Bankruptcy Law

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I. Introduction

The term "bankruptcy" refers to the "statutory procedure by which a…debtor obtains financial relief and undergoes a judicially supervised reorganization or liquidation of the debtor's assets for the benefit of creditors." Black’s Law Dictionary, 9th ed. Bankruptcy impacts all segments of American society, from individuals and small businesses to high-profile corporations like Enron and General Motors to municipalities like Detroit. This research guide provides starting points for research on U.S. bankruptcy law, including key primary and secondary sources and sources of bankruptcy legislative history documents, both in print and online.

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II. Primary Sources

Article 1, Section 8 of the United States Constitution authorizes Congress to establish "uniform Laws on the subject of Bankruptcies throughout the United States." Bankruptcy law is, therefore, largely a matter of federal law, although bankruptcy law operates against a backdrop of rights created by state law as well.

A. Statutes


Today, bankruptcy is governed primarily by the Bankruptcy Reform Act of 1978, as amended, which is known as the "Bankruptcy Code." Congress made substantial amendments to the Bankruptcy Code in 1984, 1986, 1994, and 2005. The Bankruptcy Act of 1898 (known as the "Bankruptcy Act") governed cases filed before October 1, 1979. There are still references to the Bankruptcy Act in the Bankruptcy Code and in secondary sources, and courts may refer to analogous Bankruptcy Act provisions in interpreting the Bankruptcy Code.

The current version of the Bankruptcy Code is codified at Title 11 of the United States Code. (Certain sections of Titles 18, 26, 28, and 50 of the U.S.C. also apply to bankruptcy.) Title 11 is further divided into chapters, and bankruptcy cases are described by the chapter of the Bankruptcy Code under which they arise:

  • Chapter 7 – Liquidation
  • Chapter 9 – Adjustment of Debts of a Municipality
  • Chapter 11 – Reorganization
  • Chapter 12 – Adjustment of Debts of a Family Farmer or Fisherman with Regular Income
  • Chapter 13 – Adjustments of Debts of an Individual with Regular Income
  • Chapter 15 – Ancillary and Other-Cross Border Cases

Important provisions of Chapters 1 (General Provisions), 3 (Case Administration), and 5 (Creditors, the Debtor, and the Estate) apply to bankruptcy cases arising under the other chapters of the Bankruptcy Code.

In print, the Bankruptcy Code can be found in official and unofficial (annotated) versions of the United States Code (U.S.C., U.S.C.A., and U.S.C.S.), which are shelved in the Federal Alcove. In addition, the text of the Bankruptcy Code is reproduced in comprehensive treatises, such as Collier on Bankruptcy, 16th ed. (KF1524 .C655, further described below), and in annual pamphlet editions like the Collier Portable Pamphlet (KF1524 .C588, current year on Reserve, earlier years on level 2). When Congress makes substantial amendments to the Bankruptcy Code, publishers also issue special editions of the new law, highlighting changes from existing law, such as Bankruptcy Abuse and Prevention Act and Consumer Protection Act of 2005: Law and Explanation (KF1511.597 .W55 2005).

Online, unannotated versions of Title 11 are available free in the U.S. Code in the GPO's Federal Digital System ("FDsys") and from Cornell's Legal Information Institute.

Annotated versions of the Bankruptcy Code are available on LexisNexis, Westlaw, and Bloomberg:

  • On Lexis.com, a combined database of Titles 11, 18, and 28 is found in the Bankruptcy Area of Law materials (USCS-Bankruptcy-Titles 11, 18, 28). On Lexis Advance, these titles are available in the United States Code Service database. Searches can be limited to the desired titles of the U.S.C.S. by viewing the table of contents and clicking the magnifying glass icon to the right of each title.
  • The Bankruptcy Code can be found in the FBKR-USCA database on Westlaw Classic. Chapters 7, 11, and 13 of the Bankruptcy Code are also available individually in their own narrower databases (e.g., FBKR-USCA-C7). On WestlawNext, the Bankruptcy Code is available in the Bankruptcy Statutes & Court Rules database.
  • Title 11 is available in the Bankruptcy Practice Center on Bloomberg Law. Additional titles of the U.S.C. that affect bankruptcy are conveniently linked under "Other U.S. Federal Bankruptcy Provisions." The Bankruptcy Code can also be searched by citation or by topic on Bloomberg BNA's Bankruptcy Law Resource Center (found under Quick Links on the Library’s web page).

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B. Cases


1. Decisions

Bankruptcy decisions can come from several federal courts. Most bankruptcy cases begin in the U.S. Bankruptcy Courts, which for constitutional reasons are a unit of the federal district court. Cases that are initially heard in bankruptcy court may then be appealed either to the U.S. District Court or to a Bankruptcy Appellate Panel (an administrative alternative to district courts in some circuits). Cases may be further appealed to the U.S. Courts of Appeals and the U.S. Supreme Court.

There are several specialized print reporters for bankruptcy decisions, and no single one of them contains all bankruptcy decisions. Goodson Law Library’s holdings include West’s Bankruptcy Reporter and Collier Bankruptcy Cases (shelved off-site). (Other specialized reporters are Bankruptcy Court Decisions and CCH Bankruptcy Law Reporter.)

West's Bankruptcy Reporter (Federal Reporters & Digests, third floor (volumes 1-455) and on Westlaw Classic/WestlawNext).
This reporter reports more cases than other specialized reporters. The cases follow the standard West reporting format, with topics, key numbers, and headnotes. This set includes bankruptcy cases from all the levels of the federal court system, from the U.S. Bankruptcy Courts through the U.S. Supreme Court. Bankruptcy cases from the Courts of Appeals and the Supreme Court are reproduced the back of each volume and include the Federal Reporter and Supreme Court Reporter paginations at the top of each page.

The same appellate bankruptcy cases can also be found in the regular Federal Reporter and in Supreme Court Reporter. By contrast, bankruptcy cases from bankruptcy courts and district courts do not appear in the regular Federal Supplement, only in the Bankruptcy Reporter.

Collier Bankruptcy Cases, 2d series (Library Service Center KF1524 .C65).
This reporter complements a leading treatise (see Collier on Bankruptcy, below). CBC selectively reports cases decided under the Bankruptcy Code.  Helpful features of this reporter include a bibliography and cross references to other reporters and secondary sources. It also has its own system of headnotes. The Codex volumes allow users to find cases by statutory section or rule number, party name, or Collier on Bankruptcy (15th ed. revised) paragraph number.

Online, bankruptcy cases are found in bankruptcy practice area databases:

  • On Lexis.com, combined and separate case databases by court are available in the Bankruptcy Area of Law materials. On Lexis Advance, choose Browse Sources, then narrow the sources by bankruptcy practice area and content type (cases).
  • Westlaw Classic's bankruptcy topical materials include combined and separate case databases by court and by chapter of the Bankruptcy Code (e.g., FBKR-CS, FBKR-CS2, FBKR-CS-C7). In WestlawNext’s Bankruptcy Practice Area, all bankruptcy cases can be searched together or narrowed by court.
  • Bloomberg Law's Bankruptcy Practice Center includes federal decisions arranged by court and state court bankruptcy and insolvency opinions. Federal court dockets can also be searched through this practice center. Bloomberg BNA’s Bankruptcy Law Resource Center includes cases cited in certain BNA publications and in American Bankruptcy Institute books since October 2005.

2. Digests

West’s Bankruptcy Digest (Federal Reporters & Digests, third floor) includes bankruptcy headnotes, arranged by topics and key numbers, from reported decisions from all levels of the federal court system, as well as bankruptcy points of law from state courts. These same topics and key numbers can be used to find bankruptcy cases on Westlaw Classic and WestlawNext. The digest also includes a table of cases and a list of key numbers that correspond to specific Bankruptcy Code sections.

 

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C.Bankruptcy Rules and Official Forms


Bankruptcy cases are governed by the Federal Rules of Bankruptcy Procedure, also known as the "Bankruptcy Rules." The Bankruptcy Rules are promulgated by the U.S. Supreme Court and were last amended in December 2013. The Bankruptcy Rules also prescribe the use of Official Forms in bankruptcy cases.

The Bankruptcy Rules and Official Forms are available in print and online. In print, they can be found as part of the official and unofficial versions of the United States Code. The Bankruptcy Rules are located in an appendix to Title 11 in the official U.S.C., appearing after Chapter 15 of the Bankruptcy Code. The U.S.C. refers users to the website of the United States Courts (see below) for the Official Forms.

Annotated Bankruptcy Rules are located in volumes shelved immediately after Title 11 in the print U.S.C.A.  In addition, Bankruptcy Appellate Panel rules are available in an appendix to the rules volumes. In the print U.S.C.S., both the Bankruptcy Rules and the Official Forms are found in the court rules volumes at end of the set. 

The Bankruptcy Rules can also be found in commercially produced annual pamphlet editions, such as the Collier Portable Pamphlet (KF1524 .C588, current year on Reserve, earlier years on level 2), and in the leading treatises (Collier and Norton, below).

The Bankruptcy Rules are available online in free, unannotated versions from Cornell's Legal Information Institute and from the Administrative Office of the United States Courts.  The Administrative Office's website also provides access to the Official Forms and additional procedural forms.

Annotated versions of the Bankruptcy Rules and Official Forms are available on LexisNexis, Westlaw, and Bloomberg:

  • On Lexis.com, they are located in the Bankruptcy Area of Law materials in a database called USCS - Bankruptcy Rules and Official Bankruptcy Forms. On Lexis Advance, these materials are found at the end of the USCS – Federal Rules Annotated.
  • On Westlaw Classic, the Bankruptcy Rules and official and procedural forms are available in the FBKR-RULES database, and on WestlawNext, they are found in the Bankruptcy Statutes & Court Rules database.
  • The Bankruptcy Rules, Official Forms, and procedural forms are available in the Bankruptcy Practice Center on Bloomberg Law.  Bankruptcy Rules can also be quickly retrieved by citation through the Bankruptcy Law Resource Center on Bloomberg BNA.

Individual bankruptcy courts also issue their own local rules and forms, which are available at the courts’ websites.  See, for example, the website of United States Bankruptcy Court for the Eastern District of North Carolina in Raleigh, which includes Local Rules and Orders and Local Forms.

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III. Secondary Sources

A good starting place for a researcher new to bankruptcy is Bankruptcy Basics, a publication of the Administrative Office of the U.S. Courts (available at the U.S. Courts website and in the Bankruptcy Practice Center on Bloomberg Law). This plain-English guide introduces bankruptcy laws and the bankruptcy process. Other helpful introductory works include Bankruptcy and Related Law in a Nutshell, 9th ed. (Reserve KF1501 .Z9 E67 2013) and Understanding Bankruptcy, 3d ed. (KF1524 .F47 2013).

 

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A.  Books and Treatises
 

1. Comprehensive treatises

The two leading treatises on bankruptcy are Collier on Bankruptcy and Norton Bankruptcy Law and Practice. Both examine the Bankruptcy Code and Rules comprehensively.

Alan N. Resnick and Henry J. Sommer, eds., Collier on Bankruptcy, 16th ed. (KF1524 .C655 and on Lexis.com/Lexis Advance).
This classic work, published in a new edition after the 2005 amendments to the Bankruptcy Code, provides a detailed section-by-section analysis of the Bankruptcy Code and Rules.  Additional volumes cover bankruptcy taxation and state law exemptions. Appendices reproduce the texts of the current Bankruptcy Code, Bankruptcy Rules, related laws, and the Bankruptcy Act of 1898.  Legislative history materials for major amendments to the Bankruptcy Code are also included.  Also reprinted is the text of the 1997 final report of the National Bankruptcy Review Commission, which reviewed the state of bankruptcy law in the years after the 1978 reforms and made recommendations to Congress for further improvement of bankruptcy law and procedure.

Many additional Collier publications are also available on Lexis.com and Lexis Advance.

William L. Norton, Jr. and William L. Norton, III, eds., Norton Bankruptcy Law and Practice, 3d ed. (KF 1524 .N76722 and on Westlaw Classic/WestlawNext).
Written and edited by a former bankruptcy judge, this multivolume treatise consists of three substantive parts: first, an introduction to bankruptcy law and practice; second, a detailed section-by-section analysis of the Bankruptcy Code; and third, analysis of related laws and issues.  Appendix volumes reproduce the Bankruptcy Code and Rules, related provisions of other chapters of the U.S.C., and selected legislative history materials. They also include finding aids and the Norton Dictionary of Bankruptcy Terms.

Additional Norton publications are available on Westlaw Classic and WestlawNext.

2. Narrower works

Many narrower works cover individual chapters of the Bankruptcy Code, specific aspects of bankruptcy cases, and bankruptcy from the perspectives of different parties.  Examples include:

Stan Bernstein, et al., Business Bankruptcy Essentials (on Bloomberg Law). An introduction to business bankruptcies for the non-bankruptcy practitioner, published by the American Bar Association.

W. Homer Drake, Jr. and Christopher S. Strickland, Chapter 11 Reorganizations, 2d ed. (KF1544 .A953 and on Westlaw Classic/WestlawNext). This guide, written by a bankruptcy judge and a bankruptcy practitioner, explains the reorganization process under Chapter 11 of the Bankruptcy Code, offers advice on each step of that process, and discusses the roles of the various parties in bankruptcy cases.

Stephen Elias, et al., How to File for Chapter 7 Bankruptcy, 15th ed. (Reference KF1524.85 .E4 2009) and Chapter 13 Bankruptcy, 9th ed. (Reference KF1524.85 .L46 2008). Written for the consumer, these Nolo Press publications explain the bankruptcy process, guide debtors through that process under Chapter 7 or Chapter 13, and offer advice for rebuilding credit after bankruptcy. Helpful features include charts of state exemptions with citations to state statutes, worksheets, checklists, sample documents, and a glossary.

Sally McDonald Henry, The New Bankruptcy Code: Cases, Developments, and Practice Insights Since BAPCPA (KF1511.597 H46 2007). This handbook from the ABA Section of Business Law answers frequently asked questions arising from the 2005 amendments to the Bankruptcy Code. Arranged by Bankruptcy Code chapter, it describes notable cases interpreting and applying the amendments and reproduces illustrative court orders. Also includes a chart comparing timing and deadlines in bankruptcy cases before and after the amendments.

Lynn M. LoPucki and Christopher R. Mirick, Strategies for Creditors in Bankruptcy Proceedings, 5th ed. (KF1524 .L57 2007). Written by a well-known law professor and bankruptcy empiricist, this book provides tactical advice for secured and unsecured creditors before bankruptcy and in Chapter 7, 11, and 13 bankruptcy cases.

Robert K. Rasmussen, ed., Bankruptcy Law Stories (KF1524 .B357 2007). A collection of essays in which law professors tell the stories behind significant bankruptcy cases and provide insights into their larger implications.

Shayna M. Steinfeld and Bruce R. Steinfeld, The Family Lawyer's Guide to Bankruptcy, 2d ed. (KF1535 .D58 S74 2008). This ABA handbook provides an introduction to bankruptcy for the divorce practitioner. It addresses the kinds of debts that arise in a divorce case and discusses bankruptcy under chapters 7, 11, and 13 in that context. It also offers advice for pre-bankruptcy planning. It includes extensive case citations, forms, and a glossary of bankruptcy terms.

3. ABI Institute Books and Continuing Legal Education Materials

The American Bankruptcy Institute ("ABI") is a non-partisan organization dedicated to research and education on insolvency matters, and its members include professors, judges, attorneys, and other bankruptcy professionals. Many ABI publications covering consumer, corporate, and municipal bankruptcies are available in the Bankruptcy Practice Center on Bloomberg Law. Examples include Consumer Bankruptcy: Fundamentals of Chapter 7 and Chapter 13 of the U.S. Bankruptcy Code and Pre-Bankruptcy Planning for the Commercial Reorganization. These publications range from introductory to very specialized works and include multidisciplinary topics, such as family law, telecommunications, financial services, and military law.

Also, continuing legal education materials from ABI conferences (beginning with Winter 2000) are available on Westlaw Classic and WestlawNext in the ABI Conference Material database. In addition to these books and CLE materials, the ABI also publishes two journals, described below.

 

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B.  Periodicals, Websites, and Blogs


1. Scholarly Journals

American Bankruptcy Institute Law Review (recent issues in Periodicals, older issues at Library Service Center; on Bloomberg Law, HeinOnline, Lexis.com/Lexis Advance, Westlaw Classic/WestlawNext). This semiannual journal of the ABI publishes scholarly articles edited by students at St. John's University School of Law. Each issue usually covers a single theme.

American Bankruptcy Law Journal (recent issues in Periodicals, older issues at Library Service Center; on Bloomberg Law, HeinOnline, Lexis.com/Lexis Advance, Westlaw Classic/WestlawNext). This peer-reviewed journal of the National Conference of Bankruptcy Judges focuses on bankruptcy law and related subjects.

Emory Bankruptcy Developments Journal (recent issues in Periodicals, older issues at Library Service Center; on Bloomberg Law, HeinOnline, Lexis.com/Lexis Advance, Westlaw Classic/WestlawNext). This semiannual, student-run journal covers bankruptcy and restructuring and includes an annual symposium. An open-access journal, it is also freely available at its website.

Norton Annual Survey of Bankruptcy Law (KF1508.5 .A56 and on Westlaw Classic/WestlawNext).

Published by the authors of the Norton treatise, this journal includes articles on bankruptcy topics of current interest and describes developments in bankruptcy law annually.

2. Newsletters/Current Awareness Sources

Several newsletters can help researchers stay on top of current developments in bankruptcy law under all chapters of the Bankruptcy Code. Examples include:

American Bankruptcy Institute Journal (on Bloomberg Law, Lexis.com/Lexis Advance, Westlaw Classic/WestlawNext). This monthly magazine for insolvency professionals provides bankruptcy news, practical articles, and legislative updates.

Bankruptcy Court Decisions News & Comments (on Lexis.com and Westlaw Classic/WestlawNext). This weekly newsletter includes industry news, professional profiles, and legislative and court updates.

BNA Bankruptcy Law Reporter (on Bloomberg BNA and Bloomberg Law). Provides daily and weekly news coverage of commercial and consumer bankruptcy law and major commercial cases.

Norton Bankruptcy Law Adviser (on Westlaw Classic/WestlawNext). A practical monthly newsletter, edited by bankruptcy judges, covering bankruptcy legislative and case developments.

In addition, more narrowly-focused newsletters focus on emerging issues and cover bankruptcies under specific chapters of the Bankruptcy Code and in specific industries. These newsletters often reproduce pleadings from notable cases. Examples include West Journal Bankruptcy (on Westlaw Classic/WestlawNext), which focuses on litigation related to corporate bankruptcies, and LexisNexis Bankruptcy Report (on Lexis.com/Lexis Advance), which analyzes cases pertaining to the 2005 amendments to the Bankruptcy Code.

3. Websites and Blogs

Bankruptcy Beat
This Wall Street Journal blog covers notable “corporate bankruptcies, companies headed for trouble and the latest trends in bankruptcy law, distressed investing and corporate restructuring.”

Bankruptcy Law Network
Written by bankruptcy lawyers and consumer advocates, this blog focuses on consumer bankruptcies. It also includes a plain-English glossary of selected bankruptcy terms.

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C.  Commercial Forms and Checklists
 

Commercially produced forms and checklists, available in print and online, can be helpful aids in drafting bankruptcy documents.  In print, six appendix volumes to the treatise Collier on Bankruptcy (KF1524 .C655, treatise description above) provide extensive forms for both business and consumer bankruptcies. These forms are also available online in the treatise on Lexis.com/Lexis Advance.

Forms from additional, more specialized Collier publications are also available on Lexis.com (in the Bankruptcy Area of Law materials) and Lexis Advance.  For example, bankruptcy forms related to divorce and child support are available in Collier Family Law and the Bankruptcy Code. State-specific bankruptcy forms are also found on Lexis.com.

The Bankruptcy Agreements database on WestlawNext includes actual contracts, financing documents, and plans of liquidation and reorganization that were filed as exhibits to filings with the Securities and Exchange Commission. In addition, the bankruptcy materials from Practical Law on WestlawNext include standard documents and clauses, as well as checklists.

American Bankruptcy Institute and BNA Forms and Checklists are available in Bloomberg BNA's Bankruptcy Law Resource Center. ALI-ABA forms are available in Bloomberg Law's Bankruptcy Practice Center. Also available on Bloomberg Law is the ABA's Bankruptcy Deadline Checklist, a quick reference guide to deadlines and filing requirements for cases arising under all chapters of the Bankruptcy Code and the Bankruptcy Rules.

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IV. Legislative Histories

Compiled legislative histories of the Bankruptcy Act, the Bankruptcy Code, and significant amendments to the Code are available in a variety of print and online sources. (To research the legislative history of bankruptcy statutes not covered by compiled legislative histories, see the Goodson Law Library's Federal Legislative History research guide.)

A. Compiled legislative histories in print
 

Mickie A. Voges and Kathy E. Shimpock, The Bankruptcy Reform Act of 1978: Analysis, Legislative History and Selected Bibliography (KF1506 .V64 1981). This bibliography describes the changes to bankruptcy law brought about by the 1978 Act, provides a brief narrative summary of its legislative history, and lists hearings, committee prints, committee reports, debates, and bills pertaining to the Act.

Collier on Bankruptcy, 16th ed.  (KF1524 .C655 and on Lexis.com/Lexis Advance; treatise description above). Six volumes of appendices reproduce extensive legislative history materials from the Bankruptcy Act, the Bankruptcy Code, and amendments to the Code. Introductory commentary is followed by the text of session laws, floor debate, and committee reports.

Norton Bankruptcy Law and Practice, 3d ed. (KF1524 .N76722 and on Westlaw Classic/WestlawNext; treatise description above). "Norton's Annotated Legislative History," found in volume 10 of the treatise, reproduces the Bankruptcy Code with annotations explaining, section-by-section, its legislative history from the enactment of the Code in 1978 through the present. Annotations include excerpts from relevant committee reports and floor debate, as well as editorial commentary and references to key cases.

B. Compiled legislative histories online


Bankruptcy Amendments and Federal Judgeship Act of 1984, compiled by the Howrey Law Firm, is available in the U.S. Federal Legislative History Library on HeinOnline.  This five-volume collection reproduces documents from the passage of the 1984 amendments over two Congresses and includes a chronology of events.

Lexis.com provides compiled legislative history materials for several bankruptcy laws in the Bankruptcy Area of Law collection, including materials for the 1978 Act and 1980, 1984, 1986, 1987, 1994, and 2005 amendments. These materials are not yet available on Lexis Advance.

ProQuest Legislative Insight includes compiled legislative histories of the 1978 Act and all of its major amendments. These extensive legislative histories include documents from multiple sessions of Congress, where relevant, including bills, floor debates, hearings, committee prints, and presidential signing statements. Congressional Research Service reports are also available for some of the laws.

On Westlaw Classic and WestlawNext, the U.S. GAO Federal Legislative Histories database (FED-LH) includes a compiled legislative history of the 1978 Bankruptcy Reform Act (easily retrieved by  Public Law Number 95-598), as well as many of the major amendments to the Bankruptcy Code through 1995.  Compiled legislative histories for the 1978 Act and several major amendments to the Bankruptcy Code are also available in the Arnold & Porter Legislative Histories databases (BANKR78-LH, BANKR84-LH, BANKR86-LH, and BANKR94-LH).

Key historical bankruptcy legislation from the Bankruptcy Act of 1800 through the Bankruptcy Reform Act of 1994 is easily found on Bloomberg Law under Prior Bankruptcy Acts in the Bankruptcy Practice Center.

 

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