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.

What Is HeinOnline?

With comprehensive coverage of government documents and more than 2,400 journals from inception on hundreds of subjects such as political science, criminal justice, and human rights, HeinOnline is an affordable option for colleges and universities. Documents have the authority of print combined with the accessibility of a user-friendly and powerful database.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Already a HeinOnline Subscriber?