- 1. BankruptcyPROFESSOR LISA SMITH-BUTLERADVANCED LEGAL RESEARCHFALL 2014
2. Overview The U.S. Constitution, Art.1, Sec. 8, Cl. 4, gave the U.S. Congress the right toestablish uniform laws of bankruptcy. Despite this grant of power, therewas little in the way of uniform legislation for almost two centuries. In 1898, the U.S. Congress passed the first attempt at uniform bankruptcylegislation, the Bankruptcy Act of 1898, 30 Stat. 545 (1898). In 1978, Congress decided to again reform the by now patched andpiecework bankruptcy legislation and passed a new uniform system ofbankruptcy codification, the Bankruptcy Act of 1978, 92 Stat. 2549 (1978).The current provisions of the Bankruptcy Code can be located at Title 11of the United States Code. 3. The Constitution 4. The Law Currently in Force: The Code 5. The Law As Initially Passed: SessionLaws & the Statutes at Large 6. Bankruptcy Amendments Since 1978, the Bankruptcy Code has been amended several times,including: Bankruptcy Amendments and Federal Judgeship Act of 1984 (98 Stat. 333) inorder to ensure constitutionality of the act after the U.S. Supreme Court decisionin Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50(1982); The Bankruptcy Judges, United States Trustees and Family Farmer BankruptcyAct of 1986 (100 Stat. 3090); & Bankruptcy Reform Act of 1994 (108 Stat. 4106). 7. Recent Amendment With SubstantialChanges In 2005, the U.S. Congress passed and President Bush signed theBankruptcy Abuse and Consumer Protection Act of 2005. Published at 119 Stat. 23 (2005), this new law substantially changesbankruptcy law, making it more difficult for consumers to receivedischarges from debts. The official code citation is at 11 U.S.C. 101-1307 (2012.) 8. Bankruptcy: Title 11 of the UnitedStates Code 9. The Bankruptcy Courts 10. Types of Bankruptcy The Bankruptcy Code provides for bankruptcy relief for particular types ofdebtors. Thus: Chapter 7 is a straight liquidation for individuals and businesses; Chapter 9 provides for the reorganization of municipalities; Chapter 11 provides for the reorganization of businesses; Chapter 12 provides for the reorganization of the family farmer; & Chapter 13 provides for the reorganization of individuals. 11. International Bankruptcies Chapter 15 is the U.S. domestic adoption of the Model Law on Cross-Border Insolvency promulgated by the United Nations Commission onInternational Trade Law ("UNCITRAL") in 1997, and it replaces section 304 ofthe Bankruptcy Code. Because of the UNCITRAL source for chapter 15, theU.S. interpretation must be coordinated with the interpretation given byother countries that have adopted it as internal law to promote a uniformand coordinated legal regime for cross-border insolvency cases. Fromthe U.S. Courts web site @http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Chapter15.aspx. 12. Bankruptcy: Federal or State? While the right to make uniform bankruptcy laws is reserved for the U.S.Congress, state law is also involved. 11 U.S.C. Sec. 522 acknowledges this, indicating that debtors may exemptproperty from collection and distribution to creditors if that property isexempted by a states legislative provisions. Most states have elected to provide their own exemptions rather thanrelying upon the federal exemptions provided by the Bankruptcy Code.South Carolina has its own exemptions which can be located atSouth Carolina Code of Laws 15-41-30 (1976 & Supps.) 13. Bankruptcy: Federal or State? In addition to ascertaining whether federal or state propertyexemptions apply, state law is also involved via UCC articles3 and 9, the secured transaction provisions. When an individual or business files for bankruptcy, creditorsjockey for the most advantageous position. The securedcreditor (UCC) has status over an unsecured creditor. Thusthe status of creditors can be said to be affected by statelaw, assuming that a state has adopted and enacted theUniform Commercial Code. 14. Where Can I Locate Bankruptcy LegalMaterials? As with all American law, bankruptcy legal materials consists of bothprimary sources of law and secondary sources of law. Primary sources include: statutes regulations Cases. Secondary sources of law include treatises, encyclopedias, andperiodicals. 15. Statutes Bankruptcy law is essentially federal law. It is legislatively created byCongress rather than being created by judges as was the common law. The Bankruptcy Code can be found in Title 11 of the U.S.C. State law has very limited application in terms of bankruptcy law.Generally state law is applicable only in terms of property exemptions andthe Uniform Commercial Code provisions for secured creditors. 16. Federal Bankruptcy Statutes 17. South Carolina Code of Law In South Carolina, theSouth Carolina Code of Laws 15-41-35 (1976 & Supps.)specifically excludes the federal bankruptcyexemptions, indicating that No individual may exemptfrom the property of the estate in any bankruptcyproceeding the property specified in 11 U.S.C. Section522(d) except as may be expressly permitted by thischapter or by other provisions of law of this State. 18. South Carolina Code of LawsSouth Carolina Code of Laws 36-9-301 (1976 & and its provisions provide for theperfection of a security interest in anitem for secured creditors. 19. Regulations Federal regulations for bankruptcy arescattered throughout the C.F.R. (Code ofFederal Regulations).Many regulations pertaining to bankruptcy canbe found in titles 17, 26, and 28 of the C.F.R. 20. Cases After 1980, bankruptcy cases can be found in the Bankruptcy Reporter,part of the West National Reporter Series. To access cases by subject withthis series, use the Bankruptcy Digest. Colliers Bankruptcy Cases, 2d Series provides access to the full text ofbankruptcy opinions from 1978 onwards. The series concludes with acumulative index that allows searching by case name, code section, orbankruptcy rule. A citator service is also provided. CCH also publishes the Bankruptcy Law Reporter which provides the fulltext of bankruptcy opinions. Prior to 1980, you can locate bankruptcy decisions in the traditionalmanner discussed in earlier classes. 21. Bloomberg Law 22. Lexis Advance 23. West: Bankruptcy Reporter 24. WestlawNext 25. Other Resources Bloomberg BNA CCH Internet Periodicals Treatises 26. Bloomberg BNA 27. CCH 28. Internet American Bankruptcy Law Institute athttp://www.abiworld.org/ Bankruptcy Law at Cornells Legal Information Instituteat http://www.law.cornell.edu/topics/bankruptcy.html Bankruptcy Law at Findlaw athttp://www.findlaw.com/01topics/03bankrtupcy/index.html United States Trustee Office athttp://www.usdoj.gov/ust/ 29. Periodicals American Bankruptcy Institute Law Review American Bankruptcy Law Journal Emory Bankruptcy Developments Journal Journal of Bankruptcy Law & Practice 30. Treatises, Loose Leafs & Hornbooks Bankruptcy and Related Law in a Nutshell by David Epstein, 8th ed., KF 1501 .Z9E67 (2013.) Bankruptcy Forms and Practice by Asa S. Herzog, 9th ed., KF 1527 .H45 (2010 - .) Bankruptcy Law: Principles, Policies and Practice by Charles Tabb & RalphBrubaker, 3rd ed., KF 1524 .T32 (2010.) Bankruptcy by David Epstein, et. al., KF 1524 .E67 (1993.) Bankruptcy Practice Handbook by Rosemary Williams, 2nd ed., KF 1527 .W542(1995 - .) Collier Bankruptcy Practice Guide by Asa S. Herzog and Lawrence P. King, KF1524. C36 (1981- .) Principles of Bankruptcy Law by David Epstein and Steve Nickles, KF 1524 .E672007 31. Questions? Check out Professor Pearl Goldmans article, A Guide to ResearchingBankruptcy Law on the Internet at 8 J. Bankr. L. & Prac. 449 (1999.) Names to remember: Collier, Epstein, Norton Contact the Reference Desk.