A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy

48 Pages Posted: 17 Mar 2019

See all articles by Pamela Foohey

Pamela Foohey

Indiana University Maurer School of Law

Date Written: February 25, 2019

Abstract

Across the criminal and civil justice systems, research regarding procedural justice — feeling that one has a voice, is respected, and is before a neutral and even-handed adjudicator — shows that people’s positive perceptions of legal processes are fundamental to the legal system’s effectiveness and to the rule of law. About a million people file bankruptcy every year, making the consumer bankruptcy system the part of the federal court system with which people most often come into contact. Given the importance of bankruptcy to American families and the credit economy, there should exist a rich literature theorizing and investigating how people’s perceptions of consumer bankruptcy’s procedures advance the system’s goals. Instead, bankruptcy’s procedures have received strikingly little scholarly attention.

This Article begins to fill this significant gap by combining procedural justice and related research with what is known about the people who file bankruptcy to craft a theory of consumer bankruptcy’s procedural deficiencies. If consumer bankruptcy is procedurally bankrupt, as this Article posits, then the “fresh start” delivered to struggling households is not nearly as fresh as presumed, which will hamper people’s return to their communities and to the credit economy. As such, the Article proposes two sets of changes to the consumer bankruptcy process — one modest and one more drastic. Both of these new deals for debtors promise to enhance people’s perceptions of bankruptcy’s procedural justice and thereby the legitimacy of the system.

Keywords: Consumer Bankruptcy, Procedural Justice, Expressive Value of Law, Emotion and Law, Consumer Credit

JEL Classification: K35, K40, K41

Suggested Citation

Foohey, Pamela, A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy (February 25, 2019). Boston College Law Review, Vol. 60, No. 8, 2019. Available at SSRN: https://ssrn.com/abstract=3341473

Pamela Foohey (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-1257 (Phone)

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