In Response to Rafael I. Pardo's the Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy

Abstract

In this essay, I attempt two impossible tasks. First, limited to approximately 1,000 words, I respond to Professor Rafael Pardo’s towering 78 page article, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy. Second, I am resisting the temptation to footnote every point I make, and so resort to what is for me a radical task of not using my usual number of footnotes, in contrast to his nearly 500 (most of them heavily annotated and elaborated). There can be little doubt that Professor Pardo has done for student loan debt and its “Undue Hardship” (UH) provisions what Senator (née Professor) Elizabeth Warren did for consumer and family bankruptcy — turn it inside out, study its nooks and crannies, and explain its nuances and intricacies. For this, we all owe him a great debt of gratitude and praise. Reading Thicket almost makes me cry, it is so encyclopedic, thorough, and detailed. Added to his earlier works, he has become among the most accomplished researchers and surveyors of this vast area. And one gets the impression that he has not even scratched the surface, as there are many miles to go before he sleeps. He has begun to litigate these issues — a point to which I will return — but he still has not fully gotten his arms around the crucial need for a better discursive narrative in this field.