Advanced Legal Research Guide to Bankruptcy
Jennifer Cook, 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. This is because the courts have not had the opportunity to rule on many of the Act’s provisions (i.e., Code amendments) and therefore there is little or no case law to use in making a legal argument as to how the court should rule.
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.
A Place to Start: Secondary Sources
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 2008-2011) 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).
- Another resource specific to questions concerning changes in the law due to BAPCA which is available in print is The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: With Analysis (Alan N. Resnick & Henry J, Sommer, 2005) (KF 1511.597 .R47 2005).
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 that “the term ‘disposable income’ means current monthly income received by the debtor, other than child support payments . . . less amounts reasonably necessary to be expended for the maintenance of the debtor or a dependent of the debtor” and then cites the corresponding Code provision as 11 U.S.C.A. § 1325(b)(2)(A)(ii) (see 8B C.J.S Bankruptcy § 1197 (2010)).
The American Law Reports (A.L.R.’s) can also be helpful for finding information on issues through topic searches. A.L.R.’rs are available through the law library in print, but can also be accessed through Westlaw. AL.R.’s 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/terms alphabetically, and the terms reference relevant annotations in the Reports. The print A.L.R. Fed.’s are located downstairs with the reporters and the Quick Index is shelved along side.
Law Reviews and Journals
If you are looking for a very in-depth discussion on a particular or narrow topic, then the best place to look is probably law reviews and journals. The key to using journal articles is finding articles that are truly on-point. You probably are familiar with conducting full-text searches using databases such as Westlaw, LexisNexis, or HeinOnline, but these types of searches are not always the most fruitful. Another tactic for finding on-point articles is to use an index such as the Index of Legal Periodicals or Legal Resource Index. The first of these is available online through WilsonWeb (select “legal” under “subject area” menu) and the latter through Westlaw. These indexes allow you to search for articles “about” the term/concept/issue with which you are concerned. Also, please see below for a list of some relevant journal titles (all of which are available through HeinOnline):
- The American Bankruptcy Institute Law Review
- The American Bankruptcy Institute Journal
- The American Bankruptcy Law Journal
- Review of Banking and Financial Law
- Rutgers Business Law Journal
Primary Sources: The Law Itself
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.). A print version of the Code, titled Bankruptcy Code, Rules, and Forms (2011) (KF 1511.53 .A194 2011), 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 at: www.gpo.gov/fdsys/browse/collectionUScode.action?collectionCode=USCODE.
All U.S. Bankruptcy Courts are governed by the Federal Rules of Bankruptcy Procedure (vs. the Federal Rules of Civil Procedure), which are promulgated by the U.S. Supreme Court, and are available in print format (KF 1510.99 B357, on reserve) and online (through Westlaw or through FDsys at www.gpo.gov/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 - these are easily accessible online at www.azb.uscourts.gov/default.aspx?pid=16.
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 at www.azleg.gov/ArizonaRevisedStatutes.asp.
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; however, the law library’s subscription to this reporter was cancelled in 2010. Online access to bankruptcy case opinions from the bankruptcy courts, district courts, circuit courts, U.S. Supreme Court, and B.A.P.’s are available through Westlaw and LexisNexis, while cases appealed to the circuit and U.S. Supreme Court can be accessed using LexisNexis Academic (for those without Westlaw or LexisNexis subscriptions).
Given how recently BAPCPA was enacted, and therefore the limited case law precedent available, bankruptcy practitioners need to be familiar with the legislative history behind the 2005 amendments for the purposes of: (1) making arguments for certain interpretations of the amended Code concerning provisions that have not yet been addressed by the courts, and/or (2) arguing for the extension or reversal of interpretations of the amended Code that the courts have already made. The traditional method of unearthing such legislative history is to first obtain the act’s public law number from the United States Code Annotated, and then use that public law number to locate the full bill and other related legislative documents in the United States Code Congressional and Administrative News (U.S.C.C.A.N.). However, there is another, an arguably more efficient way to obtain the legislative history for BAPCPA. That is, using HeinOnline’s U.S. Federal Legislative History Library. This library includes the Sources of Compiled Legislative History Database (Compiled History Database) and the U.S. Federal Legislative History Title Collection (Title Collection) database. For BAPCPA research, only the former of the two databases will prove useful results as the Title Collection does not yet include this act. Within this database are titles that either directly address the topic of BAPCPA’s legislative history, or the contents of which contain or cite to relevant legislative documents. For example, below are two of the titles 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 ProtectionÂ of 2005
Author: Manz, William H.
Publisher: William S. Hein
City: Buffalo, NY
Contents: Actual Documents: Report, Hearing
Other Online Resources
Two blogs that may be helpful in keeping abreast of emerging bankruptcy law issues are:
- The Bankruptcy Litigation Blog (www.bankruptcylitigationblog.com) - 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.
- The Bankruptcy Lawyer’s Blog (http://blog.startfreshtoday.com) - covers more general bankruptcy issues than just the development and interpretation of the law; for example, the blog addresses issues such as whether the right people are being encouraged to file, credit counseling, and the relationship between bankruptcy and the economy. This blog relies heavily on recently published studies, journal articles, and reputable newspaper article for its sources.
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 (http://news.bna.com/bbln). This service is primarily organized in terms of topic and/or how current the item (e.g., case) is. By subscribing to and/or using this service, one can stay aware of whether and when a seminal case such as Hamilton v. Lanning, 130 S. Ct. 2464 (2010) (the Supreme Court case which addressed the definition of “projected disposable income” in 2010) is coming down the pipe. 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 per the Bankruptcy Code sections. Within any given topic the service may provide an assortment of articles tracking legislative, regulatory, bankruptcy procedure rules, or pertinent case law.
Page Updated: 23 March 2012