Archive for July, 2014
I just read this article – Supercharging Lawyer Development Through Feedback, authored by Prof. Bill Henderson, which I picked up on the TaxProfBlog. Music to my ears. The problem is how to institutionalize “legal education as professional development” – and, in particular, how to go about implementing a pedagogy which prides itself on “quality and speed of feedback, as well as on sufficient opportunity to practice” (to quote Daniel Kahneman to whom Prof. Henderson cites). The closest approximation we currently have is Legal Writing. But there’s no doubt we should make it happen as, I for one, do not find Prof. Henderson’s predictions either “fanciful or utopian”. It’s a design problem that law schools can and should try to solve.
My bankruptcy law students are aware that, as a general rule, federal bankruptcy law treats ipso facto clauses in contracts and leases with considerable disfavour. Ipso facto clauses are clauses that provide for a contract or lease to terminate in the event that a party files for bankruptcy. The Latin phrase means “by the fact itself” or “by that very fact” and its usage reflects the notion that a contract or lease including such a clause is designed to terminate “by the very fact” that one of the parties files for bankruptcy. Bankruptcy law doesn’t like ipso facto clauses because they deprive the bankruptcy estate of valuable assets that could otherwise be monetized for the benefit of creditors.
As my bankruptcy law students also know, there are exceptional circumstances in which these clauses do hold up. Ken Adams, Bob Eisenbach, and I just had an article published in the ABA’s Business Law Today that discusses these clauses and proposes model language that practitioners can use when drafting them. We also suggest – well it was Ken’s idea really – that we should cut out the Latin and start referring to ipso facto clauses in plain old English as “termination-on-bankruptcy” provisions. I welcome any thoughts and comments on the article.