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Workshop on Bankruptcy
May 17–19, 2001
St. Louis, Missouri
Marjorie L. Girth
Georgia State University College of Law
Bibliography as of April, 2001
The following outline of my presentation is supplemented by selected bibliographical materials on consumer bankruptcy issues available as of April, 2001, for those who may be interested in particular topics. Professor Robert W. Lawless, who is the co-presenter for this panel, has provided an extensive bibliography on business bankruptcy issues at http://www.law.missouri.edu/lawless/bus_bkr/body_index.htm.
I. The scholarly tradition in American legal research that reflected an interest in empiricism
Lawrence M. Friedman, The Law and Society Movement, 38 Stan. L. Rev.763 (1986)
Robert S. Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought - A Synthesis and Critique of Our Dominant General Theory About Law and Its Use, 66 Cornell L. Rev. 861 (1981)
John Henry Schlegel, American Legal Realism and Empirical Social Science: The Singular Case for Underhill Moore, 29 Buff. L. Rev. 195 (1980)
John Henry Schlegel, American Legal Realism and Empirical Social Science: From the Yale Experience, 28 Buff. L. Rev. 459 (1980)
II. Why law faculty members do so little empirical research
Defining "empirical research" in this context
Most scientific definition: the application of statistical techniques of inference to large bodies of data
Michael Heise, The Importance of Being Empirical, 26 Pepp.L. Rev. 807 (1999).
Craig Allen Nard, Empirical Legal Scholarship: Reestablishing A Dialogue Between the Academy and the Profession, 30 Wake Forest L. Rev. 347 (1995)
Peter H. Schuck, Why Don=t Law Professors Do More Empirical Research, 39 J. Legal Educ. 323 (1989)
Other possibilities:
Case studies or data drawn from random samples of selected geographical areas, both of which can be targets of challenges to claims of representativeness on their behalf
Predominantly anecdotal work that illustrates the power of personalized examples.
III. Should untenured scholars undertake empirical or “field research” projects ?
As part of the educational experience that they are attempting to produce when they teach a basic bankruptcy course ?
Issue becomes the traditional one of the tradeoff involved in the cost of not covering other materials
Is shaking up students' preconceptions about who the bankrupt debtors are or how much creditors actually participate worth that kind of cost ?
The risk that what students observe will undermine positive educational goals.
As part of the research that accumulates before a tenure decision ?
Risks of individual research
Tenured colleagues may be unsympathetic to this kind of research.
It may take so long that the number of pre-tenure publications seems very low by comparison with others' tenure files being reviewed by either the law school faculty or university officials.
Delays may be aggravated by problems in data collection and/or coding (the familiar scourge of "junk in, junk out").
Research results based upon useable data may not be reflective of "what everybody knows," a development that can have either positive or negative effects, depending upon the politics of particular academic environments. Added risks of collaborative research with colleagues who are more expert in statistical methodology
Different scholarly cultures
How extensive should footnoting be?
At what level of precision will data be considered useable ?
Will law faculty colleagues give the same kind of credit to collaborative research as they would to individual research or will they feel "unable to evaluate" it ?
IV. Should tenured faculty members undertake such research ?
As a significant part of their post-tenure scholarly agenda ?
Increasingly widespread use of post-tenure review may make such research more risky than it has seemed in the past.
With the hope of having an impact upon bankruptcy legislation itself or upon other laws that impact upon creditors' or bankrupt debtors' experience ?
Risks of involvement with the legislative process
Unpredictable, emergency-oriented timing
Primacy of political over academic agendas
The ability of the powerful anecdote to overwhelm more systematic data
See James J. White, Phoebe's Lament, 98 Mich. L. Rev. 2773 (2000);
Elizabeth Warren and Jay Lawrence Westbrook, Searching for Reorganization Realities, 72 Wash. U. L.Q. 1257, 1263 (1994).
Marjorie L. Girth, The Role of Empirical Data in Developing Bankruptcy Legislation for Individuals, 65 Ind. L. J. 17 (1989).
Teresa A. Sullivan, Elizabeth Warren and Jay Lawrence Westbrook, The Use of Empirical Data in Formulating Bankruptcy Policy, 50-SPG Law & Contemp. Probs. 195 (1987).
V. Selected examples of consumer bankruptcy issues that have drawn the attention of scholars with an interest in empirical research
the personal and financial demographics of the bankruptcy petitioners and the causes of their decision to pursue a remedy under the bankruptcy laws
Teresa A. Sullivan, et al., The Fragile Middle Class (2000)*
Robert W. Lawless, The Relationship Between Nonbusiness Bankruptcy Filings and Various Basic Measures of Consumer Debt (2000), which is available at http://www.law.missouri.edu/lawless/bus_bkr/body_index.htm
Michelle J. White, Why Don=t More Households File for Bankruptcy?, 14 J. L. Econ. & Org. 205 (1998)
Teresa A. Sullivan, et al, Consumer Debtors Ten Years Later: A Financial Comparison of Consumer Bankrupts 1981-91, 68 Am. Bankr. L. J. 121 (1994)
Teresa A. Sullivan, et al., As We Forgive Our Debtors (1989)*
Teresa A. Sullivan, et al., Folklore and Facts: A Preliminary Report from the Consumer Bankruptcy Project, 60 Am. Bankr. L.J. 293 (1994)
U.S. General Accounting Office, A Profile of Selected Personal Bankruptcy Cases, GGD-83-16, November, 1982.
David T. Stanley and Marjorie Girth, Bankruptcy: Problem, Process, Reform (The Brookings Study, 1971)*
* The three books noted with an asterisk have broad coverage of consumer bankruptcy issues. I have refrained from citing them at each possible opportunity below.
the experience of female bankruptcy petitioners
Kathy R. Davis, Bankruptcy: A Moral Dilemma for Women Debtors, 22 Law & Psychol. Rev. 235 (1998), relying for empirical data upon Gross et al, and Driscoll, immediately below, and Sullivan et al., As We Forgive Our Debtors, noted above.
Karen Gross, Marie Stefanini Newman, and Denise Campbell, Ladies in Red: Learning From America's First Female Bankrupts, XL Am. J. Leg Hist. 1 (1996)
Sheila Driscoll, Consumer Bankruptcy and Gender, 83 Geo. L. J. 525 (1994)
Zipporah Batshaw Wiseman, Women in Bankruptcy and Beyond, 65 Ind. L.J. 107 (1989)
the “legal culture” that has affected consumer petitioners= choices between financial liquidation under the present Chapter 7 and financial reorganization under the present Chapter 13
Jean Braucher, Counseling Consumer Debtors to Make Their Own Informed Choices B A Question of Professional Responsibility, 5 Am. Bankr. Inst. L. Rev. (1997)
Teresa A. Sullivan, Elizabeth Warren and Jay Lawrence Westbrook, The Persistence of Local Legal Culture: Twenty Years of Evidence from the Federal Bankruptcy Courts, 17 Harv. J. L. & Pub. Pol=y 801 (1994)
Jean Braucher, Lawyers and Consumer Bankruptcy: One Code, Many Cultures, 67 Am. Bankr. L. J. 501 (1993)
Gary Neustadter, When Lawyer and Client Meet: Observations of Interviewing and Counseling Behavior in the Consumer Bankruptcy Law Office, 35 Buff. L.Rev. 177 (1986)
Teresa A. Sullivan, et al., The Fragile Middle Class (2000)
Teresa A. Sullivan, et. al., As We Forgive Our Debtors (1989)
David T. Stanley and Marjorie Girth, Bankruptcy: Problem, Process, Reform (The Brookings Study, 1971).
the economic incentives for non-business debtors under our present bankruptcy legislation
General Accounting Office, Bankruptcy Reform: Use of the Homestead Exemption by Chapter 7 Bankruptcy Debtors in the Northern District of Texas and the Southern District of Florida in 1998, GGD -99-118R (June, 1999)
Michelle J. White, Why It Pays to File for Personal Bankruptcy: A Critical Look at the Incentives Under U.S. Personal Bankruptcy Law and A Proposal for Change, 65 U. Chi. L. Rev. 685 (1998)
Phillip Shuchman and Thomas L. Rhorer, Personal Bankruptcy Data for Opt-Out Hearings and Other Purposes, 56 Am. Bankr. L.J. 1 (1982)
the questions of whether Chapter 13 proceedings can be viewed as successful and of whether that remedy should be retained
Scott F. Norberg, Consumer Bankruptcy's New Clothes: An Empirical Study of Discharge and Debt Collection in Chapter 13, 7 Am. Bankr. Inst. L. Rev. 415 (1999).
William C. Whitford, Has the Time Come to Repeal Chapter 13?, 65 Ind. L.J. 85 (1989), relying on the data in Sullivan et al, As We Forgive Our Debtors (1989)
Marjorie L. Girth, The Bankruptcy Reform Process: Maximizing Judicial Control in Wage Earners' Plans, 11 U. Mich. J. Law Reform 51 (1977)
the potential ability of a “means test” to identify debtors who would be able to pay a substantial portion of their debts
U.S. General Accounting Office, Personal Bankruptcy: Analysis of Four Reports on Chapter 7 Debtors' Ability to Pay, GGD 99-103, June, 1999.
Marianne B. Culhane and Michaela M. White, Taking the New Consumer Bankruptcy Model for a Test Drive: Means-Testing Real Chapter 7 Debtors, 7 Am. Bankr. Inst. L. Rev. 27 (March, 1999).
U.S. General Accounting Office, Methodological Similarities and Differences in Three Reports on Debtors' Ability to Pay, GGD 98-58, March, 1999.
U.S. General Accounting Office, Personal Bankruptcy Debtors' Ability to Pay Their Debts, GGD-98-109R, April, 1998.
U.S. General Accounting Office, Personal Bankruptcy; The Credit Research Center Report on Debtors' Ability to Pay, GGD-98-47, February, 1998 and Personal Bankruptcy: The Credit Research Center and Ernst & Young Reports on Debtors' Ability to Pay GGD 99-58, March, 1999.
Ernst & Young, Chapter 7 Bankruptcy Petitioners' Ability to Repay: The National Perspective, 1997 (March, 1998)
John M. Barron and Michael E. Staten, Personal Bankruptcy: A Report on Petitioners' Ability to Pay (The Credit Research Center Report, October, 1997.)
the amount of creditors' losses from personal bankruptcy proceedings
U.S. General Accounting Office, Personal Bankruptcy: The WEFA Report on the Financial Costs of Bankruptcy, GGD-98-116 R, April, 1998.
Selected examples of research on other issues affecting bankruptcy proceedings
analysis of the methodological problems of doing such studies
Teresa A. Sullivan, Methodological Realities: Social Science Methods and Business Reorganizations, 72 Wash. U. L.Q. 1291 (1994)
analysis of the quality of data in bankruptcy schedules
Steven W. Rhodes, An Empirical Study of Consumer Bankruptcy Papers, 73 Am. Bankr. L. J.653 (1999)
analysis of the demographics of the bankruptcy bar
Lynn M. Lopucki, The Demographics of Bankruptcy Practice, 63 Am. Bankr. L.J. 289 (1989)
analysis of the probability that the U.S. Supreme Court will grant certiorari in bankruptcy cases
Robert W. Lawless and Dylan Lager Murray, An Empirical Analysis of Bankruptcy Certiorari, 62 Mo. L. Rev. 101 (1997)