Bankruptcy Law Advanced Research Guide
Law Library Fellow
Disclaimer: This guide is intended as a research guide only and does not constitute legal advice. This guide is not exhaustive of all materials related to bankruptcy law and is only meant to be a beginning point for your research. For specific legal issues and questions you should seek the advice of a licensed, experienced, bankruptcy attorney.
This guide is intended to help patrons of the Daniel F. Cracchiolo Law Library - particularly law students and non-bankruptcy attorneys - locate and use information concerning bankruptcy law issues. The guide is designed to point the law student or neophyte bankruptcy practitioner to valuable primary and secondary sources; with respect to state primary materials, this guide focuses on those sources specific to Arizona.
While statutory bankruptcy law is primarily derived from the Federal Bankruptcy Code (11 U.S.C. et seq., hereinafter the Code), it also depends heavily on state exemption law. Similarly, while the Federal Rules of Bankruptcy Procedure govern the U.S. Bankruptcy Courts in all districts, there are also sets of local rules for each district (e.g. the Local Rules for the U.S. Bankruptcy Court, District of Arizona).
Like other areas of law, bankruptcy research/practice requires both knowledge of the Code and knowledge of relevant case law interpreting the Code. Also, since the Code was significantly amended in 2005 by the Bankruptcy Abuse Prevention and Consumer Protection Act (hereinafter BAPCPA), it may be necessary for one to find the legislative history of an amended provision in order to most accurately predict a court’s ruling regarding the amended provision.
Please Note: Since access to electronic materials via some databases requires user subscription, and therefore can only be accessed from the Daniel F. Cracchiolo Law Library by law school faculty and students, this guide attempts to reference print materials when they are available.
Say you encounter what is, at least to you, a new or novel bankruptcy issue - an issue for which you do not even know what the relevant section(s) of the Code might be. Where would you start?
Here are three resources where you can research by topic and provide at least a basis with which to conduct further investigation:
- One immensely valuable source is the Norton Bankruptcy Law and Practice (3d. ed., Thomson Reuters 2008-2015) treatise. This resource is no longer available in print through the University of Arizona, but it is available through Westlaw if you have a Westlaw subscription.
- A resource that is available to all patrons for use in the law library is the e-book (on CD) A Treatise on the Bankruptcy Law of the United States (Harold Remmington, 2008) (KF 352 .R57 2008 Disc 25).
- A resource that may be useful for domestic law practitioners is The Family Lawyer’s Guide to Bankruptcy: Forms, Tips, and Strategies (Shayna M. Steinfeld and Bruce R. Steinfeld, 2014) (KF1535.D58 S74 2014).
- Visualizing Bankruptcy (Laura B. Bartell, 2011) (KF1524.85 .B37 2011) and Elements of Bankruptcy (Douglas G. Baird, 2014) (KF1524 .B32 2014 Law Reserve) are also both useful and concise resources.
These treatises can give the bankruptcy neophyte the rudimentary understanding of concepts necessary for comprehension of the applicable Code sections and case law.
Legal encyclopedias can be used in much the same way as treatises - that is, one can research by topic and so gain a rudimentary understanding of unfamiliar concepts or terminology. The encyclopedia entries also contain annotations referencing cases and so can be a great place to start to find relevant case law. The two main legal encyclopedias are American Jurisprudence Second (AmJur2d) and Corpus Juris Secundum (C.J.S.).
For an example of something one might look for in an encyclopedia, I used C.J.S. to find the term “disposable income.” I found the term in the index, as a sub-term under Bankruptcy. C.J.S. explains, “The term ‘disposable income’ means current monthly income received by the debtor, . . . less amounts reasonably necessary to be expended for the maintenance of the debtor or a dependent of the debtor . . .” (noting the exceptions and qualifications to this rule) and then cites the corresponding Code provision as 11 U.S.C.A. § 1325(b)(2)(A)(i) (see 8B C.J.S Bankruptcy § 1197 (2014)).
The American Law Reports (A.L.R.) can also be helpful for finding information on issues through topic searches. A.L.R. is available through the law library in print, but can also be accessed through Westlaw. The A.L.R. series function both as digests of leading cases on given topics and contain in-depth annotations for those topics. For bankruptcy research, you will want to use American Law Reports Federal (A.L.R. Fed.) as bankruptcy law is federal law. The easiest way to access a particular topic - if using the print version - is through the A.L.R. Fed. Quick Index. The Quick Index will allow you to search topic and terms alphabetically, and the terms reference relevant annotations in the Reports. The print A.L.R. Federal is located downstairs with the reporters and the Quick Index is shelved next to it.
Law Reviews and Journals
If you are looking for a very in-depth discussion on a specific topic, then the best place to look is probably law reviews and journals. One tactic for finding on-point articles is to use an index such as LegalTrac or Legal Resource Index (through Westlaw and Lexis Advance).
Also, please see below for a list of some relevant journal titles (all of which are available through HeinOnline and LexisNexis Academic Universe):
- The American Bankruptcy Institute Law Review
- The American Bankruptcy Law Journal
- Emory Bankruptcy Developments Journal
- Review of Banking and Financial Law
- Rutgers Business Law Review (not in LegalTrac)
Available through LexisNexis Academic Universe and also available free online from 2000-present at http://journal.abi.org/
- The American Bankruptcy Institute Journal (not in LegalTrac)
Bankruptcy law is regulated primarily by federal statute - the Bankruptcy Code - but also by state exemption law. In addition, while all bankruptcy courts are regulated by federal bankruptcy rules, each district has its own set of local rules to which attorneys and parties must adhere.
The Bankruptcy Code (Code) is found in Title 11 of the United States Code (11 U.S.C. § 101 et seq.). The most current print version of the Code, titled Bankruptcy Code, Rules, and Forms (KF 1511.53 .A194), is on reserve in the Law Library. The online, annotated version of the Code can be accessed through Westlaw while an unannotated (i.e., with no case annotations), online version can be accessed through the Government Printing Office’s FDsys website.
All U.S. Bankruptcy Courts are governed by the Federal Rules of Bankruptcy Procedure (FRBP), which are promulgated by the U.S. Supreme Court.The FRBP are different from the Federal Rules of Civil Procedure, and are frequently published in the same volume as the Bankruptcy Code, as in the volume cited above or in The Mini-Code & Mini-Rules Combo (KF 1510.99 M42 2014) available on reserve (you can also find the FRBP through Westlaw or through FDsys). Each bankruptcy court is also governed by a set of local rules for its district. The U.S. Bankruptcy Court, District of Arizona, is governed by the Arizona Bankruptcy Local Rules, which are easily accessible online.
Arizona State Exemptions
Bankruptcy law is primarily a matter of federal statute, but also relies heavily on state exemption statutes. Exemption statutes declare certain property of the debtor (e.g.. the debtor’s homestead or other personal property) to be exempt from the bankruptcy estate. [Note: There are several states, NOT including Arizona, which allow the debtor to choose whether to use federal OR state exemptions. Those states are: Arkansas, Connecticut, Washington, D.C., Hawaii, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Washington, and Wisconsin.] In Arizona, the exemption statutes are found in Arizona Revised Statutes Title 33, Chapter 8 (A.R.S. §§ 33-1101 to 33-1153). The print, annotated Arizona Revised Statutes are available on the first floor of the law library in the Arizona section. The unannotated statutes are available online. The Bankruptcy Court website also publishes information on Exemptions in Arizona.
Bankruptcy cases are heard by the U.S. Bankruptcy Courts, which themselves are subsets of the Federal District Courts. Therefore, in Arizona, bankruptcy cases first come before the U.S. Bankruptcy Court, District of Arizona. Bankruptcy cases may be appealed to the appropriate district court, circuit court, U.S. Supreme Court, or in certain circuit jurisdictions to the circuit’s Bankruptcy Appellate Panel (B.A.P.) (currently only the 1st, 6th, 8th, 9th, and 10th circuits have convened B.A.P.’s). Print versions of bankruptcy cases are available through West’s Bankruptcy Reporter, located downstairs in the reporter section for the years 1980-2010. Online access to bankruptcy case opinions are available through Westlaw and LexisNexis, and also through LexisNexis Academic (for those without Westlaw or LexisNexis subscriptions).
Available via HeinOnline’s Compiled History Database:
- Title: A Legislative History of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
Author: Jensen, S.
Reference: 79 The American Bankruptcy Law Journal 485
Contents: Cites to Documents: Discussion, Lists Cites
- Title: Bankruptcy Reform the Legislative History of the Bankruptcy Abuse Prevention and Consumer Protection of 2005
Author: Manz, William H.
Publisher: William S. Hein
City: Buffalo, NY
Contents: Actual Documents: Report, Hearing
Two blogs that may be helpful in keeping abreast of emerging bankruptcy law issues are:
- The Bankruptcy Litigation Blog—Focuses on recent developments in bankruptcy law, primarily through discussion of cases now before the courts. The site also provides a convenient topic menu if you are looking for more specific discussions such as those on U.S. Supreme Court cases or Circuit Splits.
- Bankruptcy Law Network—Covers more general bankruptcy issues written by experienced practitioners in the bankruptcy field and consumer advocates.
The BNA Bankruptcy Law Reporter looseleaf service is available through the law library’s listing of databases under BNA Electronic Subscriptions. However, if you are not a student or not using a law library computer, you will need a BNA subscription to access the BNA Bankruptcy Law Reporter online. This service is primarily organized in terms of topic and/or how current the item (e.g., case) is.
The services “finding tools” allow one to: (1) search the topical index, (2) browse the topical index, (3) browse recent cases alphabetically, and (4) browse articles by the Bankruptcy Code sections. Within any given topic the service may provide articles tracking legislative, regulatory, bankruptcy procedure rules, or pertinent case law.
Page Updated by Jill Sturgeon: 26 March 2015