William C. Whitford

90 Texas L. Rev. See Also 9

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Professor William Whitford responds to Professor Porter’s article by concurring with Porter’s conclusion that the current consumer bankruptcy system should be converted into a single-chapter system in order to eliminate the complexity and choice that currently prevents filers from reaching discharge. Concerned, however, that legislative roadblocks might substantially delay the wholesale reform of the bankruptcy system, and conscious of the importance of making bankruptcy discharge more readily available, Whitford proposes a “small ball” solution that can begin mitigating Chapter 13’s potential for harm without the need to wait for an act of Congress. Citing evidence of geographic trends in Chapter 13 filing practices, in terms of both the percentage of consumer bankruptcy cases that are Chapter 13 cases as well as the nature of the Chapter 13 plans that are confirmed, Whitford argues that debtors’ bankruptcy decisions are largely influenced by the legal culture that exists in the judicial district in which they file their cases. Because the incentives created by this legal culture cause attorneys, judges, and bankruptcy trustees to steer debtors into certain bankruptcy plans regardless of needs and preferences of individual debtors, Whitford asserts that local legal culture is a contributing cause of many debtors’ inability to navigate the bankruptcy system to discharge. He concludes by outlining how local legal influences can be identified and eliminated, thereby ensuring that debtors will be steered to Chapter 13 and into certain payout plans only under appropriate circumstances—where the chosen path is that most likely to enable the debtor to obtain discharge.