March 2014 Vol. 112 No. 5 THE REVIEW
ARTICLES

House Swaps: A Strategic Bankruptcy Solution to the Foreclosure Crisis

Lynn M. LoPucki

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes. In Nobelman, however, the Court misinterpreted reasonably clear statutory language and invented legislative history to resolve a three-to-one split of circuits in favor of the minority view that debtors could not modify even the unsecured portions of the mortgages on their principal residences. Courts and commentators have since assumed that modifying home mortgages in bankruptcy is impossible.

This Article presents a legal strategy for modifying home mortgages despite Nobelman. The strategy requires that debtors move out of their houses, lease the houses for one year, file bankruptcy, and propose mortgage modification plans that pay mortgage holders the full current values of the houses. This Article argues that despite the artificiality of a move-out with the intention to return, bankruptcy judges will approve the modification plans. The judges will do so because existing precedent requires approval and because the modification plans will be in the best interests of not only the debtors but also the mortgage holders and the American economy. The strategy will enable hundreds of thousands of homeowners to retain homes they would otherwise have lost to foreclosure.

  READ MORE    //  VIEW PDF

Private Control Over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards

Nina A. Mendelson
READ MORE    //  VIEW PDF
NOTES

Responding to Independent Juror Research in the Internet Age: Positive Rules, Negative Rules, and Outside Mechanisms

Robbie Manhas

Independent juror research is an old problem for jury trials. It invites potentially prejudicial, irrelevant, and inaccurate information to guide jury decisionmaking. At the same time, independent juror research compromises our adversarial system by preventing parties from responding to all the evidence under consideration and obfuscating the record on which the jury’s decision is made. These threats have only increased in the internet age, where inappropriate sources of information are ubiquitous and where improper access is hard to detect. Nevertheless, courts and parties continue to engage in the same inhibitory measures they have employed for decades. This Note argues for change by providing a new conceptual framework for thinking about and categorizing responses to the problem: positive rules (court rules that channel independent juror research and the impulses that govern it into something productive within our adversarial system), negative rules (court rules designed to eliminate independent juror research and its effects by blocking and punishing access to independent sources of information), and outside mechanisms (the parties’ attempts to similarly stamp out this conduct and its effects). After first analyzing the problem of juror research, this Note argues that the old-fashioned system of negative rules and outside mechanisms is an inadequate response to the growing problem. Although this Note offers insight about specific negative rules and outside mechanisms that may continue to be useful in tackling the challenges of independent juror research—for example, by arguing that trials should be prerecorded and videotaped—it ultimately contends that the traditional framework must be supplemented by positive rules, which will promote a more active jury. This Note concludes by endorsing two specific positive rules: allowing the jury to ask questions (of the judge, witnesses, and parties) and providing the jury with an electronic record.

  READ MORE    //  VIEW PDF

Houston, We Have a (Liability) Problem

Justin Silver
READ MORE    //  VIEW PDF
& Other Current Events

Fall Submission Season

MLR’s Articles Office will open its fall submission season on Monday, August 18!  The Articles...

The Ninth Circuit's Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional...

Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education

The United States has exhibited a strong commitment to public education throughout its history. The local...

War Is Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying...

Tariffication of the Coastwise Trade Laws

The coastwise trade laws prohibit foreign vessels and mariners from transporting goods or passengers...
MAILING LIST
Sign Up to Join Our Mailing List