One of the activities that the CLR co-sponsored last year was the conference by our excellent bankruptcy colleagues Ray Warner and Keith Sharfman (who together run the Center for Bankruptcy Studies at St. John’s) on Religion and Bankruptcy. You can see some discussion of the conference here, here, here, and here.
As often happens to me, I came upon a neat topic of discussion months after the conference was over. Sturges v. Crowninshield (1819), authored by Chief Justice Marshall, dealt in part with New York’s power to create a “bankrupt” law (a bankruptcy law) or instead “whether the power is exclusively vested in the congress of the United States” pursuant to Article I section 8 which gives Congress authority to enact “uniform Laws on the subject of Bankruptcies throughout the United States.” It’s not my area, and so I am likely missing lots of important details (please fill them in), but I’m apprised by some bankruptcy folks that the old rule was that states could have bankruptcy rules so long as Congress did not pass a federal one, which meant that for much of the period before 1898, states did have, and could have, their own bankruptcy laws.
Crowninshield is a long and extremely complicated case, involving the Contracts Clause as well. But I thought to highlight one interesting piece of dicta in a later portion of the decision involving the relationship of bankruptcy and the religious ideas of the discharging of debt, expiation, and the alleviation of public misery and poverty. Note also the natural law language used by Marshall in discussing the states’ “inherent” power to achieve these aims, as well as the way in which the Court wrestles with the problems of prison, debt, and freedom in the cultivation of good citizenship.
Lyman Johnson (Washington and Lee U. & U. of St. Thomas, St. Paul Schools of Law) has posted Debarring Faithless Corporate and Religious Fiduciaries in Bankruptcy. This paper was first presented in September 2011, at the “Religion and Bankruptcy” Conference, hosted by the Center for Law and Religion. Marc DeGirolami liveblogged the presentation for the CLR Forum. The abstract of Johnson’s article follows.
Fiduciary duties for the top governance officials of both business and religious organizations demand faithfulness to the institution’s mission, a seemingly strict demand. Meaningful sanctions for breach, however, are difficult to obtain and may not deter future misconduct, including that kind of conduct leading to organizational bankruptcy. This article advocates that, to attain both special and general deterrence, bankruptcy law should look to other regulatory regimes and permit a bankruptcy court to debar faithless secular and ecclesiastical fiduciaries from holding certain leadership positions. Although written shortly before the 2012 Supreme Court Hosanna-Tabor decision, that opinion – addressing the “ministerial exception” for employees − does not alter the constitutional assessment of the position argued for in this article with respect to harm-causing, non-ministerial governing officials.
David A. Skeel Jr. (U. of Penn. Law School) has posted Hauerwasian Christian Legal Theory. The abstract follows.
This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.
After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.
Haider Ala Hamoudi (University of Pittsburgh – School of Law) has posted The Surprising Irrelevance of Islamic Bankruptcy. This paper was first presented on September 16, 2011, at the “Religion and Bankruptcy: Perspectives Thereon and Treatment Therein” Symposium, held at St. John’s School of Law, and co-hosted by the Center for Law and Religion. The abstract follows. – ARH
By any standard of logic, the influence of the shari’a should be far more relevant in the area of bankruptcy than it is. Understanding the sources of the broad marginalization of shari’a as it relates to modern bankruptcy law in the Muslim world tells us much about the sharply limited legal scope of Islamic revivalism as concerns economic and commercial matters and perhaps even a little bit about Islamism’s limited legal ambitions more generally.
This afternoon, I have the pleasure of introducing the conference keynote speaker, Geoffrey Miller of NYU. Geoff’s talk, “Law and Economics versus Economic Analysis of Law,” distinguishes the former discipline from the latter, using Robert Aumann’s famous economic analysis of Talmudic law as an example. Geoff argues that the economic analysis of law offers elegance, but that law and economics offers a rich understanding of complex real-world institutions like courts and legal systems. Taken together, the two disciplines offer “complementary means for obtaining information about the social world.” — MLM
Theresa J. Pulley Radwan (Stetson University College of Law) presents her paper “Sword or Shield: Use of Tithing to Establish Nondischargeability of Debt Following Enactment of the Religious Liberties and Charitable Donation Protection Act,” at the Symposium hosted by the ABI Law Review, Center for Bankruptcy Studies and CLR.
Also presenting, Thomas L. Shriner Jr. (Foley & Lardner LLP).
Moderating, G. Ray Warner (St. John’s School of Law)
The American Bankruptcy Institute Law Review, Center for Bankruptcy Studies and Center for Law and Religion at St. John’s School of Law are hosting a conference, “Religion and Bankruptcy,” at the Law School’s Queens campus on Friday, September 16. The conference keynote will be given by Geoffrey Miller (NYU). A description follows; the full schedule is here. — MLM
From the time of its creation and throughout its evolution, bankruptcy law has affected and been affected by religion. Important aspects of current bankruptcy law, such as the discharge of debt and the exemption of personal property, originated in religious traditions before making their way into secular law. At the same time, religious individuals and institutions are themselves often parties in bankruptcy cases, and a number of Bankruptcy Code provisions specifically address religious matters. This symposium will bring together leading bankruptcy experts and thinkers who will examine both sides of this relationship.
Jason J. Kilborn (The John Marshall Law School) has posted Foundations of Forgiveness in Islamic Bankruptcy Law: Sources, Methodology, Diversity. The abstract follows. –YAH
This article provides a detailed examination of the structure, sources, and ultimate content of the Islamic law of distressed debt. With specific illustrations from the Qur’an, sunna, and fiqh (Islamic jurisprudence), it orients non-specialists on the path to understanding where Islamic law comes from, how it is structured, and what its most salient provisions say about the proper treatment of insolvent debtors. Tracing the various divisions within Islam on the proper identification of shari’a, this article reveals a rich tapestry of contrasting views among and within the shi’a and sunni doctrinal schools of thought. Both the original sources and the secondary juristic analyses of these sources struggle with a delicate balance between forcing debtors to pay their debts while enjoining creditors to be patient and forgiving with respect to distressed debtors. It is hoped that this detailed and sensitive discussion will enhance the increasingly frequent insolvency law reform conversations between Westerners and those in Muslim nations by encouraging the former to respectfully engage with classical Islamic sources and methods, as opposed to advancing arguments based merely on Western views of economic expediency, efficiency, and experience.