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Previous chapters described competition among some bankruptcy courts for the cases of the largest public companies. To succeed in that competition, the bankruptcy courts must abandon the effort to control fees. Bankruptcy professionals will not steer their clients to courts that will control the professionals' fees. That puts the competing courts in a bind. The Bankruptcy Code and Rules require that the courts control professional fees, specify the precise methods by which they are to do it, and bar the courts from relaxing the requirements. The competing bankruptcy courts have responded to this dilemma by going rogue, routinely authorizing and tolerating professional fee practices that violate the Bankruptcy Code and Rules. Because most bankruptcy judges are unwilling to adopt illegal practices, most bankruptcy courts have dropped out of the competition. The effect has been to clear a path to victory for judges willing to adopt illegal practices. This chapter documents three such practices empirically: the Ordinary-Course-Professionals Practice, the Prior-Payment-Disclosure Practice, and Disburse-First-and-Decide-Later Practice.

Although insolvency legislation appeared on the statute books of most of the countries of the former Soviet bloc, the actual practice of bankruptcy was mostly unknown under the state-controlled economy because debtors and creditors were generally arms of the state or were ultimately supported by it. As the conflicts of interests that inherently drive insolvency proceedings did not exist, debt recovery and the ‘orderly market exit’, which are seen as key elements of any insolvency law by Western lawyers, were not functioning. There is now a general recognition that bankruptcy legislation is essential for the process of transition. As a result, international financial institutions are pressing individual countries to reform their laws. This chapter examines the 1998 Russian Bankruptcy Law in the context of these objectives and the specific characteristics of Russian economic and social circumstances. It then considers the impact of such reform.

In April 2005, the US Congress enacted, and President Bush signed into law, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the ‘Bankruptcy Bill’), which made radical amendments to the US Bankruptcy Code. These changes had the principal effect of restricting the ability of consumers to discharge debt in bankruptcy. The Bankruptcy Bill was presented by its proponents – representatives of the consumer credit industry – as protecting innocent lenders from being duped. These proponents contributed vast sums to sympathetic legislators, and to legislators who they hoped would become sympathetic. This chapter explores whether the picture of the paradigmatic debtor they paint is empirically accurate. It shows that the factual assertions that ostensibly motivated the Bankruptcy Bill are belied by data and the consumer credit industry's own behaviour. It suggests an alternate story that is both more plausible, and more problematic. Consumers do not overborrow in reliance on the availability of the bankruptcy discharge. Instead, they borrow honestly, but heuristically, often in response to aggressive solicitations, and default if (and, by and large, only if ) their debt load becomes crushingly great.

Corporate insolvency is about debt and it always involves debtor corporations as key stakeholders. It should, therefore, follow that stakeholders integral to everyday bargaining over debt management should also be integral to the meta-bargaining that produces the rules that govern everyday corporate bankruptcies. Such is not the case. In many historical circumstances—in countries with economies both advanced and developing; in situations of economic crisis and in ordinary times; in Europe, North America, and Asia—the stakeholders who mobilize to craft national bankruptcy law seldom include debtors. Debtors are also conspicuous by their absence from forums of global norm-making in which international financial institutions or international governance organizations create norms designed to guide national lawmaking. In short, a class of bankruptcy players for whom everyday bargaining over debt obligations is a matter of corporate life or death seldom appears in the forums that institutionalize the rules by which their individual fates are determined. How is this puzzle to be explained? This chapter examines hypotheses that address this issue through three research projects. The first studied the politics behind two landmark pieces of lawmaking in advanced economies—the US Bankruptcy Code of 1978 and the English Insolvency Act of 1986. The second project studied three Asian economies in the wake of the Asian Financial Crisis. The third project examines the decade-long initiatives by the UN Commission on International Trade Law to create global norms for corporate bankruptcy regimes.

A significant body of research documents the volatility of household income and assets over the life cycle. The US bankruptcy system is among the policy interventions designed for such disruptions, and several million people pass through this system every year. Measures of homeownership, occupational prestige, and education indicate that they generally are middle class but have very low incomes when they file. This chapter examines the literature on medical problems among bankruptcy filings. It then explores the credit and debt management choices made by financially strapped households before they take the ultimate step of filing for bankruptcy. It focuses particularly on the management of medical bills not covered by insurance. The authors use data from the 2007 Consumer Bankruptcy Project, a nationally representative data set based on court records, written questionnaires, and telephone surveys.