however, a number of chapter 9 cases have been filed.3 In addition to the rise in ...


It’S All Going To Pot Is Relief Available For Debtors In The Marijuana Business?, Summer B. Chandler 2019 Concordia University School of Law, Boise ID

It’S All Going To Pot Is Relief Available For Debtors In The Marijuana Business?, Summer B. Chandler

Summer Chandler

"Twenty-three states and the District of Columbia authorize the use of marijuana in some form for medical purposes.1 The fact that almost half of all U.S. states now permit medical marijuana use is significant, particularly in light of the fact that close to half of these jurisdictions have legalized the use of marijuana in the last five years.2 In addition, in the past three years, four states and the District of Columbia have legalized marijuana for recreational use.3 Despite the fact that many states have legalized the cultivation, sale and use of marijuana, these actions remain ...


Business Law Bulletin, Spring 2019, 2019 University of Maryland Francis King Carey School of Law

Business Law Bulletin, Spring 2019

Business Law Bulletin

No abstract provided.


Hedge Funds In The Periphery: An Analysis Of Structures Influencing Fund Behavior In The Icelandic And Cypriot Financial Crises, Jameson K. Mah 2019 University of Pennsylvania

Hedge Funds In The Periphery: An Analysis Of Structures Influencing Fund Behavior In The Icelandic And Cypriot Financial Crises, Jameson K. Mah

Undergraduate Economic Review

Hedge funds are often viewed from a positive or negative lens in the public and academic forum. However, both of these perspectives neglect structuralist factors. This paper analyzes the effect of these antecedent economic, political, and legal structures. I argue that these structures are at the root of hedge fund behavior, particularly during financial crises. The financial crises of two peripheral countries, Iceland and Cyprus, are used as case studies to illustrate how hedge fund involvement diverges as a result of structural factors.


The Lehman Brothers Bankruptcy G: The Special Case Of Derivatives, Rosalind Z. Wiggins, Andrew Metrick 2019 Yale University

The Lehman Brothers Bankruptcy G: The Special Case Of Derivatives, Rosalind Z. Wiggins, Andrew Metrick

Journal of Financial Crises

When it filed for bankruptcy protection in September 2008, Lehman Brothers was an active participant in the derivatives market and was party to 906,000 derivative transactions of all types under 6,120 ISDA Master Agreements with an estimated notional value of $35 trillion. The majority of Lehman’s derivatives were bilateral agreements not traded on an exchange but in the over-the-counter (OTC) market. Because derivatives enjoyed an exemption from the automatic stay provisions of the U.S. Bankruptcy Code, parties to Lehman’s derivatives could seek resolution and self-protection without the guidance and restraint of the bankruptcy court. The ...


The Lehman Brothers Bankruptcy F: Introduction To The Isda Master Agreement, Christian M. McNamara, Andrew Metrick 2019 Yale University

The Lehman Brothers Bankruptcy F: Introduction To The Isda Master Agreement, Christian M. Mcnamara, Andrew Metrick

Journal of Financial Crises

When Lehman Brothers Holdings, Inc. (LBHI) sought Chapter 11 protection, the more than 6,000 counterparties with which its subsidiaries had entered into over 900,000 over-the-counter (OTC) derivatives transactions faced the question of how best to respond to protect their interests. The existence of standardized documentation developed by the International Swaps and Derivatives Association (ISDA) for entering into such transactions meant that the counterparties likely thought that they were dealing with a well-defined and robust set of options in answering this question. Yet, in practice, the resolution of Lehman’s OTC derivatives portfolio ended up being less orderly than ...


The Lehman Brothers Bankruptcy E: The Effects On Lehman’S U.S. Broker-Dealer, Rosalind Z. Wiggins, Andrew Metrick 2019 Yale University

The Lehman Brothers Bankruptcy E: The Effects On Lehman’S U.S. Broker-Dealer, Rosalind Z. Wiggins, Andrew Metrick

Journal of Financial Crises

Lehman’s U.S. broker-dealer, Lehman Brothers Inc. (LBI), was excluded from the parent company’s bankruptcy filing on September 15, 2008, because it was thought that the solvent subsidiary might be able to wind down its affairs in a normal fashion. However, the force of the parent’s demise proved too strong, and within days, LBI and dozens of Lehman subsidiaries around the world were also in liquidation. As a regulated broker-dealer, LBI was required to comply with the Securities and Exchange Commission financial-responsibility rules for broker-dealers, including maintaining customer assets separately. However, the corporate complexity and enterprise integration ...


The Lehman Brothers Bankruptcy A: Overview, Rosalind Z. Wiggins, Thomas Piontek, Andrew Metrick 2019 Yale Program on Financial Stability, Yale School of Management

The Lehman Brothers Bankruptcy A: Overview, Rosalind Z. Wiggins, Thomas Piontek, Andrew Metrick

Journal of Financial Crises

On September 15, 2008, Lehman Brothers Holdings, Inc., the fourth-largest U.S. investment bank, sought Chapter 11 protection, initiating the largest bankruptcy proceeding in U.S. history. The demise of the 164-year old firm was a seminal event in the global financial crisis. Under the direction of its long-time Chief Executive Officer Richard Fuld, Lehman had been very successful pursuing a high-leverage, high-risk business model that required it to daily raise billions of dollars to fund its operations. Beginning in 2006, Lehman began to invest aggressively in real-estate-related assets and soon had significant exposures to housing and subprime mortgages, just ...


Puerto Rico V. Franklin California Tax-Free Trust, Brittney E. Ciarlo 2019 Ohio Northern University Pettit College of Law

Puerto Rico V. Franklin California Tax-Free Trust, Brittney E. Ciarlo

Ohio Northern University Law Review

No abstract provided.


Bankruptcy, Morality & Student Loans: A Decade Of Error In Undue Hardship Analysis, Linn White 2019 Thomas Jefferson School of Law

Bankruptcy, Morality & Student Loans: A Decade Of Error In Undue Hardship Analysis, Linn White

Ohio Northern University Law Review

In an effort to stem perceived abuses of the bankruptcy system, Congress adopted a rule in 1976 that created a time-based conditional limitation on the discharge of federally guaranteed student loans in bankruptcy. The only means of overcoming the limitation was the showing of an “undue hardship,” which was undefined by the legislature. This gave rise to two judicially created, means-based tests that were used to determine if the debtor was attempting to abuse the bankruptcy system. By the time the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was enacted, the time-based restriction was gone, leaving only ...


Exploring The Boundaries Of Municipal Bankruptcy, Christopher J. Tyson 2019 Louisiana State University Law Center

Exploring The Boundaries Of Municipal Bankruptcy, Christopher J. Tyson

Christopher J. Tyson

Municipal fiscal insolvency has become the central challenge facing American cities. Municipal fiscal insolvency is the result of many factors, including risk taking, fiscal mismanagement, corruption, and the absence of political will to make hard choices. There are also structural factors at play-specifically, local government organization and the fiscal constraints states place on their subdivisions play a significant role in the ability of municipalities to achieve sustainability and growth. These factors are rarely included in the discussion on municipal fiscal insolvency, and understandably so. It is hard to determine the role that local government organization plays in undermining the fiscal ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Survival Of The Trademark License: In Re Tempnology And Contract Rejection In Bankruptcy, Avery Minor 2019 Boston College Law School

Survival Of The Trademark License: In Re Tempnology And Contract Rejection In Bankruptcy, Avery Minor

Boston College Law Review

On January 12, 2018, the United States Court of Appeals for the First Circuit held, in In re Tempnology, that forcing specific performance of a trademark license after a contract rejection in a bankruptcy case would be contrary to the plain-language of Section 365(n) of the Bankruptcy Code and conflict with the goal of providing debtors with a “fresh start.” In so doing, the First Circuit joined the Fourth Circuit in a split with the Seventh Circuit, which has characterized a contract rejection as a breach in the context of non-bankruptcy law, therefore not extinguishing any trademark license rights ...


Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben 2019 Chicago-Kent College of Law

Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben

Chicago-Kent Law Review

Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.

This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right ...


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