Professor Jason Kilborn, Resident Scholar, Fall 2011

Jason J. Kilborn is a professor of law at The John Marshall Law School in Chicago and is ABI's fall 2011 Robert M. Zinman Resident Scholar. He teaches bankruptcy, secured transactions and corporations, and is one of the nation's leading scholars on comparative law in consumer bankruptcy. He has written several pioneering articles and a book that examines developing consumer insolvency systems throughout Europe. He is also the lead scholar assisting The World Bank in an ongoing examination of legal regimes for the treatment of insolvency of natural persons. After graduating magna cum laude from the University of Michigan Law School, Prof. Kilborn clerked for a judge on the U.S. Court of Appeals for the Third Circuit before becoming an associate at Cleary, Gottlieb, Steen & Hamilton in New York, and later joined the Washington, D.C., office of Wilmer, Cutler & Pickering. He previously taught at Louisiana State University Law School and as a visiting professor at the University of Texas.

Resident Scholar Letter

It was my great pleasure to serve as ABI's Resident Scholar during the fall of 2011. I am deeply honored to have been invited to follow in the footsteps of many of my academic heroes who previously served as Resident Scholar, and it was a real joy to meet the faces (and personalities) behind the names of the absolutely top-notch ABI staff. My activities ranged broadly during my semester stint in Alexandria, as I both continued the traditional tasks of the Resident Scholar position and added some new ones.

As usual in the fall, a new Supreme Court October Term meant no new headline-grabbing opinions. Nonetheless, I did attend oral argument in a Supreme Court case involving the ability to mandate arbitration for consumer claims under the Credit Repair Organizations Act, and I conducted a podcast interview with former Resident Scholar and Georgia State law professor, Jack Williams, on his amicus brief in the most prominent bankruptcy case of the term (involving construction of section 1222 and whether capital gains taxes on post-petition farm sales in Chapter 12 are "incurred by the estate"). Another podcast interview offered me unique access to a conversation with Sir John Chadwick, a judge on the Dubai International Financial Centre Courts and the special tribunal set up to deal with issues associated with the financial distress of Dubai World. My final podcast profiled the so-called "control fraud" theory of UMKC economics and law professor Bill Black, especially the theory's implications for understanding the causes of and potential remedies for the mortgage meltdown.

Despite the lack of Supreme Court activity, media inquiries continued to be a staple source of my work, as questions rolled in from around the country on a range of diverse issues. The bankruptcy of solar manufacturing company Solyndra not long after receiving a large government-guaranteed loan attracted significant media attention, as did the surprising ebb of consumer filing volumes during the fall and the much anticipated Chapter 11 filing by the parent company of American Airlines. These conversations with reporters were among the most enjoyable moments of my term, as they offered an opportunity to both teach (many of the reporters had never covered business or bankruptcy issues specifically before) and to learn (the reporters had often collected hard-to-find intelligence about companies and trends).

Even before the official start of my term, I was recruited to help with an exciting new ABI publication, "Best of ABI 2011: The Year in Consumer Bankruptcy. "Along with co-editor and ABI Board member, Alane Becket, I surveyed the consumer-oriented contents of the ABI Journal for all of 2011 (and Alane surveyed the educational materials from the many ABI conferences in 2011), and we selected the best contributions, grouping them into several "hot topic" categories. A companion volume did the same for Business Bankruptcy. Another "hot topic"-related task involved the "quick poll" questions for the ABI website. To keep this fun tradition going, I drafted nearly two dozen poll questions, which began to appear on the site already near the end of my term.

Another unique publication opportunity involved an update of the Federal Judicial Center's timeline of the evolution of US Bankruptcy Law. The original timeline extended from the 1800s to 2006. In anticipation of ABI's 30th Anniversary in February 2012, I was asked to update the timeline for the five additional years to 2011, to include prominent filing-volume data, important statutory developments (Dodd-Frank's Orderly Liquidation Authority), Supreme Court precedent (Milavetz v. US, Hamilton v. Lanning, Random v. FIA Card Services), and landmark reorganization cases (Lehman Bros., Bear Stearns, General Motors, Chrysler, WaMu, CIT Group, Blockbuster, and Borders).

One of ABI's greatest strengths is its educational programming, and I was involved in four traditional programs, as well as an exceptional one-time special event. Early in the fall, I attended the Bankruptcy 2011: Views from the Bench program at Georgetown University. Later, I attended the annual Chicago Consumer Bankruptcy Conference, and I delivered the key note luncheon address at the Detroit Consumer Bankruptcy Conference. I spoke on the worldwide influence of US consumer bankruptcy policy and the ways in which non-US consumer insolvency systems have begun to generate ideas that we should consider adopting. Near the end of my term, I coordinated and moderated a panel on fraud in consumer bankruptcy cases at the 23rd Annual Winter Leadership Conference, held this year in La Quinta, California.

The other, extraordinary program involved a partnership between ABI and the World Bank, and I turned out to represent a serendipitous bridge between the two partners. Earlier in the year, I had been appointed to chair a drafting group for a World Bank project on the insolvency of natural persons. As chair of the drafting group, I worked with the World Bank Legal Vice Presidency to organize a two-day conference for our presentation of the draft document to a broader Working Group. This Working Group meeting was scheduled to coincide with the conclusion of the World Bank's annual Legal Forum, a legal education program for lawyers associated with the Bretton Woods institutions. Coincidentally, the ABI had agreed to offer a morning program as part of the Legal Forum immediately before the Working Group meeting, so I was assigned the dual tasks of organizing the ABI morning educational program (including an introduction to the World Bank's natural person insolvency project, which I presented), as well as coordinating the following Working Group meeting for the World Bank. My head was quite warm wearing the two different hats, and both aspects of the conference were resounding successes.

I extend my deepest sincere thanks to Executive Director Sam Gerdano for inviting me to serve as Resident Scholar. It was a uniquely enriching and enjoyable opportunity to work with Sam, Deputy Executive Director Amy Quackenboss, Public Affairs Manager John Hartgen, Media Technology Specialist Matt Lukban, and all the other truly outstanding people in the ABI office. I will miss my interaction with them, but I will take with me a wealth of wonderful memories and new insights gained during my several months in Alexandria. All service should be this much fun!

Prof. Jason Kilborn

John Marshall Law School (Chicago)