Debts and the Demands of Conscience: The Virtue of Bankruptcy

Hardcover | June 16, 2017

byHeidi M. Hurd, Ralph Brubaker

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The 'fresh start' that is afforded individual debtors through the discharge doctrines of American bankruptcy law has, to date, defied justification by a single normative principle or theoretical paradigm. The justificatory accounts that have been advanced either fail to explain core doctrinesthat have long defined the right of discharge or invite theoretical challenges that suggest that their descriptive virtues are swamped by their normative or conceptual shortcomings. This book presents a taxonomy of traditional justifications of bankruptcy and subjects them to critical evaluation. It then seeks to offer a new justification of bankruptcy's 'fresh start' doctrines - one that takes its inspiration from a quite different moral tradition than those that haveinformed past efforts to justify and explain our enduring societal willingness to release people from onerous financial obligations. The book argues that personal debt relief is fully vindicated not by a utilitarian theory, nor by a distributive justice theory, nor by a retributive theory, nor byany other rights- or duties-based theory that is preoccupied with moral claims that particular creditors or debtors might proffer. Rather, the long-standing institution of discharge in bankruptcy is best explained by an aretaic, or virtue-based, theory that concerns itself with the obligations thatthe rest of us have to be charitable towards those who are unable to repay their debts. The fresh start that bankruptcy gives to those who have been shackled by overwhelming debt is justified not by its effects on creditors, debtors, or future market actors, but by its satisfaction of the demands of individual charity to which all citizens are subject. Bankruptcy's discharge of thedebts of those who have become financially desperate is best thought to be an institution that aggregates others' demands of good character so as to permit citizens for whom debt-forgiveness is a personal virtue to live in a society that fulfils that virtue.

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The 'fresh start' that is afforded individual debtors through the discharge doctrines of American bankruptcy law has, to date, defied justification by a single normative principle or theoretical paradigm. The justificatory accounts that have been advanced either fail to explain core doctrinesthat have long defined the right of dischar...

Ralph Brubaker is a Professor of Law at the University of Illinois College of Law, where he teaches courses in bankruptcy, contracts, civil procedure, and conflict of laws. Professor Brubaker clerked for Judge James K. Logan of the United States Court of Appeals for the Tenth Circuit, and he practiced in the bankruptcy and corporate r...

other books by Heidi M. Hurd

Format:HardcoverDimensions:250 pagesPublished:June 16, 2017Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199642966

ISBN - 13:9780199642960

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Table of Contents

PrefacePart I: Utilitarian Theories of the Bankruptcy Discharge1. Three Examples of Utilitarian Theories of the Bankruptcy Discharge2. Normative Complaints with Utilitarian Theories of the Bankruptcy Discharge3. Descriptive Complaints with Utilitarian Theories of the Bankruptcy DischargePart II: Rights- and Duties-Based Theories of the Bankruptcy Discharge4. The Contractarian Theory of the Bankruptcy Discharge5. The Paternalistic Theory of the Bankruptcy Discharge6. The Retributive Theory of the Bankruptcy DischargePart III: Distributive Justice (Rehabilitationist) Theories of the Bankruptcy Discharge13. Rehabilitationist Theories of the Bankruptcy Discharge14. Normative Complaints with Rehabilitationist Theories of the Bankruptcy Discharge15. Descriptive Complaints with Rehabilitationist Theories of the Bankruptcy DischargePart IV: Defending A (New) Aretaic Theory of the Bankruptcy Discharge16. An Aretaic Theory of the Bankruptcy Discharge17. Answering Normative Complaints with an Aretaic Theory of the Bankruptcy Discharge18. Answering Descriptive Complaints with an Aretaic Theory of The Bankruptcy DischargeConclusionBibliography