Provides an overview of bankruptcy costs—traditionally divided between direct and indirect costs—and describes the process for overseeing bankruptcy costs, including a historical account of the legal structure. Describes the current system as haphazard such that the status quo is not entitled to any particular deference and is arguably overdue for a comprehensive reevaluation. Also, surveys the existing understanding of Chapter 11 costs.
Browse by title
You are looking at 41 - 50 of 89,925 items
John A.E. Pottow
Introduces the reader to the academic theories dominating transnational bankruptcy law and sets the stage for the explication of the UNCITRAL Model Law on Cross-Border Insolvency. Explores the Model Law and shows how its soft status and incremental nature enabled its embrace by multiple jurisdictions around the globe. Examines some of the important case law that has emerged under the Model Law and gauges the success of the instrument. Critiques new proposals emerging as the next wave of international insolvency reform to assess fit within the soft law approach and underlying academic theories.
The digital world poses threats to academic integrity, providing improved access and awareness of cheating products and services. Some of these phenomena, such as contract cheating and auto paraphrasing tools, have been the topic of research and debate in recent years. In contrast, computer hacking is a long-standing threat to academic integrity that has received very little attention in the academic integrity literature. This contrasts with other high-stakes fields such as banking, healthcare and gambling, where hacking has been a concern for researchers for decades. This chapter argues that cybersecurity is an essential element of academic integrity, especially in online and blended learning settings, and as such, research into academic integrity urgently needs to consider cybersecurity. This chapter also identifies methodologies and metaphors from cybersecurity that may assist academic integrity research more broadly.
Describes the bankruptcy regulation of the financial and control provisions of new debt incurred by a debtor (DIP financing), as a mechanism for addressing the liquidity problems associated with financial distress. Under this regime, the property- and rule -based scheme governing debt priority outside of bankruptcy is replaced by judicial discretion to authorize the terms of DIP financing on a case-by-case basis. While the bankruptcy statute and policy dictate that a DIP-financing arrangement be authorized only if it creates value by providing liquidity, bankruptcy courts face challenges in executing this objective. In addition, over the past couple of decades, new lenders have used non-financial debt terms to take significant control over the bankruptcy procedure, raising significant governance concerns. The chapter assesses the calls for reform in the judicial oversight of both financial and control provisions, particularly in the recent proposals of the ABI’s Chapter 11 Commission.
Mark J. Roe
Explains that favorable treatment of derivatives and financial repurchase agreements under bankruptcy law weakens market discipline during ordinary financial times and exacerbates financial failure during an economic downturn or financial crisis. Safe harbors for such instruments facilitate collateral runs and fire sales and encourage short-term financing, which benefit from such privilege. The purpose of the special treatment, containment of contagion, is not accomplished and the resulting risk is to inefficiently burden other creditors including the United States government, which serves as de jure or de facto guarantor of significant financial institutions.
The doctrine of direct effect was developed by the Court of Justice of the European Union. The Court held that binding provisions of primary and secondary EU law, which were unconditional and sufficiently precise, gave individuals under certain conditions the possibility to rely on them before national courts. This chapter examines one by one the different elements of the doctrine, in particular with regard to environmental law. It draws attention to recent developments in the jurisprudence of the Court concerning the principle of consistent interpretation which, it is argued, might make the direct effect doctrine superfluous. At the same time, the Court provided for increased possibilities for environmental organizations to have access to national courts; this evolution opens new ways to promote the enforcement of EU environmental law.
Discusses distress-triggered liabilities: contingent obligations of a corporate debtor that are likely to be triggered by the debtor’s own financial distress. Three common examples of such liabilities are loan default penalties, loan prepayment fees such as make-whole premiums, and intragroup guarantees. Because the risk that a distress-triggered liability will become payable correlates positively with the debtor’s insolvency risk, the incurring of the liability shifts expected losses onto the debtor’s general creditors. The result is an incentive-distorting value transfer from creditors to shareholders that generates the agency costs of debt. Bankruptcy courts could prevent these costs by subordinating distress-triggered claims to general creditor claims. Subordination would preserve the positive economic functions of distress-triggered claims, which in most instances require only that the claims be enforceable to the extent the debtor is solvent. A subordination rule would be consistent with both the purpose and the text of the Bankruptcy Code.
Based on the views of Keynes, this chapter presents the argument that distribution is a macroeconomic question, because a distribution of purchasing power heavily skewed towards the owners of capital assets creates a problem of deficient demand. Although Keynes was relatively indifferent to questions of inequality and distribution per se, he shed light on the under-consumption phenomenon of capitalism, theorizing about the impact of such a phenomenon on the occurrences of crises. Therefore, Keynes’s theory still rings true today, since modern under-consumptionist theory starts with a big increase in inequality, rekindling an interest in distributional issues. Indeed, new under-consumptionism attaches great causal importance to the financialization that serves to redistribute income from productive activities to non-productive finance. Overall, in Keynesian terms, a situation in which the inducement to invest is falling, but income inequality is rising, is the worst possible basis for both stability and growth. This is the situation in which we find ourselves today.
This chapter offers a critical review of the literature covering missing voices in organizations. It identifies diversity management as a missing theoretical paradigm in the literature on employee voice, and illustrates the cases of women, lesbian, gay, bisexual and transgender (LGBT) persons and ethnic minorities in the workplace. The chapter is structured as follows. First it examines the notion of employee voice and also explains various vehicles or mechanisms used to enable employee voice. It then describes the notions of missing voices and diversity and looks at the reasons why diverse employees’ voices may be missing, suppressed or ignored in organizations. The chapter then describes the missing voices of three diverse groups: women, ethnic minorities and LGBT persons. Finally, a summary of practitioners’ insights is offered, followed by practical and theoretical implications.
Chapter 5 employs a classical economic model to study employment incentives in relation to both current tax and benefits systems and a system including a Citizen’s Basic Income. The model is then questioned; research on consumption choices in relation to different levels of Citizen’s Basic Income and different funding methods is discussed; and whether a Citizen’s Basic Income would have a subsidy effect on wage levels is debated. A discussion of ‘club theory’ concludes that a foundational income should be treated as a public good and not as a club or private good. Differences between the apparently similar Negative Income Tax and Citizen’s Basic Income are discussed; relationships between inequality, tax, benefits, and efficiency, are explored; and the relationship between Citizen’s Basic Income and climate change is debated.