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Winter Issue of the ABI Law Review Takes a Closer Look at the New Bankruptcy Law

Contact:  John Hartgen
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WINTER ISSUE OF THE ABI LAW REVIEW TAKES A CLOSER LOOK AT THE NEW BANKRUPTCY LAW

FEBRUARY 8, 2006, Alexandria, Va. — The American Bankruptcy Institute (ABI) announces the publication of the Winter 2005 issue of the ABI Law Review (Volume 13, No. 2), featuring 15 articles taking an in-depth look at the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) from leading academics and practitioners. Beyond merely descriptive pieces, these articles break apart the language and legislative history of the new law to give fresh insight into how BAPCPA will work in practice. The issue is dedicated to the late Chief Judge Conrad B. Duberstein and includes two tribute articles.

Prof. Charles J. Tabb of the University of Illinois writes on the background behind the seven amendments to the law of preferences introduced by BAPCPA and how they might be applied to reduce litigation.

In “Rash and Ride-Through Redux: The Terms for Holding on to Cars, Homes and Other Collateral under the 2005 Act,” Prof. Jean Braucher of the University of Arizona explores the questions left unanswered by BAPCPA pertaining to the ride-through of real property in a bankruptcy proceeding.

Looking at the new involuntary filing provision of BAPCPA of an individual chapter 11 case, an article by Robert Keach of Bernstein, Shur, Sawyer & Nelson PA (Portland, Maine) assesses the constitutional arguments under the Thirteenth Amendment against involuntary filings.

Prof. Jay Westbrook of the University of Texas writes on the newly created chapter 15 filing, which addresses cross-border bankruptcies and tries to answer the question of whether a foreign discharge will be recognized in the U.S.

In an article titled “”Enron and the New Disinterestedness- The Foxes Are Guarding the Henhouse,” Dean Nancy Rapoport of the University of Houston draws on her work on the Enron bankruptcy to attack BACPCA’s changes to the “disinterestedness standard,” which previously ruled out certain investment bankers from advising or working for a company in bankruptcy in which they may have a conflict of interest.  

Hank Hildebrand of Lassiter, Tidwell & Hilldebrand PLLC (Nashville, Tenn.) analyzes the complicated new notice requirements in Section 342 of BACPCA and finds them both cumbersome and potentially unmanageable.

Profs. Karen Gross of the New York Law School and Susan Block-Lieb of Fordham University examine the new counseling and debtor education requirements for a consumer to follow prior to filing for bankruptcy and suggest standards for monitoring credit counselors providing the services to consumers.

The new “means test” of the BACPCA will make it harder and more expensive for low-income debtors to file for bankruptcy, which Dean Peter Alexander of Southern Illinois University writes will nullify the benefits of the “domestic support obligations” within the law. Alexander argues that this will be especially harmful to women and children.

Lawrence Ahern of Greenebaum Doll & McDonald PLCC (Nashville, Tenn.) looks at what remains of the homestead and asset-protection exemption after the new provisions of BAPCPA.

Prof. David Epstein of Southern Methodist University and Lisa Normand considers the state of non-monetary obligations, such as an unexpired lease of real property, and defaults after BAPCPA.

In his article titled “Financial Contracts and the New Bankruptcy Code: Insulating Markets from Bankrupt Debtors and Bankruptcy Judges,” Prof. Edward Morrison of Columbia Law School and attorney Joerg Riegel break down the financial contracts title of the new law.

The new “means test” nearly eliminates the role of a bankruptcy judge in determining whether to dismiss a chapter 7 filing over whether a debtor can pay their creditors, according to an article by Profs. Marianne Culhane and Michaela White of Creighton University.

Profs. Jack Williams of Georgia State University and Jacob Todres of St. John’s University examine the tax consequences of post-petition income as property of the estate for individual debtors in a chapter 11 filing;

The article “Garnishment Restrictions and the Involuntary Chapter 11: Rethinking Kokoszka in a Means Test World,” written by Prof. G. Ray Warner of St. John’s University looks at the application of garnishment restrictions to bankruptcy cases and the involuntary chapter 11.

Prof. Ralph Brubaker of the University of Illinois examines the new amendments of the BAPCPA that make certain corporate fraud debs nondischargeable.

Also included are case notes, an LL.M. thesis from one of St. John’s graduate bankruptcy students, and an analysis of the Supreme Court¹s Rousey decision by Prof. John Hennigan.

ABI’s Law Review, published in conjunction with St. Johns University School of Law in Jamaica, N.Y., is among the most respected scholarly publications in the bankruptcy community. The Law Review was cited by the U.S. Supreme Court in last year’s Till decision, in both the majority and minority opinions. Distributed to all ABI members as a benefit of membership, the ABI Law Review has the largest circulation of any bankruptcy law review. Past issues of the Law Review have focused on international insolvency, single-asset cases, high-tech and e-commerce bankruptcies, consumer bankruptcy, the revised Article 9 of the Uniform Commercial Code and other topics. Past issues can be viewed at http://www.abiworld.org/Content/NavigationMenu/Publications/ABI_Law_Review/ABI_Law_Review.htm by ABI members. Copies are available for purchase through Thomson West's online publications catalog or by calling (800) 328-9352.

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ABI is the largest multi-disciplinary, nonpartisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI membership includes more than 11,000 attorneys, accountants, bankers, judges, professors, lenders, turnaround specialists and other bankruptcy professionals providing a forum for the exchange of ideas and information. For additional information on ABI, visit www.abiworld.org. For additional conference information, visit http://www.abiworld.org/conferences.html.