The last bankrupt hanged: Balancing incentives in the development of bankruptcy law

Emily Kadens*

*Corresponding author for this work

Research output: Contribution to journalArticle

13 Scopus citations

Abstract

This Article frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of a debtor in his financial dismantling. The pivotal moment in this story came in the years 1705 and 1706, when the English Parliament drafted a bill making the bankrupt's refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge would have a fruitful future. Coercing the debtor to be honest, however, proved a failure. Fraud flourished, and few perpetrators were executed, in part because creditors and jurors found putting bankrupts to death a bit excessive. And yet, despite the failure of the English experiment with harsh penalties, the desire to punish debtors has remained a part of the culture of bankruptcy to this day.

Original languageEnglish (US)
Pages (from-to)1229-1319
Number of pages91
JournalDuke Law Journal
Volume59
Issue number7
StatePublished - Apr 1 2010

ASJC Scopus subject areas

  • Law

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