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Eliminating the Judicial Function in Consumer Bankruptcy

American Bankruptcy Law Journal, Vol. 81, No. 4, 2007

26 Pages Posted: 17 Jan 2008  

Rafael I. Pardo

Emory University School of Law

Abstract

The centerpiece of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has been the means test, a formulaic statutory directive pursuant to which courts are to presume abuse of the bankruptcy system by Chapter 7 debtors who have an ability to repay past debts with future income. This Essay provides a new insight into means testing by arguing that, more than anything else, it has brought about a significant change in the institutional design of bankruptcy courts: namely, the increased blurring of administrative and judicial functions. The Essay concludes that this development should be cause for concern as it has the potential to erode the judicial character of the consumer bankruptcy system.

Keywords: administration, bankruptcy, courts, judges, judicial function, judicial discretion, means test

Suggested Citation

Pardo, Rafael I., Eliminating the Judicial Function in Consumer Bankruptcy. American Bankruptcy Law Journal, Vol. 81, No. 4, 2007. Available at SSRN: https://ssrn.com/abstract=1084668

Rafael I. Pardo (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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