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71 Am. Bankr. L.J. 483 (1997)
A Principled Approach to Consumer Bankruptcy

handle is hein.journals/ambank71 and id is 507 raw text is: A Principled Approach to Consumer Bankruptcy by Elizabeth Warren* By the second week of a basic course in bankruptcy, almost any law stu- dent can recite in his or her sleep the two competing goals of consumer bank- ruptcy:' a 'fresh start for debtors and equality of distribution for creditors. The two phrases are the twin stars of consumer bankruptcy, reflecting the need for relief and the need for fairness, the balanced objectives of the system. Like all good generalizations, nearly everyone can sign on to these two principles. Creditors can embrace the idea of giving debtors a fresh start, while they simultaneously attack a system that they argue gives debtors a head start. Equality sounds even better, except for the secured creditors, the priority creditors, the creditors seeking reaffirmation agreements, the creditors holding allegedly nondischargeable debts, the creditors with obliga- tions against codebtors, and so on. In the rhetorical wars, two principles like fresh start and equality can encompass any flourish a debater or lobbyist wishes to employ. Unfortunately, two abstract principles alone provide little specific guidance for reviewing the consumer bankruptcy laws. The question of guiding principles has, by necessity, been more than rhe- torical for the National Bankruptcy Review Commission (Commission). The Bankruptcy Reform Act of 1994 outlined the duties of the Commission: (1) to investigate and study issues and problems relating to title 11, United States Code (commonly known as the Bankruptcy Code); (2) to evaluate the advisability of proposals and current ar- rangements with respect to such issues and problems; (3) to prepare and submit to the Congress, the Chief Jus- *Leo Gottlieb Professor of Law, Harvard Law School. I served as the Reporter to the National Bank- ruptcy Review Commission, but all opinions expressed here are my own and not those of the Commission or any individual member of the Commission. I want to thank Melissa Jacoby, Senior Staff Attorney for the National Bankruptcy Review Commission, for her unflagging work on the Commission's recommenda- tions that are reproduced in the Appendix and for her thoughtful comments on this Article. Her work has been extraordinary in more ways than I can count. 'I know this to be so because I teach bankruptcy at 8:30 A.M., and I have seen many students recite these principles either in a sleep or near-sleep state.

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