Greetings everyone. Volume 98, Issue 1 of the American Bankruptcy Law Journal is ready for you. To read the entire digital issue, click here.


Terrence L. Michael
Editor in Chief
American Bankruptcy Law Journal


It is often said that “imitation is the sincerest form of flattery.” But what happens when those following your lead start to challenge it? We may soon know the answer at least in the context of corporate restructurings. Indeed, the preeminence of chapter 11 of the Bankruptcy Code is being tested by recent changes in insolvency legislation around the world. This article explores examples of such changes in United Kingdom, Netherlands, and German insolvency laws that offer distressed corporations relief not currently (or at least not uniformly) available under the Bankruptcy Code. Think nonconsensual third-party releases or restructuring only one class of debt—relief that the author coins “alien relief.” Well, imitation can work both ways. In this article, Professor Bruce A. Markell of Northwestern University posits that a domestic United States entity could obtain alien relief in a foreign jurisdiction and then have that relief recognized by United States courts under chapter 15 of the Bankruptcy Code. Indeed, in this article, Professor Markell expresses the view that not only is this possible, but ultimately inevitable. To read the article, click here.

Those of us who work in the world of Chapter 7 discharge issues are well familiar with § 727(a)(2) of the Bankruptcy Code, which allows a court to deny a debtor a discharge where the debtor, “with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has … concealed . . . property of the debtor, within one year before the date of the filing of the petition.” Many courts have escaped the perils of the one-year limitation by adopting the “doctrine of continuing concealment,” and denied a discharge where, even though the act of concealment took place more than a year prior to filing, but the alleged concealment continued within the one year period. In this article, Professor Laura Bartell calls the practice to task, arguing that courts who apply this doctrine overreach, and that the scope of the statue should be limited to its terms. To read the article, click here.

Since 2022, it seems that hardly a day has gone by without a news headline revolving around crypto or crypto planforms– their successes, failures, bankruptcies, and collapses. In his article, Prof. Lev Breydo examines how crypto platforms are more like financial institutions than businesses that fit the traditional insolvency framework. The article conducts a comprehensive analysis of the crypto sector’s crisis and how the current bankruptcy system’s priority of creditors over equity holders results in a class of “silent victims” (crypto owners) in traditional reorganization cases. Beginning with a thorough discussion of the terminology and technology behind the general term “crypto,” the Article examines the shortfalls of previous crypto cases (especially that of FTX) in support of its ultimate argument that the problem is not the current bankruptcy system, but instead the need for a new, crypto-specific liquidation framework based around financial insolvency liquidation models. To read the article, click here.

At the beginning of the 20th century, railroad reorganizations highlighted insolvency proceedings. Northern Pacific Railway Corporation v. Boyd held that a buyer at a foreclosure sale is not the recipient of a constructive fraudulent transfer because what the buyer paid equals what the buyer received. Boyd is also attributed as the origination of the absolute priority rule in bankruptcy. According to Professor Carlson, the Supreme Court in Boyd left unresolved what is a collusive foreclosure sale. Further, Professor Carlson argues that Boyd is a leveraged buy-out case and that the Court mistakenly thought that Boyd was a collusive foreclosure case. Carlson maintains that because Boyd involved the foreclosure of an underwater mortgage, no equity existed for the general creditors of the debtor. As such, Professor Carlson concludes that Boyd is not collusive foreclosure case, but rather a veil piercing case that allowed an unpaid creditor a remedy against the buyer. To read the article, click here.

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Professor Steven L. Schwarcz
Honored for ABLJ Article

The 2024 recipient of the Grant Gilmore Award, which is given in recognition of superior writing in the field of commercial finance law, is awarded to Steven L. Schwarcz for his extraordinary article Bankruptcy-Remote Structuring: Reallocating Risk Through Law, published in the American Bankruptcy Law Journal, Volume 97, Issue 1 (2023)