A Fighting Chance

According to Judge Ginsberg, “The charge to the commission was to (1) investigate and study issues and problems relating to the bankruptcy code; (2) evaluate the advisability of proposals and current arguments with respect to such issues and problems; (3) prepare and submit a report; and (4) solicit divergent views of all parties concerned with the operation of the bankruptcy system.” “Interview with Bankruptcy Judge Robert E. Ginsberg, Acting Chair of the National Bankruptcy Review Commission,” Third Branch News, February 1996.

pack of small children and a pile of bills: In all our bankruptcy studies, we adhered to strict confidentiality protocol to protect the identities of participants. See note, “Five part-time jobs .…” For more linkages between domestic violence and financial distress, see, for example, Angela Littwin, “Coerced Debt: The Role of Consumer Credit in Domestic Violence.” California Law Review 100 (2012): 1–74. Similarly, in our research we interviewed a bankruptcy trustee who said: “I’m in the abuse-prevention business. Every time I help a family get straightened out financially, I figure I saved someone a beating.” The Two-Income Trap, 12.

a bankruptcy case he had won in the United States Supreme Court: In Farrey v. Sanderfoot, Brady Williamson represented the winning plaintiff, holding that the debtor could not use the homestead exemption provision of the Bankruptcy Code to avoid a valid obligation to a former spouse as stipulated in their divorce decree. See Farrey v. Sanderfoot, 500 US 291 (1991).

northern or southern, black or white, male or female: While there are some demographic differences between people in bankruptcy and the general population, for the most part the differences are modest, and people in bankruptcy are generally representative in terms of race, gender, and age. For more about the race of people who file for bankruptcy, see Elizabeth Warren, “The Economics of Race: When Making It to the Middle Is Not Enough,” Washington & Lee Law Review 61 (Symposium Issue 2004): 177. For gender and bankruptcy, see Elizabeth Warren, “What Is a Women’s Issue? Bankruptcy, Commercial Law and Other Gender-Neutral Topics,” Harvard Women’s Law Journal 25 (2002): 19 (Twenty-fifth Anniversary Issue); see also Teresa Sullivan and Elizabeth Warren, “More Women in Bankruptcy,” American Bankruptcy Institute (July 30, 1999). For age and bankruptcy, see Deborah Thorne and Elizabeth Warren, “Bankruptcy’s Aging Population,” Harvard Law & Policy Review 3 (Winter 2009); see also Teresa Sullivan, Deborah Thorne, and Elizabeth Warren, “Young, Old and In Between: Who Files for Bankruptcy?,” Norton Bankruptcy Law Advisor 1 (September 2001). For an overall discussion of the demographics of people in bankruptcy, see also The Fragile Middle Class, 36–59.

proves to be the darkest secret of their entire lives: For more discussion of stigma and shame often associated with bankruptcy, see note, “great defeat.”

best-organized, best-funded lobbies in America: See, for example, the Center for Responsive Politics, which documents the dramatic rise in campaign contributions from finance and credit companies, from 1990 through the 2000s. They also found that by 1998 the Finance/Insurance/Real Estate industry was the number one industry in terms of resources spent on lobbying. See Michael Bechel, “Finance and Credit Companies Lobby Lawmakers as Congress Moves to Aggressively Regulate Them,” OpenSecretsBlog (November 19, 2009). See also “Lobbying-Analysis” at OpenSecrets.org.

economic failure as akin to moral failure: “A Problem That Can Be Solved” subsection of Chapter 6, Judge Edith H. Jones and Todd J. Zywicki, “It’s Time for Means-Testing,” Brigham Young University Law Review (1999): 177–249. For more on Judge Jones’s point of view, see: “The escalation in filings has revealed many little facts, the cumulative proof that in case after case, bankruptcy’s powerful debt-relief tools are often misused.… At one time personal shame and social stigma would have bedeviled people filing bankruptcy, and their credit rating would have been ruined.” Edith H. Jones, Foreword, “The Bankruptcy Galaxy,” South Carolina Law Review 50 (1999): 269, 271; “I would like to inject the moral issue here because I do think that it is a very important matter of personal integrity and honor not to take on obligations beyond one’s means and if one has been caught in a bind to make every effort to pay them back.… My moral upbringing suggests to me that what is good to me as a moral person has to be applied to everybody across the board as the standard.” Also, “One thing that has become very plain to us in these hearings is that a lot of people who file bankruptcy over-indulged.” Edith Jones et al., “Panel Discussion, Consumer Bankruptcy,” Fordham Law Review 67 (1999): 1315, 1347, 1353.