Why It Pays to File for Bankruptcy: A Critical Look
at the Incentives Under U.S. Personal Bankruptcy Law and a Proposal
for Change
Michelle J. White
This Article considers why consumer bankruptcy is so com-mon in the
United States, focusing particularly on the role of property exemptions
and how strategic behavior can make filing for bankruptcy attractive
even to high-income households. To avoid such pathologies, this Article
proposes changes to the bank-ruptcy system that would appropriately
limit the attractiveness of the bankruptcy process. Part I briefly introduces
the current personal bankruptcy system. Part II examines the economic
justi-fication for having a personal bankruptcy procedure at all and
argues that having such a system improves economic efficiency. However,
the costs of the procedure rise more quickly than the benefits as the
amount of assets exempt from the bankruptcy process increases. Thus,
while exemptions from bankruptcy may sometimes be appropriate, the level
should not be set too high. Part III then explores various strategies
that households can use to increase their financial benefit from bankruptcy.
This Part cal-culates the proportion of households that have a financial
incen-tive to file for bankruptcy when they use these strategies. These
calculations show that current U.S. bankruptcy laws are manipu-lated
so easily that a majority of households can benefit finan-cially from
bankruptcy if they plan in advance. Subject to occa-sional judicial
limitations, many bankruptcy exemptions are in effect unlimited, which
gives too many households an incentive to file for bankruptcy rather
than to take responsibility for repaying their debts. Part III also
analyzes the effect of adopting the ex-emption proposals of the National
Bankruptcy Review Commis-sion and shows that they would greatly exacerbate
current prob-lems. Finally, Part IV proposes a reform of the personal
bank-ruptcy system under which debtors in bankruptcy would be re-quired
to use both their current wealth and their future earnings to repay
debt, with appropriate exemptions for both. The pro-posed reform would
end the anomaly under the current system whereby some debtors obtain
discharge of their debts in bank-ruptcy even though they have high incomes
and, often, high wealth. Under the proposed reform, fewer households
would have an incentive to file for bankruptcy, and debtors with a high
abil-ity to repay their debts would be deterred from filing. Households
that have low wealth and low income, however, would still benefit from
the discharge of debt in bankruptcy and receive a "fresh start."
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