Generally, Chapter 7 bankruptcy is available to only the most desperate individual debtors who do not have the means to pay their creditors back over time. Before 2005, the Bankruptcy Code gave judges discretion to decide which debtors were eligible for Chapter 7. The Bankruptcy Abuse Prevention Act, however, curtails this discretion, mandating that judges use a rigid means test to determine when a debtor is allowed to file. This Note argues that it was a poor decision to foreclose judicial discretion with the means test. It then proposes a compromise between the means test approach and the old standard.
Lauren E. Tribble,
Judicial Discretion and the Bankruptcy Abuse Prevention Act,
57 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol57/iss3/6