The perfect storm: Bankruptcy, choice of law, and same-sex marriage

Abstract
The bankruptcy courts are currently split on the appropriate choice of law rule, some contend that they must apply the forum state's choice of law rule while others contend that they are free to create a federal choice of law rule. This Article contends that the forum state's choice of law rule is inapplicable in the bankruptcy context when interpretation and application of the Bankruptcy Code requires reference to state law. In these instances,bankruptcy courts should be free to develop a federal choice of law rule that promotes the federal policies underlying the Bankruptcy Code. This approach will result in the Bankruptcy Code being interpreted by reference to state laws that are consistent with and promote the Code's underlying policies. Importantly, such an approach requires courts to ensure that the parties' rights and obligations are not unnecessarily altered by the bankruptcy process. Likewise, it avoids the situation where a state's public policy dictates which state law should be used to interpret and apply federal law. Under this paradigm, courts would choose the state law that aids a debtor's fresh start upon emergence from bankruptcy, promotes the ratable distribution of available assets among the creditors, and, perhaps most importantly, ensures that the rights of the parties are not unnecessarily undermined by the happenstance of bankruptcy.
Keywords No keywords specified (fix it)
Categories No categories specified
(categorize this paper)
Options
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index
 
Download options
PhilPapers Archive


Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 10,731
External links
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library
References found in this work BETA

No references found.

Citations of this work BETA

No citations found.

Similar books and articles
Analytics

Monthly downloads

Added to index

2009-01-28

Total downloads

3 ( #290,026 of 1,098,650 )

Recent downloads (6 months)

0

How can I increase my downloads?

My notes
Sign in to use this feature


Discussion
Start a new thread
Order:
There  are no threads in this forum
Nothing in this forum yet.