Lynn Lopucki

Lynn Lopucki
University of California, Los Angeles | UCLA · School of Law

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74
Publications
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1,547
Citations

Publications

Publications (74)
Article
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Of the large, public companies that seek to remain in business through bankruptcy reorganization, only 70 percent succeed. The assets of the other 30 percent are absorbed into other businesses. Success is important both because it is efficient and because it preserves jobs, communities, supplier and customer relationships, and tax revenues. This Ar...
Article
Since the price peak in 2006, home values have fallen more than 30%, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative...
Article
Although artfully drafted, the Delaware General Corporation Law (DGCL) is unreadable. Sentences are excessively long – one rambles on for nearly two pages. The DGCL sometimes follows the standard convention that divides complex statutory sentences into multiple paragraphs. But more often the DGCL defies convention by burying several sentences on di...
Article
Since the adoption of Uniform Commercial Code Article 9 in American jurisdictions in the 1960s, scholars have debated the desirability of the extraordinary priority given to secured creditors. Through a point-by-point comparison of English and American security interests, this article provides a new perspective on that long-running debate. The comp...
Article
Bankrupt Enron paid well over a billion dollars in cash to bankruptcy lawyers, financial advisors, and other bankruptcy professionals. The managers of most bankrupt companies pay the professionals with money that would otherwise have gone to creditors, employees, shareholders, or to saving the companies. To prevent excessive payments, the bankruptc...
Chapter
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By the conventional view, case outcomes are largely the product of courts’ application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Tho...
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This Article reports the results of an empirical study showing that the United States bankruptcy courts routinely authorize and tolerate professional fee practices that violate the Bankruptcy Code and Rules. The study documents the existence of three such illegal practices. The Ordinary-Course-Professionals Practice excuses some or all professional...
Article
In an empirical study of professional fees and expenses in 74 large public company bankruptcies concluded 1998–2003, we found that (1) controlling for the trend over time and the geographical location of the cases, company size (measured by assets), case duration (measured in days), and the number of parties (measured by the number of professional...
Article
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Over the past decade, technology has transformed the federal courts. The federal courts moved from paper to electronic filing, resolved daunting privacy problems, and made their files available on PACER - thereby becoming the world's most transparent court system. Now they have already embarked on what may be a second, equally important transformat...
Article
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In Bankruptcy Fire Sales, 106 Michigan Law Review 1 (2007), we compared the recoveries from the going-concern bankruptcy sales of 25 large, public companies with the recoveries from the bankruptcy reorganizations of 30 large, public companies in the same period. We found that, controlling for the asset size of the company and its pre-sale or pre-re...
Article
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This chapter argues that existing technology is capable of rendering the court system almost completely transparent at nominal cost. "Transparent" means that the public would have online access not only to the documents in court files, but also to the answers to millions of the most important questions regarding the system's performance. The chapte...
Article
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For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy, an article published in the Stanford Law Review, that improvements in the mark...
Article
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In 1990, the United States Bankruptcy Court for the District of Delaware - then a one-judge backwater - began competing for big bankruptcy cases. In six years, that court achieved a near monopoly. In 2000, LoPucki and Kalin discovered that 42% of the companies filing in Delaware during that six year period of ascendency refiled bankruptcy within fi...
Article
In a study of the division of professional fees in 74 large, public company bankruptcy cases concluded from 1998 through 2003, we find that 79% of court-awarded fees are awarded for services rendered directly to the debtor in possession. Only 20% are awarded for services rendered to creditors committees, only one half of one percent are awarded for...
Article
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By historical accident, the bankruptcy venue statute gives large public companies their choice of bankruptcy courts. Over three decades a competition for those cases has developed among some United States Bankruptcy Courts. The most successful courts - Delaware and New York - today attract more than two thirds of the billion-dollar-and-over cases....
Article
Debtor name errors have been a substantial and persistent problem for filers and searchers in the Uniform Commercial Code Article 9 filing system. Filers make errors in spelling, punctuation, and spacing, use trade names, and include extraneous words. The law prior to 2001 excused such errors if they were minor and not seriously misleading. That pu...
Article
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Universalism is the term used to describe an international bankruptcy system in which a court of a multinational debtor's home country would apply home country law to control the company's bankruptcy worldwide. For decades, prominent bankruptcy scholars, judges, and practitioners have pressed for the adoption of treaties, conventions, and laws that...
Article
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Multinational bankruptcy cases have tremendous potential for forum shopping because changing forum country also changes the law that will determine the debtor's remedies and the creditors' priorities. That potential has been held in check by the multinational companies' need that the courts of other countries recognize the decree of the forum court...
Article
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In his 1998 article, A Contract Theory Approach to Business Bankruptcy, 107 Yale Law Journal 1807, Alan Schwartz presented a model and proof purporting to show that contractual bankruptcy was superior to the state-supplied mandatory regime. This reply shows the proof to be incorrect on its assumptions in several respects. The reply also presents em...
Article
LoPucki's provocative critique of Chapter 11 is required reading for everyone who cares about bankruptcy reform. This empirical account of large Chapter 11 cases will trigger intense debate both inside the academy and on the floor of Congress. Confronting LoPucki's controversial thesis-that competition between bankruptcy judges is corrupting them-i...
Article
This article reports on one of the most extensive studies to date of the professional fees and expenses awarded by U.S. bankruptcy courts in the reorganizations of large, public companies.
Article
This article presents the findings of an empirical study of professional fee and expense awards by United States Bankruptcy Courts in 48 large public company bankruptcy cases concluded from 1998 through the first half of 2002. Data was gathered from fee applications and orders in the courts files. Using that data together with case and company data...
Article
In economic theory, the residual owner is the perfect person to control the bankrupt firm. The residual owner risks its own money and has incentives identical to those of the firm. But in more than fifteen years of trying, scholars have not been able to specify a mechanism that would identify the residual owner of a bankrupt firm and put that resid...
Article
In an article recently published in the Stanford Law Review Professors Douglas G. Baird and Robert K. Rasmussen assert that big-case bankruptcy reorganizations have "all but disappeared" and give three theoretical explanations. This reply provides empirical evidence that the assertion is wrong; reorganizations not only survive but are booming. It t...
Article
This paper extends Professor Margaret Blair and Lynn Stout's pathbreaking Team Production Theory of Corporate Law to the bankruptcy reorganization of public companies. The paper begins by describing the prevailing contractarian theory of bankruptcy reorganization, the Creditors' Bargain theory propounded by Professor Thomas Jackson in 1982. The pap...
Article
This essay argues that the decline of public identities over the past three decades, combined with increasing secrecy in the process of identification, is the root cause of the burgeoning problem of identity theft. Identity theft is easy because impersonation increasingly takes place in private transactions that are invisible to the victim. The ess...
Article
In recent years, about 70% of the large, public firms that file for reorganization choose the bankruptcy courts of Delaware (about 55%) or New York (about 15%). In an earlier study, LoPucki and Kalin found that firms emerging from those courts refiled bankruptcy at rates four to seven times the rate for firms emerging from other U.S. bankruptcy cou...
Article
This 11-page paper argues that the problems of empirical researchers in accessing federal court data are principally political, not technological or economic. The technological advances of the past twenty years - computerization of court records and internet access through PACER - have been offset almost entirely by political restrictions on data a...
Article
No general rule of law renders trademark owners liable for products sold or business conducted under the trademark. This essay proposes the adoption of such a rule. The rationale for the change is that businesses are known by their trademarks, not their entity names, in the marketplace. The vast majority of customers - both businesses and consumers...
Article
No general rule of law renders trademark owners liable for products sold or business conducted under the trademark. This essay proposes the adoption of such a rule. The rationale for the change is that businesses are known by their trademarks, not their entity names, in the marketplace. The vast majority of customers - both businesses and consumers...
Article
This paper builds on the theory of human identification proposed by Professor Roger Clarke and uses the product as the basis for a proposed solution to the identity theft problem. The expanded theory holds that all human identification fits a single model. The identifior matches the characteristics of a person observed in a first observation with t...
Article
In the early 1990s, Delaware replaced New York as the jurisdiction of choice for the bankruptcy reorganization of large, public companies. In an empirical study of 188 companies emerging from bankruptcy reorganization from 1983 through 1996, the authors found that the refiling rates for public companies reorganized in Delaware and New York were abo...
Article
This manuscript is part of an ongoing debate over the fundamental principles that govern the bankruptcies of multinational companies. Essentially three positions have emerged. Universalists assert that the bankruptcy of a multinational company should take place in the courts of the company's "home country" and the law of the home country should gov...
Article
This article argues that substantially all judgment proofing can be described through a single model: a symbiotic relationship between two or more entities, in which one of the entities generates disproportionately high risks of liability while the other owns a disproportionately high level of assets. The two entities typically are joined by a cont...
Article
Based on systems/strategic analysis, this paper predicts the complete failure of legal liability system. Liability is the system by which injured persons recover money damages from those who injure them. The system operates through the entry and enforcement of judgments by the courts. The paper argues that the system is vulnerable to defeat by a va...
Article
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For almost two decades, an embarrassing pattern of forum shopping has been developing in the highly visible world of big-case bankruptcy reorganization. Forum shopping--defined here as the act of filing in a court that does not serve the geographical area of the debtor's corporate headquarters--now occurs in more than half of all big-case bankruptc...
Article
In an article published in 1992, Professors Twerski and Cohen suggested that basic principles of the law of informed consent require medical providers to tell their patients about competing providers could perform the same procedures better or more safely. In its 1996 decision in Johnson v. Kokemoor, the Supreme Court of Wisconsin cited Twerski and...
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This article examines the several competing systems proposed for international cooperation in the bankruptcy cases of multinational companies and concludes that a cooperative form of territoriality would work best. Universalism, the system that currently dominates the scholarship, diplomacy, and jurisprudence of international bankruptcy, holds that...
Article
This article reports on an empirical study of forum shopping in all bankruptcy reorganization of large, public companies from 1980 through 1997 (273 cases). Principal findings include: (1) forum shopping increased from about 20% to between 50% and 86% over the period studied, (2) the principal destination for shopping changed abruptly from New York...
Article
This is a rejoinder by the author of The Death of Liability, 106 Yale L.J. 1 (1996). The rejoinder is to a reply by Professor James J. White to the original article. Corporate Judgment Proofing: A Response to Lynn LoPucki's The Death of Liability, 107 Yale L.J. 1363 (1998). In response to specific points made by White, LoPucki argues that the judgm...
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Article
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The comments I present here pertain to two subjects. The first is the Warren and Westbrook attack on "arm chair theorists' and the response of the Conferees to this attack. The second is the problem of sample selection and its relationship to regularized data gathering.
Article
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The most basic purpose of the Article 9 filing system is to make a filing accessible to a searcher. Problems with the current system are discussed, and it is concluded that it will take more than computerization to fix the problems.
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Commercial Transactions: A Systems Approachexplores the nuances of transaction law from a systems' perspective, examining the infrastructure that supports commercial transactions and how the law is applied in real-world situations. Its outstanding team of co-authors uses an assignment-based structure that allows professors to adapt the text to a va...
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To reduce creditors' and shareholders' incentives to resist managers' efforts to maximize, we proposed that parties to the reorganization case who stand to benefit during the pendency of a Chapter 11 reorganization from a particular investment be required to compensate those disadvantaged by it.4 The purpose of this article is to elaborate on that...

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Project (1)
Project
The paper is a response to the ATP Tour case. It will project the outcome of charter competition from the structure of charter competition.