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52 U. Louisville L. Rev. 39 (2013-2014)
Re-Purposing Dram Shop Law to Subordinate the Claims of Reckless Bartenders of Credit Drunks: In Bankruptcy, This One should be on the House

handle is hein.journals/branlaj52 and id is 47 raw text is: 


                          F. Stephen Knippenberg*

                I said God damn, God damn the Pusher man

                                I. INTRODUCTION

     It has been an era of finger wagging at debtors and arming the credit
 community.2 Revised Article 9 heaped advantages upon secured creditors
 to further facilitate secured lending.3 The Bankruptcy Abuse Prevention
 and Consumer Protection Act of 20054 (BAPCPA            or the Act) introduced
 daunting provisions calculated to dissuade consumer debtors from filing for
 bankruptcy at all and to coerce them into Chapter 13 otherwise,5 while at
 the same time it contracted the scope of the discharge in both Chapter 7 and
 Chapter 13 bankruptcy.6 The outcome was a prodigious shift in bankruptcy
 policy in the direction of creditor recovery and away from the fresh start.7

    * Floyd and Martha Norris Chair and Professor of Law, University of Oklahoma College of Law.
      STEPPENWOLF, The Pusher, on STEPPENWOLF (Dunhill Records 1968) (words and music by
Hoyt Axton).
    2 See Charles Jordan Tabb, The Death of Consumer Bankruptcy in the United States?, 18 BANKR. DEV. J.
 1, 9-12 (2001).
    3 See generally Lawrence Ponoroff & F. Stephen Knippenberg, Having One's Property and Eating
It Too: When the Article 9 Security Interest Becomes a Nuisance, 82 NOTRE DAME L. REV. 373 (2006).
    4 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119
Stat. 23 (codified in scattered sections of 11 U.S.C.).
    5 Mary Jo Wiggins, Conservative Economics and Optimal Consumer Bankruptcy Policy, 7
THEORETICAL INQUIRtES L. 347, 355 (2006) (A chief goal of the recent revisions to the Bankruptcy
Code is to force more debtors to repay their debts in a Chapter 13 repayment plan rather than have them
discharged in a Chapter 7 liquidation.).
    6 See id at 355-57. Indeed, the BAPCPA did a great many other things: in addition to imposing
credit counseling briefing requirements for eligibility, 11 U.S.C. § 109(h)(1) (2012), the Act increases
bankruptcy filing fees, 28 U.S.C. § 1930 (2006), expands the list of nondischargeable debts, 11 U.S.C. §
523, and extends the bar to successive Chapter 7 discharges from six to eight years, id. § 727(a)(8). For
the first time, there is a bar to multiple Chapter 13 discharges, id § 1328(f), and the addition of several
debts to the list of exceptions to discharge marked the end of the full performance or super discharge.
See, e.g., id § 523(aX2) (fraud); id. § 523(a)(3) (unscheduled claims); id. § 523(a)(4) (embezzlement
and the like); id. § 523(a)(1)(B) (certain withholding taxes). A more insidious deterrent for debtors is an
oblique assault in the form of burdens the Act imposes on their would-be lawyers. See generally Jean
Braucher, The Challenge to the Bench and Bar Presented by the 2005 Bankruptcy Act: Resistance Need
Not Be Futile, 2007 U. ILL. L. REV. 93.
    7 Perhaps lurch might be a more accurate term. In any case, the shift represents a sharp reversal of
historical course. Jacob Ziegel, Facts on the Ground and Reconciliation of Divergent Consumer

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