Document Type

Article

Publication Date

2017

Keywords

Status preservation, Debtors' status

Organizational Units

Sturm College of Law

Abstract

This Article examines the tendency of current American bankruptcy law to maintain the social and economic status of middle- and upper-class debtors while doing much less to assist poorer debtors and non-debtors. In doing so, it examines and categorizes various aspects of statutory and case law that allow debtors to preserve their prior economic status. After reconstructing and rebutting the normative arguments offered in defense of these provisions, it suggests a proposal for reforming bankruptcy law to emphasize goals other than the maintenance of economic status. Part I of the Article begins by describing ways in which current bankruptcy law serves to help debtors retain their pre-bankruptcy social and economic status, with a focus on exemptions from the bankruptcy estate. Part II then critically evaluates two types of arguments that defend the goal of helping debtors retain their prior social and economic status: one appeals to debtors' claims, while the other appeals to societal interests. Part III proposes reorienting bankruptcy law away from the preservation of debtors' past status and toward three interlocking goals: economic adequacy for debtors, economic freedom for debtors, and equal treatment for debtors and non-debtors. It also proposes some ways that this reorientation might be achieved.

Publication Statement

Originally published as Govind Persad, Bankruptcy Beyond Satus Maintenance, 11 Va. L. & Bus. Rev. 451 (2017).

Copyright is held by the author. User is responsible for all copyright compliance.



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