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20 Am. Bankr. Inst. L. Rev. 611 (2012)
Race Disparity in Bankruptcy Chapter Choice and the Role of Debtors' Attorneys

handle is hein.journals/abilr20 and id is 623 raw text is: RACE DISPARITY IN BANKRUPTCY CHAPTER CHOICE AND THE ROLE OF DEBTORS' ATTORNEYS JEAN BRAUCHER,* Dov COHEN, AND ROBERT M. LAWLESS INTRODUCTION We are grateful for the attention the American Bankruptcy Institute Law Review is giving to our research concerning racial disparity in bankruptcy chapter choice and the role debtors' lawyers may play in producing it. We believe that all players in the consumer bankruptcy system should be concerned about just results in the system in general and racial justice in particular. Thus, although we already have presented this research in the Journal of Empirical Legal Studies with great attention to methodological concerns,' in these pages we will summarize our findings and analysis for an audience of bankruptcy professionals. We will avoid technical presentation of the data. Where we discuss differences we observed, these differences were statistically significant unless we otherwise note. The relevant research involves two different studies. These studies in turn need to be understood against a background of other research concerning huge variation in local practices in the bankruptcy system, known as local legal culture, and the important role of professional gatekeepers such as lawyers, trustees, and judges in determining how bankruptcy is used. After briefly describing the consumer bankruptcy options and relevant prior research in Part I, we summarize here findings from the two studies documenting racial sorting in bankruptcy chapter choice and the likely influence of debtors' lawyers. Part II describes the first study, which looked at real-world cases in a large national random sample and found that African Americans were about twice as likely as debtors of all other races to file chapter 13 as opposed to chapter 7. Furthermore, this racial disparity cannot be fully accounted for either by local legal culture, the financial and legal characteristics of the cases, or the debtor's nonracial demographics. Part III describes the second study, which involved a national random sample survey of attorneys using a hypothetical fact pattern. This study found that on the same financial facts, with the same legal implications, attorneys were more likely to recommend that an African-American couple (suggested by names and other indicators) file in chapter 13 than they were for a white couple. This difference in recommendations was equivalent to about two-thirds of the real world racial disparity in chapter choice found in the first study. We conclude with some analysis and some limited initial proposals. Roger C. Henderson Professor of Law, University of Arizona. ** Professor of Psychology, University of Illinois. *** Professor of Law, University of Illinois. Jean Braucher, Dov Cohen & Robert M. Lawless, Race, Attorney Influence, and Bankruptcy Chapter Choice, 9 J. E1VPIRICAL L. STUD. 393 (2012). 611

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