Document Type

Working Paper

Publication Date

12-11-2018

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

Bankruptcy has broadly failed to deliver "fresh starts" to debtors Too often debtors return to states of financial distress following bankruptcy Although bankruptcy delivers a clean slate through the discharge of debts the efficacy of a fresh start depends on a second factor property exemptions While discharge frees a debtor from her existing debts property exemptions determine what property the debtor retains upon exiting bankruptcy For many debtors insufficient and suboptimal property exemption laws undermine fresh starts In fact under current bankruptcy law each state can reject federal bankruptcy exemptions by opting out Bankrupt debtors in "optout" states are forced to rely on general state exemptions"”often stingy and focused on preserving homesteads"”that were not designed for bankruptcybrbrExisting literature explores two lines of criticism against the federal optout provision 1 arguing that the law should be struck down as repugnant to constitutional notions of uniformity supremacy or both and 2 making the case for repeal on normative and fairness grounds For decades neither solution has been forthcoming The optout scheme at first aberrant and controversial has proved a perdurable feature of bankruptcy lawbrbrThis Article advances a different approach and proposes diffusive statebased reform solutions Under this approach each optout state would undertake a meaningful review of its existing exemptions regime in light of the federallydeclared rehabilitative function of bankruptcy I propose a model to be used in this review involving three factors"”nominal sufficiency housing agnosticism and allocative flexibility as a conceptual framework for reforms Addressing constitutional concerns this Article argues that these innovative "bankruptcyspecific exemptions" schemes should survive constitutional scrutiny The Article ends with discussion of the model and proposed reform frameworkbr

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