The Expressive Power of Bankruptcy
Pamela Foohey*
ABSTRACT
Every year, millions of people file for bankruptcy, making the bankruptcy
system the most common part of the federal court system with which people come
into contact. On a financial basis, every year millions more people could benefit
from filing for bankruptcy, and yet do not file. Research suggests that people wait
months, often years to file, and that creditors’ actions and the costs of filing cannot
fully explain why people turn to bankruptcy when they do. Something else must be
driving the timing of people’s filings. Thus to understand how a key part of the legal
system functions, it is vital to know why people decide they are going to file for
bankruptcy at a particular time during their struggles with overindebtedness.
This Article investigates the question of what prompts people to use the
bankruptcy system from the previously unexplored perspective of the social and
emotional meanings of filing for bankruptcy. Drawing from studies of what people
gain from involvement in the criminal and civil justice systems, I theorize that
people derive an “expressive power” from bankruptcy. The bankruptcy process
serves as a public referendum that allows them to assess and affirm their standing
within society’s social classes, a standing marred by their overindebtedness, and,
relatedly, to cope with the negative emotions arising from their financial situations.
This Article’s theory unites several strands of research regarding consumer
bankruptcy and posits new answers to key questions about this integral part of the
legal system. Thus, though the theory primarily is descriptive, as are many theories
of the expressive value of law and the legal system, it has normative implications for
the structure of consumer bankruptcy, as explored in the Article.
Associate Professor, Indiana University Maurer School of Law. Chelsea Brune (Maurer
’16), Paul Newendyke (Maurer ’18), and Joseph Pellegrino (Maurer ’17) provided excellent
research assistance.
*
ii
I.
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
II. THE CONSUMER BANKRUPTCY SYSTEM.............................................................. 6
A. Policies Behind Bankruptcy’s Discharge ...............................................................6
B. Effectuating the Policies Behind Bankruptcy’s Discharge ..................................9
C. Who Files for Bankruptcy? .....................................................................................12
III. EXPRESSION, EMOTIONS, SOCIAL STANDING, AND THE LEGAL SYSTEM ........ 13
A. Expressive Function of Law and the Legal System ............................................14
B. Value of Legal Procedures......................................................................................18
C. Emotions and the Legal System .............................................................................20
1.
Dealing with Anger Through Retributive and Restorative Justice .............. 21
3.
Purging Disgust ........................................................................................... 25
2.
Contending with Guilt and Shame............................................................... 23
IV. THE EXPRESSIVE POWER OF BANKRUPTCY ...................................................... 26
A. Theory .......................................................................................................................26
1.
2.
The Road to Bankruptcy .............................................................................. 28
Bankruptcy as a Statement of Social Worth ................................................ 32
B. Implications ..............................................................................................................35
V. WHAT WE KNOW ABOUT THE EXPRESSIVE POWER OF BANKRUPTCY............ 40
VI. CONCLUSION: TESTING THE EXPRESSIVE POWER OF BANKRUPTCY ............... 46
1
I.
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
INTRODUCTION
Why do some people bring their legal problems to the legal system, while
many others do not? Of all the legal problems people encounter in their lives, people
seek legal help for very few of them, and even fewer of their problems result in
litigation.1 Determining what motivates people to bring lawsuits, and, similarly, to
participate in the criminal justice system is critical to understanding how the
American legal system functions to order society and the economy, regulate citizens’
behavior, and uphold the rule of law.
The bankruptcy system is an integral component of the American legal system.
Every year, individuals and families—known in bankruptcy terms as “consumers”—
file hundreds of thousands, often millions of bankruptcy petitions. 2 These petitions
seek to discharge hundreds of millions of dollars of debts, money that banks and
other creditors never will collect. Based on numbers of petitions filed per year, the
bankruptcy system is by far the most common part of the federal court system with
which people come into contact. 3 To put the consumer bankruptcy system’s usage in
context, over the past decade, on average, more individuals and households filed for
bankruptcy than couples filed for divorce in a given year. 4
As such, it is impossible to understand how the legal system and credit
economy function overall without understanding how the consumer bankruptcy
system functions. A fundamental threshold question regarding how the consumer
bankruptcy system works is how people decide to use the system. That is, why do
people decide that they are going file for bankruptcy at the particular time that they
decide that they are going to file?5
See Rebecca L. Sandefur, Access to Civil Justice and Race, Class, and Gender
Inequality, 34 ANN. REV. SOC. 339, 342 (2008) (“Relatively few grievances are taken to lawyers,
courts, or officials, and most never make it to trial.”); William L.F. Felstiner et al., The
Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . ., 15 LAW & SOC’Y
REV. 631, 649 (1980–81) (noting the same).
2
For instance, in 2015, approximately 820,000 non-business bankruptcy petitions were
filed, down significantly from the approximately 1.5 million non-business bankruptcy petitions
filed in 2010. Bankruptcy Filings, UNITED STATES COURTS, http://www.uscourts.gov/reportname/bankruptcy-filings (last visited May 14, 2016).
3
See Caseload Statistics Data Tables, UNITED STATES COURTS, http://www.uscourts.gov/
statistics-reports/caseload-statistics-data-tables (last visited May 14, 2016).
4
The divorce rate generally is 3.6 per 1,000 persons. See Marriage and Divorce, CENTERS
FOR DISEASE CONTROL AND PREVENTION, http://www.cdc.gov/nchs/fastats/marriagedivorce.htm (last visited May 14, 2016). In 2015, the bankruptcy petition rate was 2.6 per 1,000
persons, the lowest since 1989. See Robert Lawless, Bankruptcy Filings Drop 10% in 2015,
CREDIT SLIPS (Jan. 7, 2016), http://www.creditslips.org/creditslips/2016/01/bankruptcy-filingsdrop-10-in-2015.html. In comparison, in 2013, the bankruptcy petition rate was 3.8 per 1,000
persons, and in 2010, it was 5.0 per 1,000 persons. See Robert Lawless, Bankruptcy Filings Fall
13% in 2013, CREDIT SLIPS (Jan. 3, 2014),
http://www.creditslips.org/creditslips/2014/01/bankruptcy-filings-fall-13-in-2013.html.
5
The question is one step of naming, blaming, claiming: once people have realized their
1
2
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
This Article investigates that question from the previously unexplored
perspective of the social meaning of filing for bankruptcy. Rather than focus on the
financial underpinnings of people’s filing decisions, as prior work has emphasized,
this Article draws from studies of what people gain from involvement in criminal
justice actions and why people use the civil justice system to theorize that the timing
of people’s bankruptcy filing decisions is motivated in part by a desire to publicly
assert their value as members of society. Our understanding of the civil and criminal
justice systems is shaped significantly by theories and studies investigating how
people view their participation in the legal system as an expressive act that helps
them construct where they fit within society—their social worth and standing. 6 But
no literature has linked social standing with consumer bankruptcy filings, even
though people experience overindebtedness as a distinct and inferior social class. 7
Part of the reason for the lack of scholarly attention to the social meaning of
filing for bankruptcy almost certainly is that bankruptcy is considered to be
stigmatizing and shameful,8 even though filing also is a financial business decision.
Research shows that people file for bankruptcy to put a stop to creditors’ incessant
calls, to rid themselves of debts that they never will be able to pay back despite their
best efforts, to save their homes from foreclosure, and to recover from the failure of
their small businesses.9 But research also shows that people wait months, even years,
financial problems are legal problems, why do they decide to use a proceeding they already know
about? See William L.F. Felstiner, et al., supra note 1, at 631 (articulating the steps that bring
people to the legal system); Pamela Foohey, When Faith Falls Short: Bankruptcy Decisions of
Churches, 76 OHIO STATE L.J. 1319, 1324-26 (2005) (discussing naming, blaming, claiming in
the context of financial problems).
6
See infra Part III for a discussion of the expressive function of the legal system.
7
See Stephen E. G. Lea, et al., The Psychology of Debt in Poor Households in Britain, in
A DEBTOR WORLD: INTERDISCIPLINARY PERSPECTIVES ON DEBT 151, 152 (Ralph Brubaker et al.,
eds., 2012) (“Some data suggest that being a debtor is a distinct social identity.”); infra Part IV.
For the purposes of this Article, overindebtedness means “to repay all debts in full in the near
future.” A. Mechele Dickerson, Over-Indebtedness, the Subprime Mortgage Crisis, and the
Effect on U.S. Cities, 36 FORDHAM URB. L.J. 395, 396 n.1 (2009) (defining overindebtedness).
8
Studies of consumer debtors suggest that people view filing for bankruptcy as shameful
and stigmatizing. See, e.g., Michael D. Sousa, Bankruptcy Stigma: A Socio-Legal Study, 87 AM.
BANKR. L.J. 435, 461-63 (2013) (interviewing 58 people in Colorado about their decisions to file
under chapter 7); Teresa A. Sullivan et al., Less Stigma or More Financial Distress: An
Empirical Analysis of the Extraordinary Increase in Bankruptcy Filings, 59 STAN. L. REV. 213,
218 (2006) (testing whether filings have increased over time because bankruptcy’s stigma has
declined); Deborah Thorne & Leon Anderson, Managing the Stigma of Personal Bankruptcy, 39
SOC. FOCUS 77, 77 (2006) (interviewing 37 families about their decisions to file).
9
See, e.g., Ronald J. Mann & Katherine Porter, Saving Up for Bankruptcy, 98
GEORGETOWN L. J. 289, 306-07 (2010) (discussing creditors’ collection activities); John Eggum
et al., Saving Homes in Bankruptcy: Housing Affordability and Loan Modification, 2008 UTAH L.
REV. 1123, 1126-31 (2008) (describing bankruptcy as a device to save homes); Robert M.
Lawless & Elizabeth Warren, The Myth of the Disappearing Business Bankruptcy, 93 CAL. L.
REV. 743, 747 (2005) (finding that as many as 17% of bankruptcy filings are of entrepreneurs,
self-employed individuals, and independent contractors with failed businesses).
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
3
to file for bankruptcy, long after their efforts to pay back their creditors have proved
futile, and long after filing made economic sense. 10 Bankruptcy’s stigma and wanting
to be good citizens who pay back as much of their debts as possible plays a part in
many people’s postponement of filing.11
Given this push and pull between living up to their promises and simply being
unable to pay, might there be another aspect to people’s decisions to use the
bankruptcy system besides accessing its financial benefits? In addition to seeking to
free themselves from crushing debts, do people view the act of filing for bankruptcy
as making a public statement about their value as members of society—a value that
they feel has been inappropriately lowered because of their overindebtedness?
People naturally view themselves as occupying a distinct position within
society’s social groups.12 Social identity affords a sense of belonging, and can be a
source of pride and self-esteem.13 As such, people will defend and reassert their
perceived correct social standing when confronted by others who they view as
questioning and devaluing their place within society. 14
Participating in the legal system is one way that people defend and reassert
their social status. Law and the legal system allow people to engage in “deliberative
interaction” with those whom they view as harming their social standing—to “voice
to vent their feelings, present their side of the story, and ideally come to an
agreement about the hurt the offense has caused, the offender’s responsibility, and
what can be done to restore a sense of justice.” 15 For example, punishment of a
criminal signals to the victim that society believes her wrongdoer treated her as
See, e.g., Robert M. Lawless et al., Did Bankruptcy Reform Fail? An Empirical Study of
Consumer Debtors, 82 AM. BANKR. L.J. 349, 381 (2008) (reporting that more than 40% of
surveyed consumers who filed for bankruptcy in 2007 struggled with debts for more than two
years before filing); Michelle J. White, Why Don’t More Households File for Bankruptcy, 14 J.
L. ECON. & ORG. 205, 206 (1998) (calculating that 15% of households in the United States would
benefit financially from filing for bankruptcy).
11
People’s lack of money to pay attorney’s and filing fees also factors into when they file
for bankruptcy. See Mann & Porter, supra note 9, at 319-24. Importantly, lack of funds enters
into the timing of people’s filings after they have decided to file for bankruptcy. This Article
seeks to understand why people decide they will file for bankruptcy in the first instance.
12
See Henri Tajfel & John C. Turner, The Social Identity Theory of Intergroup Behavior,
in PSYCHOLOGY OF INTERGROUP RELATIONS 6, 15-16 (Stephen Worchel & William G. Austin
eds., 1986) (discussing social categorization and how it “provides a system of orientation for selfreference”); Henri Tajfel, Social Identity and Intergroup Behavior, 13 SOC. SCI. INFO. 65, 69
(1974) (discussing social identity and social categorization); infra Part III.A.
13
See Kenworthey Bilz, The Puzzle of Delegated Revenge, 87 BOSTON UNIV. L. REV.
1059, 1086 (2007) (noting that people need to affiliate with others); Tom Tyler et al.,
Understanding Why the Justice of Group Procedures Matters: A Test of the Psychological
Dynamics of the Group-Value Model, 70 J. PERSONALITY & SOC. PSYCHOL. 913, 913 (1996)
(noting that people seek to be well-regarded members of their groups).
14
See Bilz, supra note 13, at 1086-87 (discussing how people assess their status).
15
Michael Wenzel, et al., Retributive and Restorative Justice, 32 L. HUM. BEHAV. 375,
376 (2008).
10
4
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
“lower” than she deserved, thereby allowing her to reestablish her social standing
vis-à-vis social group hierarchies.16 The process of justice may be even more
important to the victim than the ultimate punishment of the wrongdoer because it
undoes the moral-symbolic meaning of the perceived offense. 17
This Article extends these theories to the context of consumer bankruptcy to
argue that people derive an “expressive power” from bankruptcy. Separate from the
financial benefits that may accrue, people may view the bankruptcy process as a
public referendum on their social identity. Debtors’ need to publicly reaffirm their
social worth and standing may stem from (perceived) lender misbehavior, the
accumulation of debt through no true fault of their own, such as because of medical
emergencies, or the simple inability to repay their debts because of life
circumstances. The ensuing overindebtedness brings with it membership in a group
lower in the social hierarchy than the group to which most consumer debtors
previously belonged.18 Actively placing themselves in the legal proceeding that is the
consumer bankruptcy process allows people to objectively and publicly assess and
demonstrate their social status and restore a “positive social identity.” 19
As with most expressive accounts of law, the theory of the expressive power of
bankruptcy advanced in this Article is both descriptive and normative. 20 It links
several strands of research regarding consumer bankruptcy, and posits new answers
to key questions about this part of the American legal system that should affect
substantive bankruptcy laws going forward. First, if people’s bankruptcy filings
typically are not strategically timed, but rather come long after they began struggling
with hopelessly burdensome debts, something besides mere inability to pay must
impact their decisions to file at a particular time. Deciding to file and filing is active.
People decide to file once they overcome feelings of defeat, and resolve to assert
themselves against creditors and within the legal system.
Second, though debtors may feel taken advantage of by creditors for a variety
of reasons, they also feel guilt, shame, and disgust for themselves because of their
inability to pay back their debts, feelings that are enhanced by the stigma of
overindebtedness and bankruptcy. In short, they feel that they have lost some of their
humanity. Filing for bankruptcy not only grants them a discharge of most of their
debts or allows them to repay their creditors via a plan, but also allows them to
See generally Jean Hampton, An Expressive Theory of Retribution, in RETRIBUTIVISM
1 (1992).
17
See generally Edgar Allan Lind, Procedural Justice, Disputing, and Reactions to Legal
Authorities, in EVERYDAY PRACTICES AND TROUBLE CASES 177 (Austin Sarat, et al., eds. 1998).
18
Most consumer debtors were members of the middle class prior to experiencing
financial problems. See infra note 68.
19
Bilz, supra note 12, at 1086.
20
See Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General
Restatement, 148 U. PENN. L. REV. 1503, 1504 (2000) (“Expressivism is thus an internal account
of existing normative practices, but one with sufficient critical capacity to exert leverage over
those practices and indicate where they ought to be reformed.”).
16
AND ITS CRITICS
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
5
convey publicly that they are worthy of the “fresh start” that is fundamental to
consumer bankruptcy.21 An understanding of the emotional underpinnings of the
theory of the expressive power of bankruptcy adds a new dimension to consider
when assessing claims about bankruptcy’s stigma and shame.
Finally, this theory explains, in part, why consumer bankruptcy filings largely
are a middle class phenomenon, even when it makes little economic sense for many
people to file because they own so little that their creditors could not collect unpaid
debts from them under state law.22 Complementarily, putting aside the expense of
filing, it explains why individuals from lower socio-economic classes mostly do not
file for bankruptcy despite being in similar financial circumstances and potentially
reaping benefits from a court order stopping creditors’ calls and discharging debts.
Taken as a whole, the theory of the expressive power of bankruptcy describes
people’s use of the bankruptcy system that is not reflected by our present laws or by
popular narratives about who files for bankruptcy. This account of how people
approach filing for bankruptcy offers a new opportunity to assess the viability and
usefulness of the consumer bankruptcy system as it is presently constituted. It further
speaks to how overindebted individuals reenter the credit economy, which is critical
to the productive functioning of banks and other financial institutions.
To situate this Article’s theory, Part II describes the consumer bankruptcy
system in terms of current theories of why law affords people a discharge of their
debts, and which consumers, in reality, use the system. Next, to establish a
theoretical structure, Part III discusses theories of the expressive function of law and
the legal system, the empirical literature that supports those theories, and the
emotions most often involved in people’s use of the legal system. Part IV extends
this function and these emotions to the context of consumer bankruptcy to craft the
theory of the expressive power of bankruptcy. This part also considers how that
theory should inform consumer bankruptcy laws.
Part V transitions from theoretical to empirical. As an initial examination of the
validity of the theory, Part V highlights key results from prior empirical studies to
survey what is known about people’s experiences with overindebtedness and filing
for bankruptcy. Part V also draws on my original interviews with leaders of religious
organizations who placed their churches, temples, and religious schools into
bankruptcy.23 The Article concludes by setting forth an empirical framework to more
fully test the expressive power of bankruptcy.
See infra Part II for details about the consumer bankruptcy system.
See infra Part II.C for a discussion of which consumers file for bankruptcy.
23
These interviews are part of my empirical project investigating the chapter 11 cases filed
by religious organizations, which I define as any organization whose operations are motivated in
a meaningful way by faith-based beliefs and principles. See generally Foohey, When Faith Falls
Short, supra note 5; Pamela Foohey, Bankrupting the Faith, 78 MO. L. REV. 719 (2013). See
infra notes 280-282 for a discussion of why these interviews are relevant to assessing the validity
of the theory proposed in this Article.
21
22
6
II.
THE EXPRESSIVE POWER OF BANKRUPTCY
THE CONSUMER BANKRUPTCY SYSTEM
[29-May-16
A. Policies Behind Bankruptcy’s Discharge
The history of allowing people to discharge their debts begins more
dramatically than one might expect—with criminal prosecutions, prisons, and
hangings.24 There effectively always has been credit, and, necessarily, delinquent
debtors and creditors bent on compelling payment. 25 The question is, how and to
what extent does the legal system encourage debtors to pay back their debts?
A legal system’s answer to this question is unexpectedly consequential. Credit
economies rely on debtors’ promises that they will pay back funds extended, and the
law thus must incentivize repayment or the economy will collapse. 26 But forcing all
debtors to pay back all debts is untenable. At some point people will stop
contributing to society if all they foresee that all of their future earnings will go to
paying off their debts. Again the economy comes to a grinding halt. 27
This need to balance the interests of creditors and debtors shaped the modern
bankruptcy system. Though creditors and society still may abhor “bankrupts,” 28
dealing with overindebted debtors has transitioned from imprisonment and hanging
to voluntary bankruptcy, far-reaching relief from debts (the discharge), and very
limited use of criminal sanctions to punish bankruptcy fraud. 29 In the context of
consumer bankruptcy today, that balance is articulated as giving the “honest but
unfortunate debtor” a “fresh start.” 30 But the mere phrase “fresh start” tells little of
the articulated policies behind the consumer bankruptcy system.
See Emily Kadens, The Last Bankrupt Hanged: Balancing Incentives in the
Development of Bankruptcy Law, 59 DUKE L.J. 1229, 1231 (2010) (detailing the history of
England’s solutions to the problem of debtor’s unwillingness or inability to pay debts); B RUCE H.
MANN, REPUBLIC OF DEBTORS: BANKRUPTCY IN THE AGE OF AMERICAN INDEPENDENCE (2002)
(detailing how, in part, the American legal system adapted English bankruptcy laws).
25
See generally DAVID GRABER, DEBT: THE FIRST 5,000 YEARS (2011).
26
See Mann & Porter, supra note 9, at 293 (discussing debt’s “moral hazard” problem).
27
See Kadens, supra note 24, at 1233 (describing this balance).
28
Id. at 1304 (“Vengeance and retribution . . . have contributed to the manner in which
creditors and society at large view bankrupts.”).
29
See id. at 1308 (discussing the state of modern bankruptcy law); Charles Jordan Tabb,
The Scope of the Fresh Start in Bankruptcy: Collateral Conversions and the Dischargeability
Debate, 59 GEO. WASH. L. REV. 56, 90-91 (1990) (describing the discharge as “a carrot dangled
in front of debtors to induce them to cooperate . . .”); Charles G. Hallinan, The “Fresh Start”
Policy in Consumer Bankruptcy: A Historical Inventory and an Interpretative Theory, 21 U.
RICH. L. REV. 49, 53-71 (1986) (detailing the evolution of bankruptcy law).
30
The phrase “fresh start” comes from Local Loan Co. v. Hunt, 292 U.S. 234 (1934), in
which the Supreme Court stated that bankruptcy gives “the honest but unfortunate debtor who
surrenders for distribution the property which he owns at the time of bankruptcy, a new
opportunity in life and a clear field for future effort, unhampered by the pressure and
discouragement of preexisting debts.” Id. at 244.
24
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
7
The most pervasive justifications for affording debtors a “fresh start”
articulates the balance that informed the evolution of bankruptcy laws: 31 Relieving
people from crushing debt allows them to remain useful members of society,
ensuring that they do not stop working, 32 and also that they continue to spend and
borrow, thereby promoting the credit economy.33 Relatedly, the bankruptcy process
is viewed as an educational experience. Debtors are presumed to acquire debt
management knowledge that will assist them in reintegrating into the economy. 34
The discharge also is seen as a form of social insurance. The bankruptcy
system catches individuals who have taken on debt to pay necessary expenses, such
as healthcare, because of an incomplete social safety net. 35 Relatedly, shifting the
risk of default to creditors should incentivize creditors to lend with more discretion,
which will decrease the risk of default and, with it, consumers’ use of bankruptcy. 36
Richard M. Hynes, Why (Consumer) Bankruptcy?, 56 ALA. L. REV. 121, 148-53 (2004),
succinctly overviews the competing justifications put forth for the consumer bankruptcy system.
32
See, e.g., Nicholas L. Georgakopoulus, Bankruptcy Law for Productivity, 37 WAKE
FOREST L. REV. 51, 53 (2002) (“The fresh start policy prevents pauperism and idleness.”);
Elizabeth Warren, A Principled Approach to Consumer Bankruptcy, AM. BANKR. L.J. 483, 492
(1997) (“[Americans] need the chance to remain productive members of society, not driven
underground or into joblessness by unpayable debts.”); Margaret Howard, A Theory of Discharge
in Consumer Bankruptcy, 48 OHIO ST. L.J. 1047, 1085 (1987) (“Mandating [conditional debt
relief] comes down to a diminution of the goal of economic productivity.”); Thomas H. Jackson,
The Fresh-Start Policy in Bankruptcy Law, 98 HARV. L. REV. 1393, 1433 (1985) (describing the
economics benefits of allowing people to discharge their debts in terms of human capital).
33
See, e.g., Katherine Porter & Deborah Thorne, The Failure of Bankruptcy’s Fresh Start,
92 CORNELL L. REV. 67, 68 (2006) (discussing the “new opportunity in life” that supposedly
accompanies the fresh start); KAREN GROSS, FAILURE AND FORGIVENESS: REBALANCING THE
BANKRUPTCY SYSTEM 99 (1997) (“[W]e want debtors to be able to continue borrowing if they
put themselves in the position to be able to repay what they owe their creditors.”).
34
See Howard, supra note 33, at 1060 (discussing bankruptcy as educational experience).
35
See, e.g., Lois R. Lupica, The Consumer Debt Crisis and the Reinforcement of Class
Position, 40 LOYOLA U. CHI. L.J. 557, 591 (2009) (“In the absence of savings, a living wage or
public assistance, credit becomes what enables many families to survive.”); Adam Feibelman,
Defining the Social Insurance Function of Consumer Bankruptcy, 13 AM. BANKR. INST. L. REV.
129, 129-31 (2005) (overviewing how bankruptcy is an “insurer of last resort”); Jean Braucher,
Consumer Bankruptcy As Part of the Social Safety Net: Fresh Start or Treadmill?, 44 SANTA
CLARA L. REV. 1065, 1072-73 (2004) (linking social programs and the typical consumer debtor
who files for bankruptcy to suggest that these people initially self-finance their safety nets with
credit cards); Melissa B. Jacoby, Collecting Debts from the Ill and the Injured: The Rhetorical
Significance, but Practical Irrelevance, of Culpability and Ability to Pay, 51 AM. U. L. REV. 229,
233-35 (2001) (describing bankruptcy as an important part of the health care finance system).
36
See John A.E. Pottow, Private Liability for Reckless Consumer Lending, 2007 U. ILL. L.
REV. 405, 431-34 (2007) (discussing why it is more efficient to shift risk of default to creditors);
Jackson, supra note 33, at 1426 (noting that discharge “leaves the determination of whether to
extend credit to creditors, . . . who are better able, by observing individual debtors or by
employing specific contractual covenants, to monitor individuals’ consumption of credit”);
Theodore Eisenberg, Bankruptcy Law in Perspective, 28 UCLA L. REV. 953, 981-83 (1981)
(discussing discharge as allocating risk of loss between debtor and creditor).
31
8
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
Finally, some scholars have justified the “fresh start” on a humanitarian basis.
Society’s sanctioning of a law which relieves debtors of burdensome debts evidences
both creditors’ and society’s compassion and virtue.37 As articulated by Karen Gross,
forgiving debtors may have “restorative” benefits for creditors, debtors, and society
broadly.38 Creditors who think that their debtors wronged them may feel vindicated
when debtors effectively must admit failure through the bankruptcy process. 39 For
debtors, bankruptcy may allow them to “regain self-esteem,” which Gross links to
“wrongdoer” debtors once again becoming productive members of society,
harkening back to the more economic theory of the bankruptcy discharge, 40
including learning from failure.41 For society, there may exist a moral imperative to
help debtors that is part of a larger “responsibility to treat members of society
humanely,” thereby fostering “human dignity and self-respect.” 42 Though
recognizing that “values of self-worth and reintegration into society,” Gross again
links this imperative to advancing the credit economy and other economic benefits. 43
The humanitarian theory of the discharge offers insights into the role of
forgiveness in society that this Article will consider in connection with the theory of
See, e.g., GROSS, supra note 33, at 93-94(1997) (articulating the discharge as
“forgiveness”); Jacoby, supra note 35 at 239 (noting the altruistic basis of the discharge);
Richard E. Flint, Bankruptcy Policy: Toward a Moral Justification for the Financial
Rehabilitation of the Consumer Debtor, 48 WASH. & LEE L. REV. 515, 519-21 (1991) (positing
that consumer bankruptcy law is grounded in a “natural law theory of morality” that combines
“attributes of social, distributive, and commutative justice, existing in harmony as a humanitarian
response to the financially downtrodden”); Heidi M. Hurd, The Virtue of Consumer Bankruptcy,
in A DEBTOR WORLD: INTERDISCIPLINARY PERSPECTIVES ON DEBT 217, 217 (Ralph Brubaker et
al., eds., 2012) (articulating “a new positive theory of the consumer bankruptcy discharge” that
posits that debt forgiveness is “about achieving and expressing personal virtue—not that of
creditors or of debtors but of ordinary people, as citizens of a just and wealthy society”).
Thomas Jackson’s theories for allowing consumers to discharge their debts, premised on
“volitional and cognitive justifications,” can be viewed in a humanitarian light: they are premised
on the idea that debtors collectively would want society to allow them to be relieved from debts
they incurred without fully thinking the deals through because of “impulse control” issues and
cognitive defects. See generally Jackson, supra note 33. Finally, Michael Sousa, The Principal of
Consumer Utility: A Contemporary Theory of the Bankruptcy Discharge, 58 KAN. L. REV. 553
(2010), offers a metatheory of consumer bankruptcy premised on utilitarianism.
38
GROSS, supra note 33, at 94 (linking forgiveness and restoration and rehabilitation).
39
Id. (noting also that creditors will receive some payment and the assurance that debtors
will be unable to file for bankruptcy again for a certain time period).
40
Id. (“Forgiveness also gives the wrongdoer (the debtor) the opportunity to regain selfesteem and become once again a productive member of society.”); see also supra note 33 and
accompanying text.
41
See supra note 34 and accompanying text.
42
GROSS, supra note 33, at 102.
43
Id.; see also Hurd, supra note 37, at 218 (“When debtors are rightly forgiven, it is under
circumstances in which all those to whom their debts are owed ought to forgive their debts, and
all those to whom the costs of their default are passed ought to be willing to shoulder those
losses” (emphasis in original)).
37
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
9
the expressive power of bankruptcy, particularly the humanitarian theory’s
foundation in the restorative justice and dignity rationales underlying criminal law. 44
Nonetheless, as detailed in Part IV, the theory advanced in this Article is distinct. It
focuses on what debtors, not creditors or broader society derive from filing. It does
not assume that debtors are “wrongdoers” that need the discharge’s forgiveness to
“regain self-esteem.”45 On the contrary, it suggests that some debtors assert their
already regained (or never lost) self-esteem through the act of filing. And, perhaps
most fundamentally, it does not purport to explain why our legal system provides for
a discharge of debts. Rather, it explains why certain people decide to use the system
in the first instance, and why these people use the system at the time that they do. 46
Understanding why people turn to bankruptcy at the particular time that they do
is fundamental to knowing if the discharge actually is being used to produce its
theorized benefits, or whether the laws that purport to allow for these benefits should
be reconsidered. As such, the next subpart reviews how our bankruptcy laws,
substantively and procedurally, currently grant debtors a “fresh start.” Because
people file for bankruptcy based on what the system provides them, this description
also is key to understanding what people who file for bankruptcy view themselves as
accomplishing through filing.
B. Effectuating the Policies Behind Bankruptcy’s Discharge
All of the policies underlying the bankruptcy discharge convey a related goal
of law’s response to the “moral hazard” problem that accompanies lending: to
reward only the honest but unfortunate debtor with a fresh start. 47 Consumers
predominantly file under two “chapters” of the Bankruptcy Code: chapter 7 and
chapter 13.48 Each of these chapters can be thought of as providing for a particular
deal between the debtor and creditors.
See GROSS, supra note 33, at 98-100 (linking discharge and theories of criminal law).
See supra note 40 and accompanying text.
46
The theory developed in this Article also is distinct from Donald Korobkin’s theory
about how bankruptcy is performative, as put forth in Bankruptcy Law, Ritual, and Performance,
103 COLUM. L. REV. 2124 (2003). Korobkin offers a theoretical account of bankruptcy law as
ensuring that debtors “display appropriate regard for the norms” of living up to contractual
commitments via ritual. Id. at 2130-31. To the extent that this Article’s theory draws on the
performance inherent in legal proceedings, it does so in connection with the social and emotional
benefits that debtors believe they will receive from the bankruptcy process, not what society
requires of debtors. See id. at 2127-28 (discussing legal scholars’ exploration of performativity).
47
See supra notes 26 and 30 and accompanying text.
48
Consumer also may file under chapter 11, which provides for reorganization of debts.
However, the vast majority of consumers file under chapters 7 and 13. For example, in 2015,
819,760 nonbusiness bankruptcy petitions were filed, 1,111 of which were chapter 11 petitions.
Bankruptcy Filings, UNITED STATES COURTS, http://www.uscourts.gov/report-name/bankruptcyfilings (last visited May 14, 2016). The discussion thus focuses on chapters 7 and 13.
44
45
10
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
People who file under chapter 7 receive a relatively speedy discharge of most
of their debts in exchange for surrendering their assets to a “bankruptcy trustee” who
sells those assets and distributes the proceeds to the debtor’s creditors. 49 In reality,
more than ninety percent of consumers’ chapter 7 cases are “no asset” cases,
meaning that there are no assets for the trustee to liquidate.50 The reason is two-fold.
First, because state law and the Code protect (“exempt”) certain of a person’s assets
from liquidation, such as some clothing and household items, many debtors are
allowed to retain all of their assets to effectuate their “fresh start.” 51 Second, many
people have pledged most of their assets as collateral to their creditors; pledged
(“secured”) assets are not available for liquidation by the bankruptcy trustee. 52
Most debtors who file under chapter 7 are granted a discharge within six
months of filing and are unlikely to go to court or meet the bankruptcy judge. 53
However, all debtors are required to sit for a hearing conducted by the bankruptcy
trustee, during which the trustee questions them about finances, and during which
creditors also may question them.54 These hearings, called “341 hearings” after the
controlling Code section,55 are recorded by the trustee, may be remembered by
people “as one of the most painful moments of their lives,” 56 and are the foremost
means by which debtors tell the story of how they ended up in bankruptcy. These
hearings effectively are their day in court.
In contrast, chapter 13 is a lengthy and more complicated proceedings. In
exchange for a discharge of most of their debts, people must devote all of their
disposable income for the next three- to- five years to paying their creditors through
a repayment plan approved by the bankruptcy court.57 Debtors receive the discharge
only after they make all payments under the plan.58 Because their attorneys handle
See Jean Braucher et al., Race, Attorney Influence, and Bankruptcy Chapter Choice, 9 J.
EMPIRICAL L. STUDIES 393, 394 (2012) (describing chapter 7).
50
See id.; Dalié Jiménez, The Distribution of Assets in Consumer Chapter 7 Bankruptcy
Cases, 83 AM. BANKR. L.J. 795, 797 (2009) (finding that 93% of individual chapter 7 debtors
who filed bankruptcy petitions in 2007 entered bankruptcy with no distributable assets).
51
See Braucher et al., supra note 49, at 394 (discussing exemptions).
52
See id.; Jiménez, supra note 50, at 801 (noting that “[s]ecured creditors are the real
winners in the bankruptcy game”).
53
See Braucher et al., supra note 49, at 394; Katherine Porter, The Pretend Solution: An
Empirical Study of Bankruptcy Outcomes, 90 TEX. L. REV. 103, 153 (2011) (noting that the
chapter 7 discharge rate exceeds 95%).
54
See Katherine Porter, Driven by Debt: Bankruptcy and Financial Failure in American
Families, in BROKE: HOW DEBT BANKRUPTS THE MIDDLE CLASS 1, 1-2 (Katherine Porter, ed.,
2012) (describing this hearing); 11 U.S.C. § 341 (2016) (requiring debtors to attend the meeting).
55
11 U.S.C. § 341 (2016).
56
Porter, Driven by Debt, supra note 54, at 2; see also Nathalie Martin, Poverty, Culture
and the Bankruptcy Code, 12 CLINICAL L. REV. 203, 214 (2005) (describing the palpable
nervousness and shame of these hearings).
57
See Braucher et al., supra note 49, at 394 (describing chapter 13).
58
See id.
49
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
11
the court hearings, as with debtors who file under chapter 7, chapter 13 debtors are
unlikely to go to court or meet the bankruptcy judge. These debtors’ day in court also
is the “341 hearing,” which proceeds the same as in a chapter 7 case. 59
Individuals may elect to file under chapter 13 for a variety of reasons. Chief
among these is reasons is that chapter 13 allows debtors to retain all their assets,
regardless of whether those assets are exempt and regardless of whether they are
secured.60 As such, people may choose to file under chapter 13 to keep homes they
would lose to the bankruptcy trustee for liquidation if they filed under chapter 7. 61
The Bankruptcy Code also moderates access to chapters 7 and 13. With the
passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
(BAPCPA),62 the Code does so by using a “means test” that evaluates a debtor’s
ability to repay creditors based on the debtor’s monthly income, expenses, and
outstanding debt.63 If the mechanical formula deems a debtor’s monthly income less
expenses sufficient to repay a large enough portion of outstanding debts, the debtor
must file under chapter 13 or not at all.64 Stated differently, those debtors with too
much income or too little debt either are not “honest” or are not “unfortunate”
enough, or perhaps both, and are denied access to chapter 7. Indeed, one of the stated
purposes of BAPCPA’s means test was to curtail perceived abuses of bankruptcy by
people who supposedly strategically filed to skirt paying debts they could repay. 65 As
discussed next, because of the financial situations of the people who file for
bankruptcy, the addition of the means test has not resulted in a shift in the relative
11 U.S.C. § 341 (2016); see also Porter, Pretend Solution, supra note 53, at 117-18
(2011) (discussing the mechanics of chapter 13, including the role of the bankruptcy trustee).
60
See supra notes 51 and 52 and accompanying text.
61
See Braucher et al., supra note 49, at 395 (“It is widely believed among consumer
bankruptcy specialists that a client’s desire to save a home is the most common reason for filing
Chapter 13 . . . .”); Porter, Pretend Solution, supra note 53, at 133-36 (reporting that almost 90%
of chapter 13 debtors indicated that keeping their house was a very important goal when filing
for bankruptcy, and that, for over 50% of the debtors, it was their most important goal). Debtors
also may file under chapter 13 because it allows for the payment of attorney’s fees over time,
while attorneys typically require all fees to be paid up front when filing chapter 7 cases. See
Porter, Pretend Solution, supra, at 118-19 (discussing payment of attorneys’ fees).
62
Pub. L. No. 109-8, 119 Stat. 23 (2005), which had an effective date of October 17, 2005.
63
11 U.S.C. § 707(b)(2) (2016).
64
See Porter, Pretend Solution, supra note 53, at 119 (discussing the means test); Lawless
et al., supra note 10, at 352-53 (same); Charles Jordan Tabb, The Death of Consumer Bankruptcy
in the United States?, 18 EMORY DEV. J. 1, 1 (2001) (foreseeing that BAPCPA would leave
debtors with “the Hobson’s choice of foregoing bankruptcy relief altogether or attempting to
‘repay their creditors . . .’ in a chapter 13 repayment plan”).
65
See Lawless et al., supra note 10, at 351-52, 378 (discussing which debtors BAPCPA’s
means test was meant to target); A. Mechele Dickerson, Consumer Over-Indebtedness: A U.S.
Perspective, 43 TEX. INT. L.J. 135, 144 (2008) (noting that BAPCPA evidences a policy closer to
the “concept of an earned rather than ‘fresh’ start”)’; Katherine Porter, Bankrupt Profits: The
Credit Industry’s Business Model for Postbankruptcy Lending, 93 IOWA L. REV. 1369, 1375-78
(2008) (overviewing the debates that led to BAPCPA’s passage).
59
12
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
percentage of individuals filing under chapter 7 and chapter 13, despite BAPCPA’s
advocates prediction that it would force more people to file under chapter 13.
C. Who Files for Bankruptcy?
Though BAPCPA’s supporters painted a picture of people using credit to spend
profligately and then strategically filing for bankruptcy, decades of research shows
that people file after experiencing shocks to income or expenses, with job loss,
divorce, and significant medical expenses triggering the vast majority of filings. 66
Research further suggests that the decision to file stems from the stress of being
unable to pay back crushing debts despite trying for years to do so: sleepless nights,
arguments over money with spouses, and endless call from creditors. 67 And the
people who file predominately identify as middle class based on education,
occupation, and home ownership, even if their current incomes are no longer
consistent with middle class status.68
By the numbers, across the United States, on average, two-thirds of consumers
file under chapter 7 and one-third file under chapter 13. 69 These percentages have
remained steady before and since BAPCPA’s passage. 70 The reason that these
percentages have not shifted relates to the financial situations of people who file for
bankruptcy. Based on the means test, almost ninety percent of individuals who file
under chapter 13 are eligible to file under chapter 7.71 Rather than being driven by
See, e.g., ELIZABETH WARREN & AMELIA WARREN TYAGI, THE TWO-INCOME TRAP:
WHY MIDDLE-CLASS MOTHERS AND FATHERS ARE GOING BROKE 81 (2003) (“Nearly nine out
of ten families with children cite just three reasons for their bankruptcies: job loss, family
breakup, and medical problems.”); TERESA A. SULLIVAN ET. AL., THE FRAGILE MIDDLE CLASS:
AMERICANS IN DEBT 2 (2000) (noting that five sources of financial stress leads to bankruptcy);
Lawless et al., supra note 10, at 378-79 (discussing whether post-BAPCPA filing data support
the “strategic actor” vision of debtors versus view that “exogenous shocks” drives filings).
67
See Porter, Pretend Solution, supra note 53, at 142-44 (noting that “[b]y the time they
file bankruptcy, debtors have often endured months of dunning and threats of legal action,” and
discussing how that caused stress and arguments); Deborah Thorne, Women’s Work, Women’s
Worry?, in BROKE: HOW DEBT BANKRUPTS THE MIDDLE CLASS 136, 136 (Katherine Porter, ed.,
2012) (investigating how debt is experienced as more stressful by women); supra note 10.
68
See Elizabeth Warren, A Vulnerable Middle Class: Bankruptcy and Class Status, in
BROKE: HOW DEBT BANKRUPTS THE MIDDLE CLASS 29, 38 (Katherine Porter, ed., 2012)
(“People in bankruptcy accomplished a great deal before this financial collapse, and they reflect a
class status that is much like their [middle class] counterparts around the country.”); Lars Lefgren
& Frank McIntyre, Explaining the Cross-State Differences in Bankruptcy Rates, 52 J. L. & ECON.
367, 370 (2009) (noting that consumer bankruptcy filing rates “are most common in zip codes
with many households with incomes between $30,000 and $60,000,”—that is, the middle class).
69
See Braucher et al., supra note 49, at 396 (reporting that the 2010 national average of
chapter 13 petitions was 31.7%).
70
See Porter, Pretend Solution, supra note 53, at 116, 119 (overviewing filing statistics
and noting that “despite successive reforms that have made Chapter 13 less generous to debtors,
the percentage of Chapter 13 filings has barely budged . . .”).
71
ELIZABETH WARREN ET AL., THE LAW OF DEBTORS AND CREDITORS __ (7th ed. 2015).
66
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
13
the means test, research shows that which chapter a debtor files under has much
more to do with the culture of bankruptcy filings in the debtor’s judicial district. For
instance, in 2010, the percentage of consumers who filed under chapter 7 versus
chapter 13 varied drastically across the United States, from a low of 4.9 percent
filing under chapter 13 to a high of 74.1 percent filing under chapter 13. 72 These
variances are linked to what is termed “local legal culture,” whereby bankruptcy
attorneys, trustee, and judges significantly influence debtors’ choices between
chapters.73 Tellingly, interviews with consumer debtors reveal that many do not even
consider the trade-offs between chapter 7 and chapter 13. 74
Instead, stress in the face of unanticipated and unmanageable debts seems to
motivate people to think about bankruptcy in the first instance. What chapter of
bankruptcy they file under is a second order issue, which makes sense given that
simply deciding to seek legal assistance is a significant hurdle for people to clear. 75
Indeed, focusing on how people deal with the stressors of overindebtedness may help
explain why only a portion of those people who would benefit from filing actually
file.76 More importantly, noting that lost income, unanticipated expenses, stress, and
social class seem to intersect to lead to bankruptcy filings provides one set of
dynamics necessary to answer the question of why some people decide to file for
bankruptcy at a particular point during the progression of their overindebtedness. To
introduce the second set of dynamics necessary to answer this question, the next Part
investigates how people use other parts of the legal system to deal with situations
and events that test their place within society and elicit strong negative emotions.
III. EXPRESSION, EMOTIONS, SOCIAL STANDING, AND THE LEGAL SYSTEM
Actions carry certain meanings.77 People decide to act not only because they
foresee consequences from those actions, but also because the actions themselves
express who they are or how they want members of their communities and society to
see them—that is, their self-conception. 78 Law and the processes and decisions of the
See Braucher et al., supra note 49, at 396 (discussing these statistics).
See id. at 395-97 (discussing the “local legal culture” that influences which bankruptcy
chapters consumers file under based on the judicial district from which they hail); Jean Braucher,
Lawyers and Consumer Bankruptcy: One Code, Many Cultures, 67 AM. BANKR. L.J. 501, 503
(1993) (reporting the results of interviews with 57 consumer bankruptcy attorneys and trustees in
four cities and describing chapter choice as dominated by attorneys).
74
See Porter, Pretend Solution, supra note 53, at 119 (noting that of interviewed debtors
who filed under chapter 13, “only about half (47%) of all debtors even considered Chapter 7”).
75
This is a naming, blaming, claiming issue. See supra note 5.
76
See White, supra note 10.
77
See Lawrence Lessing, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943
(1995) (discussing the expressiveness of actions); Jean Hampton, Correcting Harms Versus
Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1669-70 (1992) (noting that
“human behavior is expressive” (emphasis in original)).
78
See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 597
72
73
14
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
legal system likewise carry meanings, in part providing ways for people to assert
their self-conceptions and establish their social standing, with the authority of the
state behind them. This Part highlights key aspects of the expressive function of the
legal system, with an emphasis on how people use the legal system to define their
place in society by correcting perceived harms to themselves, including distancing
themselves from the emotional repercussions of the harms.
A. Expressive Function of Law and the Legal System
Legal rules themselves carry meanings and thus express social norms and serve
important social purposes apart from directly controlling people’s behavior. 79
Occasionally judges express their views of law’s place in society through opinions
addressing more than the discrete issues presenting, thereby enforcing the statements
laws make.80 The actions of judges, other government officials, and citizens through
participation in the public and private legal systems similarly express society’s view
of the accused offender and presumptive victim in the distinct situations presented.
Scholars have most clearly refined the theory of the expressive function of the
legal system in the context of criminal law. Of consequence to the theory advanced
in this Article,81 when a prosecutor takes action against an accused offender, and that
offender receives punishment at the hands of a judge or jury, the victim and others
may perceive society as saying that the offender’s actions were wrong. 82 Punishment
expresses “disapproval and reprobation, on the part either of the punishing authority
(1996) (“Actions have meanings as well as consequences.”); Cass R. Sunstein, On the Expressive
Function of Law, 144 U. PENN. L. REV. 2021, 2021-22 (1996) (discussing actions and meanings).
See generally RICHARD H. MCADAMS, THE EXPRESSIVE POWERS OF LAW: THEORIES AND LIMITS
(2015) (exploring how law coordinates behavior and creates compliance apart from sanctions).
79
See Kenworthey Bilz & Janice Nadler, Law, Psychology, and Morality, 50 PSYCH.
LEARNING & MOTIVATION 101, 102 (2009) (“[T]he law prescribes and proscribes morally laden
behaviors, but it also unabashedly attempts to shape moral attitude and beliefs.”); Sunstein, supra
note 78, at 2022-24 (“Many people support law because of the statements made by law, and
disagreements about law are frequently debates over the expressive content of law.”).
80
See Jason Mazzone, When Courts Speak: Social Capital and Law’s Expressive
Function, 49 SYRACUSE L. REV. 1039, 1039 (1999) (“Courts periodically tell us things—how the
world is, what values we ought to have, or how the economy or society work.”).
81
The expressive dimensions of criminal law encompass more than the aspect summarized
in this part. For a more complete overview, see Matthew D. Adler, Expressive Theories of Law:
A Skeptical Overview, 148 U. PENN. L. REV. 1363, 1414-27 (2000).
82
See Kahan, supra note 78, at 597-98 (discussing the expressive theory of criminal
punishment); Hampton, An Expressive Theory of Retribution, supra note 16, at 20-22 (discussing
retribution and moral education as both relate to the message sent by criminal punishment about
the “moral relationship among human beings”); Joel Feinberg, The Expressive Function of
Punishment, reprinted in JOEL FEINBERG, DOING & DESERVING: ESSAYS IN THE THEORY OF
RESPONSIBILITY 95-118 (1970) (discussing moral condemnation through legal punishment).
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
15
himself or of those ‘in whose name’ the punishment is inflicted.” 83 Punishment thus
carries the “symbolic significance” of moral condemnation of the offender. 84
The symbolic significance of criminal punishment links directly with a victim’s
social worth and standing. A person’s view of her “social esteem”—her value and
where she stands in relation to others in her social group and society at large—is
integral to fulfilling her “need to belong.” 85 Assessment of “social esteem”
encompasses two social group dimensions: “within groups” and “between groups.” 86
People view themselves as belonging to a particular social group, their “within
group,” and in turn compare their “ingroup” to other social groups, “outgroups,” to
assess how their groups stand “between groups” in society. 87 A person’s ingroup
itself carries a positive or negative connotation, which is determined by comparing
the prestige of the group to relevant outgroups: positive discrepancies result in high
prestige and negative discrepancies produce low prestige. 88 Because people value a
“positive social identity,”89 they will strive to enhance their group’s position, or, at
the very least, maintain their group’s social identity. 90 A necessary corollary of this
observation is that when their social identity is threatened, people will seek to assert
and confirm their social status and their group’s relative position in society. 91
FEINBERG, supra note 82, at 98.
Id.; see also Kahan, supra note 78, at 593 (“Punishment is not just a way to make
offenders suffer; it is a special social convention that signifies moral condemnation.”).
85
Bilz, supra note 13, at 1086; see also Richard H. McAdams, The Origin, Development,
and Regulation of Norms, 96 MICH. L. REV. 339, 355-56 (1997) (discussing how “people seek
esteem: the good opinion or respect of others”); Roy F. Baumeister & Mark R. Leary, The Need
to Belong: Desire for Interpersonal Attachments as a Fundamental Human Motivation, 117
PSYCHOL. BULL. 497, 497 (1995) (discussing the need to affiliate with other people); Tom R.
Tyler & Heather J. Smith, Justice, Social Identity, and Group Processes, in THE PSYCHOLOGY OF
THE SOCIAL SELF 223, 223 (Tom R. Tyler et al., eds., 1999) (“[G]roups both define who people
are and them how to evaluate what they are worth.”).
86
See Bilz & Nadler, supra note 79, at 122-23 (discussing the aspects of social standing);
Tajfel & Turner, supra note 12, at 15-16 (overviewing social identity and social comparison).
87
See Tajfel & Turner, supra note 12, at 15-16 (conceptualizing a group “as a collection of
individuals who perceive themselves to be members of the same social category, share some
emotional involvement in this common definition of themselves, and achieve some degree of
social consensus about the evaluation of their group and of their membership in it.”).
88
See id. at 16-17 (“The evaluation of one’s own group is determined with reference to
specific other groups through social comparisons in terms of value-laden attributes and
characteristics.”); John C. Turner & Rina S. Onorato, Social Identity, Personality, and the Self
Concept: A Self-Categorization Perspective, in THE PSYCHOLOGY OF THE SOCIAL SELF 11, 18
(Tom R. Tyler et al., eds., 1999) (discussing comparisons of ingroup and relevant outgroups).
89
Bilz, supra note 13, at 1086.
90
See Tajfel & Turner, supra note 12, at 16-17 (discussing how positive and negative
discrepancies may lead to competitive acts among social groups); Wenzel, supra note 15, at 383
(“Status and power are inherently relative or competitive.”).
91
See Wenzel, supra note 15, at 383 (discussing how victims psychologically distinguish
between themselves and perpetrators).
83
84
16
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
In the context of crime, as argued by Jean Hampton, an offender’s actions both
may degrade and demean the victim, imperiling the victim’s social worth and
standing.92 The offender’s actions may violate the victim’s bodily integrity,
possession of property, or life. In this way, the offender’s actions may prevent the
victim from “realization” of her value. 93 Even if the offender’s actions do not inflict
harm or suffering on the victim, the victim may lose status within her ingroup. The
offender’s actions may prevent the victim from receiving “acknowledgement” by
others of her value94 because “inherent in a criminal’s action is the message that the
victim is not worth enough for him to treat her better.” 95 Others may share the
victim’s sense of loss in social standing, causing the victim to lose social esteem. 96 In
both instances, the victim will seek to reclaim her social worth and standing. 97
Of course, the victim could take action against the offender herself. But such
action might violate social norms, and, more importantly, would not communicate to
the victim how her peers and society view her relative worth and standing. 98 In
contrast, a criminal prosecution provides “a referendum of the social standing and
worth of the victim,” allowing the victim to objectively assess her social esteem
through the eyes of others.99 If a judge or jury of the victim’s peers punishes the
accused, the victim may conclude that society believes that the message of the
offender’s action about her value and social worth were incorrect, thereby restoring
her social esteem. In contrast, if a judge or jury does not punish the accused, the
victim may conclude that her community disdains her, that the accused’s actions
were appropriate, and that she belongs to a less prestigious ingroup. 100
Though Hampton’s and other’s claims are descriptive and normative, growing
empirical evidence shows that victims (and third parties) seek punishment against
Hampton, Correcting Harms, supra note 77, at 1666 (noting that some actions are “an
affront to the victim’s value or dignity”); Hampton, An Expressive Theory of Retribution, supra
note 16, at 6 (distinguishing degradation from feeling demeaned).
93
Hampton, Correcting Harms, supra note 77, at 1672, 1678.
94
Id.
95
Hampton, An Expressive Theory of Retribution, supra note 16, at 12.
96
Kenworthey Bilz and John M. Darley, What’s Wrong With Harmless Theories of
Punishment, 79 CHI. KENT L. REV. 1215, 1233-34 (2004) (discussing how robbery victim report
that feelings of being violated are more detrimental to them than the actual material loss).
97
See Bilz, supra note 13, at 1086-87 (“[People] aspire to be well-regarded members of
the groups to which they do belong, and they value having high standing compared to other
groups”).
98
See John Darley et al., Enacting Justice: The Interplay of Individual and Institutional
Perspectives, in THE SAGE HANDBOOK OF SOCIAL PSYCHOLOGY 458, 458 (Michael Hogg & Joel
Cooper, eds. 2003) (“People generally live their lives within a network of authorities, rules, and
socializing forces . . . that articulate and transmit norms of appropriate conduct.”); T OM R. TYLER
ET AL., SOCIAL JUSTICE IN A DIVERSE SOCIETY 155-58 (1997) (discussing individual’s reactions
to perceived injustices and to what extent people perceive that each action restores fairness).
99
Bilz, supra note 13, at 1088-89 (“Social status is, by definition, social.”)
100
See id. at 1088 (noting the significance of punishment or lack of punishment); Kahan,
supra note 78, at 598 (same).
92
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
17
perceived offenders out of a desire for retribution, which itself is animated in part by
the victims’ concern about their social standing. 101 This research confirms precisely
what Hampton’s theory predicts: when an accused is punished, community
members’ perceptions of the worth of the victim increases, but when an accused
escapes punishment, community members respect and value the victim less. 102
Criminal punishment, meted out by the criminal justice system, symbolically
acknowledges and speaks to the victims’ social worth and standing, while
vindicating the victim through the imposition of actual punishment. 103
Similarly, when a private citizen seeks to hold an accused offender accountable
through a legal proceeding, and a judge or jury so holds the other accountable, this
too sends a message about what society thinks of the offender’s actions, the offender
herself, and the victim. Like the outcome of a criminal action, tort verdicts or even a
sincere apology from a perpetrator to the victim convey information about the
wrongfulness of the accused’s behavior, thereby communicating to the victim that
she is a valued member of society. 104 For example, an award of punitive damages
may express to the victim and others that society is outraged by the accused
offender’s actions, which will entrench social norms and demonstrate to the victim
and the perpetrator their relative places within their communities. 105
As with the theory of the expressive function of criminal law, empirical
research shows that plaintiffs’ goals in litigation transcend monetary concerns and
See Bilz, supra note 13, at 1088 (overviewing this empirical evidence).
See id. at 1088-89 (noting further that the level of punishment also effects perceptions
about the victim’s social standing); Uli Orth, Secondary Victimization of Crime Victims by
Criminal Proceedings, 15 SOC. JUSTICE RESEARCH 313, 313 (2002) (finding that victims who
believe that the criminal justice system failed them feel rejected by their community and by their
government, as a proxy for broader society); Carloyn L. Hafer, Why We Reject Innocent Victims,
in THE JUSTICE MOTIVE IN EVERYDAY LIFE 109, 109 (Dale T. Miller, ed., 2011) (finding that if
an accused is not punished, third parties tend to disassociate themselves from the victim);
Kenworthey Bilz, Testing the Expressive Theory of Punishment, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2426327 (demonstrating via experiments that
criminal punishment of an accused increases the victim’s social standing in the eyes of third
parties, while failure to punish decreases the victim’s social standing in the eyes of third parties).
103
See Hampton, Correcting Harms, supra note 77, at 1686 (discussing retribution); Neil
Vidmar & Dale T. Miller, Social Psychological Processes Underlying Attitudes Toward Legal
Punishment, 14 L. SOC. REV. 565, 570-72 (1980) (contrasting “two motives for punishment:
behavior control and reassertion of the reactor’s values and beliefs,” i.e. retribution).
104
See Alan Strudler, Mass Torts and Moral Problems, 11 L. & PHILOSOPHY 297, 316-17
(1992) (arguing that the “tort system, when it works well, constitutes a conventional device by
which an injurer may be compelled to express regret to his victim”); JENNIFER K. ROBBENNOLT
& VALERIE P. HANS, THE PSYCHOLOGY OF TORT LAW 18-20 (2016) (noting that public judgment
can “communicate to an injured party that he is a respected member of the community” and that
an apology can provide accountability from the accused, restoring the victim’s social standing).
105
See Cass R. Sunstein et al., Assessing Punitive Damages (with Notes on Cognition and
Valuation in Law, 107 YALE L.J. 2071, 2086 (1998) (connecting punitive damages “with their
historical origins in affronts to the honor of the victims”).
101
102
18
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
include aims such as acknowledgement of harm and admissions of fault. 106 These
aims are expressive and communicative in nature. As developed in Part IV, in a
similar way, people’s goals in filing for bankruptcy may include securing
communication about their social worth and standing in light of their debt problems.
B. Value of Legal Procedures
Though the ultimate punishment of an accused through public and private legal
proceedings undoubtedly is important to a victim’s perception of her social esteem,
the criminal and civil justice processes themselves also are crucial to a victim’s
assessment of her relative worth and position in society. People often are as or more
concerned with the perceived fairness of a proceeding than the proceeding’s
outcome.107 They also are more apt to accept the outcome if they perceive that the
procedure that led to that outcome was fair. 108 When people view legal procedures as
just, they further view the institution that adjudicated the outcome as legitimate. 109
Assessment of “procedural justice” hinges on several aspects of the process:
whether people believe that they had a voice; whether people perceive that they were
treated respectfully; whether people feel that the decision-maker sincerely considered
their case; and whether people observe the forum as neutral and even-handed. 110 The
See, e.g., Wenzel, supra note 15, at 377 (“Victims seem to place less importance on
material restoration than ‘emotional restoration’.”) Tamara Relis, “It’s Not About The Money!”:
A Theory on Misconceptions of Plaintiffs’ Litigation Aims, 68 U. PITT. L. REV. 701, 706-07
(2007) (interviewing parties and attorneys involved in 64 medical malpractice cases); A USTIN
SARAT & WILLIAM FELSTINER, DIVORCE LAWYERS AND THEIR CLIENTS 93 (1995) (finding that
litigants seek apologies and moral vindication to prove that they have been treated unfairly).
107
See generally Lind, Procedural Justice, Disputing, and Reactions to Legal Authorities,
supra note 17 (discussing procedural justice); EDGAR ALLAN LIND & TOM R. TYLER, THE
SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988) (synthesizing research about how people
are more interested in the processes of how society makes allocations than processes’ outcomes).
108
See, e.g., Tom R. Tyler, Does the American Public Accept the Rule of Law? The
Findings of Psychological Research on Deference to Authority, 56 DEPAUL L. REV. 661, 664-70
(2006) (overviewing research that identifies “procedural justice and trust as the key antecedents
of the willingness to defer to legal authorities”); Tom R. Tyler, Social Justice: Outcome and
Procedure, 35 INT. J. OF PSYCHOL. 117, 119 (2000) (reviewing research that demonstrates that
people are more willing to accept decisions that they believe were made through fair decisionmaking procedures); LIND & TYLER, supra note 107, at 66-70 (discussing how people evaluate
legal decisions and outcomes).
109
See, e.g., Tyler, Rule of Law, supra note 108, at 664-65 (noting further that “[s]tudies
show that people continue to adhere to fair decisions over time”); LIND & TYLER, supra note
107, at 81-82 (overviewing research regarding people’s acceptance of decisions); T OM R. TYLER,
WHY PEOPLE OBEY THE LAW 94-112 (1990) (discussing how a person’s experience during a
legal proceeding influences that person’s perception of the legitimacy of the outcome).
110
See Tyler, Rule of Law, supra note 108, at 665 (outlining four elements, “participation,
neutrality, treatment with dignity and respect, and trust in authorities,” that “generally shape
reactions to courts”); Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups,
in 25 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 115, 138-43 (Mark P. Zanna ed.,
106
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
19
ability to tell one’s story possibly is the most important aspect. Believing that one
has a voice affects evaluations of respect, trust in authorities, and neutrality. 111
Feeling heard includes speaking for oneself or being present while an attorney
speaks on the individual’s behalf. 112 Having a voice is so crucial that the positive
effects of feeling heard can accrue even when people understand that being heard
likely will have little effect on the ultimate ruling. 113
People also are concerned about believing that they can trust the authorities
overseeing the adjudicatory process. 114 The need for such trust in particular links
with people’s use of the legal system to assess and assert their social worth and
standing: receiving sincere consideration by the authorities overseeing the process
signals the individual’s social esteem.115 Through overseeing the process, judges and
other authorities within the legal system may express the values and beliefs of the
social group that a victim seeks to assess relative to her social worth and standing—
that is, her ingroup.116 As importantly, authorities’ actions and decisions also
1992) (overviewing these four critical factors to people’s evaluations of procedural justice). See
generally JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL
ANALYSIS (1975) (establishing the foundations of procedural justice).
111
See, e.g., Nourit Zimmerman & Tom R. Tyler, Between Access to Counsel and Access
to Justice: A Psychological Perspective, 37 FORDHAM URB. L.J. 473, 488 (2009) (reporting that
voice has the “strongest influence”); Lind, supra note 107, at 179 (observing that people care
about voice because they want to know that the decision maker is fully informed, which
influences the trust in authorities necessary for people accept the ultimate decision);
ROBBENNOLT & HANS, supra note 104, at 4 (noting the importance of “[t]he opportunity to
recount one’s own story of an injury” in conjunction with procedural justice and the tort system).
112
See Donna Shesowksy, The Psychology of Procedural Preference: How Litigants
Evaluate Legal Procedures Ex Ante, 99 IOWA L. REV. 637, 673-78 (2014) (discussing litigants’
preferences for participation of attorneys); Roselle L. Wissler, Representation in Mediation:
What We Know From Empirical Research, 37 FORDHAM URB. L.J. 419, 447-50 (2010)
(discussing relationships among voice, participation, and acceptance of outcomes in mediations).
113
See Tyler, Social Justice, supra note 108, at 121 (noting that having a voice allows
people to feel they are participating). Nonetheless, if people believe they are being manipulated,
they may respond with “extremely negative reactions.” Lind, supra note 107, at 187.
114
See Tom R. Tyler & Peter Degoey, Trust in Organizational Authorities: The Influence
of Motive Attributions on Willingness to Accept Decisions, in TRUST IN ORGANIZATIONS:
FRONTIERS OF THEORY AND RESEARCH 331, 333-34 (Roderick M. Kramer & Tom R. Tyler, eds.,
1996) (discussing how trust in authorities is “the strongest predictor of evaluations of the fairness
of decision-making procedures” and impacts people’s acceptance of decisions).
115
See, e.g., Tyler, Social Justice, supra note 108, at 122 (discussing how people look for
cues that the decision maker tried to apply objective standards carefully based on the relevant
facts); Tom R. Tyler, Psychological Models of the Justice Motive: Antecedents of Distributive
and Procedural Justice, 67 J. OF PERSONALITY & SOC. PSYCH. 850, 858 (1994) (noting the
connection between consideration and an individual’s value and social standing); Roderick M.
Kramer et al., Collective Trust and Collective Action: The Decisions to Trust as a Social
Decision, in TRUST IN ORGANIZATIONS: FRONTIERS OF THEORY AND RESEARCH 357, 399
(Roderick M. Kramer & Tom R. Tyler, eds., 1996) (detailing how “[p]rocedures are one of the
major vehicles through which self-relevant information is imparted to group members”).
116
See Bilz & Nadler, supra note 79, at 123 (“People perceive that how they are treated
20
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
demonstrate how a person is regarded between social groups—that is, outgroups. 117
Given that representatives of the justice system often are viewed as belonging to
important outgroups, when people believe they can trust these authorities, their own
self-esteem is confirmed and enhanced. 118
As explored in Part IV, individuals struggling with debt not only may turn to
the bankruptcy system to evaluate their social esteem, but also to access a fair
procedure to tell the story of their path to overindebtedness. Indeed, people who have
been trying for years to pay back overwhelming debts likely have experienced and
continue to wrestle with a host of emotions that impact their self-conceptions and
social identities. Certain of these emotions may drive people to act to deal with their
debts, with filing for bankruptcy being their last remaining viable action.
C. Emotions and the Legal System
A discussion of the social-psychological perspectives that underlie the
expressive function of the legal system would be incomplete without an examination
of how emotions influence people’s decisions to take legal action. Robert Solomon
refers to emotions as “engagements with the world.”119 This description aptly
emphasizes that emotions affect how people act, as well as manifest as cognitive and
physiological states.120
individually within a legal regime conveys some information about how well regarded they are
by their group.”); Jason Sunshine & Tom Tyler, Moral Solidarity, Identification with the
Community, and the Importance of Procedural Justice: The Police as Prototypical
Representatives of a Group’s Moral Values, 66 SOC. PSYCH. Q. 153, 154 (2003) (discussing how
people evaluate how authorities exercise authority on behalf of a social group).
117
See Bilz & Nadler, supra note 79, at 123 (“[T]reatment by authoritative legal actors can
also shed light on how [a] group is regarded within the collective as a whole”); Bilz, supra note
13, at 1090 (noting that in some instances people may prefer an outgroup member to mete out
judgment); Tyler & Smith, supra note 85, at 225 (noting research showing “that evaluations of
fair treatment are significantly related to attitudes and behaviors about the larger group that the
authority represents”).
118
See Bilz, supra note 13, at 1089-90 (noting that empirical work “demonstrates that the
more representative or authoritative the person [a victim is] interacting with is, the more
diagnostic of social standing [the victim] will perceive [her] treatment by [the person] to be”);
Heather J. Smith et al., The Self-Relevant Implications of the Group-Value Model: Group
Membership, Self-Worth, and Treatment Quality, 34 J. OF EXPERIMENTAL SOC. PSYCHOL. 470,
489-91 (1998) (discussing experiments testing how membership in the same or different social
group as the authority effects people’s self-esteem); Tyler & Degoey, supra note 114, at 338
(discussing how trust in authorities can influence people’s self-esteem and self-worth).
119
Robert C. Solomon, Emotions, Thoughts, and Feelings: Emotions as Engagements with
the World, in THINKING ABOUT FEELING: CONTEMPORARY PHILOSOPHERS ON EMOTIONS 1
(Robert C. Solomon, ed., 2004); see also Dacher Keltner & Jennifer S. Lerner, Emotion, in THE
HANDBOOK OF SOCIAL PSYCHOLOGY 317 (Daniel Gilbert, et al., eds., 2010) (discussing how
emotions are social); ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF
LIFE (1993) (conceptualizing emotions’ connection to society).
120
See Emily Kidd White, Till Human Voices Wake: The Role of Emotions in the
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
21
Emotions broadly are categorized as positive and negative, and are experienced
as pleasurable or painful.121 Negative, painful emotions—anger, fear, sadness, envy,
guilt, shame, and disgust—are most relevant to the expressive function of law. 122 Of
these, anger, guilt and shame, and disgust impact social relations and have the
potential to animate people’s use of the legal system.
1. Dealing with Anger Through Retributive and Restorative Justice
Anger is one of the most powerful emotions, and the emotion most often
associated with criminal and civil justice. Feelings of anger are dependent in large
part on social norms.123 Anger arises when a person feels insulted or hurt in a
significant way.124 Feeling slighted in turn hinges on presuppositions about proper
behavior and what constitutes respect. People typically expect to be treated with
more respect by members of their ingroup than members of outgroups, and being
treated with disrespect by members of an ingroup versus an outgroup provokes
different response.125 Regardless, however, if people are not treated according to
expected norms, they will question their social status. 126 Anger presses people to
defend their status and reinforce what they believe is appropriate behavior. 127
In particular, anger produces a desire to effect change and move against an
obstacle or person.128 Crucially, angry individuals are more likely to be optimistic
Adjudication of Dignity Claims, 3 JLRS 201, 204 (2014) (discussing the affective and cognitive
states of emotions); Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in
Criminal Law, 96 COLUM. L. REV. 269, 297 (1996) (“Emotions motivate behavior.”).
121
See White, supra note 120, at 204 (overviewing the physiological aspects of emotions);
John Gardner, The Logic of Excuses and the Rationality of Emotions, 43 J. OF VALUE INQUIRY
315, 327 (2009) (noting that “every emotion has either a positive or negative orientation”).
122
See Kahan & Nussbaum, supra note 120, at 276 (listing the major emotions); RICHARD
S. LAZARUS, EMOTION AND ADAPTATION 217 (1991) (listing the main negative emotions).
123
See LAZARUS, supra note 122 at 217-34 (overviewing anger).
124
See Dale T. Miller, Disrespect and the Experience of Injustice, 52 ANN. REV. PSYCHOL.
527, 533 (2001) (discussing research showing that disrespect leads to anger and aggression);
Richard S. Lazarus, Progress on a Cognitive-motivational-relational Theory of Emotion, 46 AM.
PSYCHOL. 819 (1991) (noting that insult is the primary instigator of anger).
125
See Miller, supra note 124, at 533 (linking disrespect and “social imbalance”);
WILLIAM IAN MILLER, HUMILIATION: AND OTHER ESSAYS ON HONOR, SOCIAL DISCOMFORT,
AND VIOLENCE 16 (1993) (describing insults and injuries as giving “negative emotional value”).
126
See Miller, supra note 124, at 539 (noting that ingroup offenses provoke a “How dare
they?” response while outgroup offenses provoke a “How could they?” response).
127
See Miller, supra note 124, at 534 (linking perceptions of injustice with anger); Kahan
& Nussbaum, supra note 120, at 347-48 (discussing anger, social norms, and status); M ILLER,
supra note 130, at 16 (conceptualizing insults and injuries as “gifts” that “demand repayment”).
128
See Jennifer S. Lerner, et al., Emotion and Decision Making, 66 ANNU. REV. PSYCHOL.
799, 808 (2015) (discussing how anger shapes decision making); Amanda D. Angie, et al., The
Influence of Discrete Emotions on Judgement and Decision-Making: A Meta-analytic Review, 25
COGNITION AND EMOTION 1393, 1395-96 (2011) (comparing how emotions affect decisions and
noting that anger “motivate[s] a person to take some action against the causal agent”).
22
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
about future events, which orients angry individuals towards risk-taking behavior. 129
All decisions involve predictions about how the individual will feel in the future. 130
Anger’s optimism “serves a self-presentation function,” and induces an individual
into action to “establish one’s identity as a strong and determined person who
demands respect and does not tolerate unjust treatment by others,” thereby restoring
self-esteem and achieving closure.131
In the context of criminal law, anger is considered “a core component of
retributive justice reactions.”132 An injustice perpetrated against a victim triggers
anger. Drawing from this anger, the victim retaliates through the criminal justice
system in order to restore self-esteem and educate the offender about proper social
relations.133 Because people perceive injustices based on the offenders’ group
membership,134 if an injustice is perpetrated by a member of an outgroup, the victim
more likely will perceive the offense as a threat to her social status and be more
interested in retributive justice whereby another member of an outgroup, such as a
prosecutor, pursues revenge on the victim’s behalf.135 In contrast, if the offender is a
member of the victim’s ingroup, the victim will view the transgression as better
addressed through consensus building between herself and the ingroup offender and
will be more likely to pursue this consensus through a restorative procedure whereby
the victim speaks directly with her offender. 136 In both contexts, the punishment of
See Lerner, supra note 128, at 805 (detailing research linking anger and optimism);
Norbert Schwarz, Emotion, Cognition, and Decision Making, 14 COGNITION AND EMOTION 433,
435 (2000) (discussing how emotions affect cognitive processes). In comparison, fearful
individuals are more pessimistic about future events. This likely is why fear rather than anger has
been shown to motivate people’s decision to report property crimes to the police, which is a
decision distinct from taking legal action. Martin S. Greenberg & Scott R. Beach, Property
Crime Victims’ Decision to Notify the Police: Social, Cognitive, and Affective Determinants, 28
L. HUM. BEHAV. 177 (2004). See also LAZARUS, supra note 122 at 234-40 (overviewing fear).
130
See Darrell A. Worthy, et al., Effects of Emotion on Prospection During DecisionMaking, 5 FRONTIERS PSYCHOL. 1, 1-2 (2014) (discussing how immediate and expected
emotions influence decision making); Schwarz, supra note 129, at 435-36 (linking anticipated
feelings in decision making and post-decision feelings, particularly regret and disappointment).
131
Miller, supra note 124, at 540-41 (linking self-esteem and anger); see also Arne Roets
& Alain Van Hiel, An Integrative Approach of Judgment and Decision Making: The Impact of
Arousal, Affect, Motivation, and Cognitive Ability, 61 PSYCHOL. RECORD 497, 499-500 (2011)
(discussing closure as a motivator in decision making); Neil Vidmar, Retributive Justice: Its
Social Context, in THE JUSTICE MOTIVE IN EVERYDAY LIFE 291, 292 (Michael Ross & Dale T.
Miller, eds., 2002) (setting forth “a six-stage model of the social psychological dynamics of
retribution” that includes a progression from perceived norm violation, through anger).
132
Vidmar, Retributive Justice, supra note 131, at 292.
133
See Miller, supra note 124, at 540-41 (discussing the goals of retaliation); Wenzel,
supra note 15, at 380 (noting that “victims seek revenge to restore their honor and self-image”).
134
See supra note 125 and accompanying text.
135
See Wenzel, supra note 15, at 383 (detailing when victims will seek retributive justice).
136
See id. at 383-84 (discussing when victims will seek restorative justice); see also Tyler
G. Okitmoto & Michael Wenzel, The Symbolic Identity Implications of Inter and Intra-group
Transgressions, 40 EUR. J. SOC. PSYCHOL. 552, 553-54 (2010) (overviewing victim’s responses
129
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
23
offenders provides for the censure that undoes “the moral-symbolic meaning of the
offense.”137
2. Contending with Guilt and Shame
Though anger is the emotion most often discussed in connection with people
turning to law to assess their social standing, it is not the only emotion that may
animate people’s use of the legal system. Moreover, anger may not even be the most
important emotion influencing individual’s decisions to use the consumer bankruptcy
system. Guilt and shame, two distinct but related emotions, also may induce people
to take action to restore their sense of self and social standing.
Guilt and shame are two of the “self-conscious” emotions. Such emotions
require individuals “to have a sense of self as well as a set of standards” by which
they assess their own behavior as successful or failed.138 A person feels guilt when
she evaluates her action or behavior as failing, and focuses on what about her
specific behavior transgressed an important social norm. 139 With shame, a person
evaluates herself as a whole negatively as failing. 140 Guilt focuses on the action—“I
did that horrible thing”—while shame focuses on the person—“I did that horrible
thing.”141 Though the same situation can elicit guilt and shame, 142 shame is the social
“self-conscious” emotion, is regulated through community standards, and is linked
with a person’s social image and feeling devalued by society. 143
to offenses that place into question their self-worth and social status).
137
See Wenzel, supra note 15, at 379, 381 (comparing retributive and restorative justice);
Neil Vidmar, Retribution and Revenge, in HANDBOOK OF JUSTICE RESEARCH IN LAW 31, __
(Joseph Sanders & V. Lee Hamilton, eds., 2001) (discussing how anger influences the desire to
punish the offender and the purposes of such punishment).
138
Michael Lewis, Self-Conscious Emotions, 83 AM. SCIENTIST 68, 68 (1995); see also
Jessica L. Tracy & Richard W. Robins, Putting the Self into Self-Conscious Emotions: A
Theoretical Model, 15 PSYCHOL. INQUIRY 103, 105 (2004) (noting that people experience selfconscious emotions when they are aware they have succeeded or failed to live up to an ideal).
139
See Fabrice Teroni & Julien A. Deonna, Differentiating Shame From Guilt, 27
CONSCIOUSNESS AND COGNITION 725, 727 (2008) (“[G]uilt is tied to some specific behavior.”);
Lewis, supra note 138, at 71 (defining guilt).
140
See Teroni & Deonna, supra note 139, at 727 (defining shame); Lewis, supra note 138,
at 71 (same).
141
This example draws from HELEN BLOCK LEWIS, SHAME AND GUILT IN NEUROSIS 30
(1971). See Raffaele Rodogno, Shame, Guilt, and Punishment, 28 L. PHILOSOPHY 429, 432-33
(2009) (distinguishing shame and guilt).
142
See Paula M. Niedenthal, et al., “If only I weren't” Versus “If only I hadn’t”:
Distinguishing Shame and Guilt in Counterfactual Thinking, 67 J. PERSONALITY SOC. PSYCHOL.
585, __ (1994) (noting that shame and guilt are experienced differently despite arising from the
same situation).
143
See Teroni & Deonna, supra note 139, at 729 (linking shame and community
standards); Margaret F. Kemeny et al., Shame as the Emotional Response to Threat to the Social
Self: Implications for Behavior, Physiology, and Health, 27 CONSCIOUSNESS AND COGNITION
153, 154 (2008) (discussing studies regarding the link between shame and social status); Paul
24
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
The behavioral consequences of guilt and shame also differ. Guilt drives
people to engage in “prosocial behaviors” that try to repair the wrongs. 144 Shame
typically encourages people to hide in order to preserve their social standing, though
people may act in the face of shame with “reparative and conciliatory behavior” to
avoid an unwanted lower social status or to escape stigmatization. 145 Indeed, stigma
can strongly influence feelings of shame, particularly depending on what culture
values are marked as worthy of stigmatizing others for their nonconformity. 146 The
shame associated with stigmatization may provoke anger, which may prompt people
to act to eliminate present and future feelings of shame. 147
Thus, both guilt and shame may elicit “other-oriented” behaviors whereby a
person engages with others.148 In the context of the criminal justice system, guilt and
shame are part of and products of punishment.149 Of importance to the consumer
Gilbert, Evolution, Social Roles, and the Differences in Shame and Guilt, 70 SOC. RESEARCH
1205, 1208 (2003) (“Shame relates to the competitive dynamics of life, linked to social standing
and personal reputations.”); LAZARUS, supra note 122 at 240-43 (distinguishing guilt and
shame). A person can experience shame privately; there is no need for an audience, real or
imagined. Humiliation is associated with public exposure. See Rodogno, supra note 141, at 433.
144
See Tracy & Robins, supra note 138, at 103 (discussing research regarding the
behavioral outcomes of guilt and shame); Gilbert, supra note 143, at 1206 (describing guilt as
“evolve[ing] from a care-giving and ‘avoiding doing harm to others’ system”).
145
Teroni & Deonna, supra note 139, at 735. See also Gilbert, supra note 143, at 1209,
1212 (discussing shame, noting that people will “compet[e] to avoid unwanted low rank,” and
linking the “pathologies of shame and stigma”); LAZARUS, supra note 122, at 243-44
(distinguishing the “action tendencies” of guilt and shame and noting that “though circumstances
might well modify this, shame makes us want to hide.”).
146
See Gilbert, supra note 143, at 1215-19 (discussing how, to the extent that “social roles
are key to the dynamics of shame,” shame and stigma are linked with cultural values). See
generally ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY
(1963) (linking stigma, social identity, personal identity, and group alignment).
147
See Gilbert, supra note 143, at 1225 (“Shaming people can lead to various unhelpful
defensive emotions.”); James Gilligan, Shame, Guilt, and Violence, 70 SOC. RESEARCH 1149,
1149-52, 1160 (2003) (overviewing how prisoners linked violent behavior with feeling
disrespected to the point of feeling “dead inside” and noting that researchers often provoke anger
in experiments by insulting people).
148
Teroni & Deonna, supra note 139, at 735-36 (distinguishing the action tendencies of
guilt and shame); see also June Price Tangney, et al., Moral Emotions and Moral Behavior, 58
ANN. REV. PSYCHOL. 345, 355 (2007) (noting that research shows guilt motivates “individuals to
accept responsibility and take reparative action,” while “research has linked shame with a range
of illegal, risky, or otherwise problematic behaviors”).
149
See, e.g., Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism
and the Implications for the Alternative Sanctions Debate, 54 VAND. L. REV. 2157, 2231 (2001)
(linking punishment and contrition); Stephen P. Garvey, Can Shaming Punishments Educate?, 65
U. CHI. L. REV. 773, 784 (1998) (viewing punishments as “set[ting] in motion the moral
sequence of perception of wrongdoing, guilt, and repentance”); M ARTHA C. NUSSBAUM, HIDING
FROM HUMANITY: DISGUST, SHAME, AND THE LAW 3-4 (2006) (discussing shaming penalties);
ANTONY DUFF, PUNISHMENT, COMMUNICATION AND COMMUNITY 108 (2001) (theorizing how
punishment can induce repentance, self-reform, and reconciliation).
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
25
bankruptcy system, as considered in the next Part, because debtors are the parties
who initiate bankruptcy proceedings, feelings of guilt and shame about what their
overindebtedness communicates about their prior actions and themselves generally
may prompt people to file for bankruptcy.
3. Purging Disgust
Disgust also creates a desire to change or withdraw from a situation or
person.150 Disgust arises when people confront something revolting. 151 Something or
someone disgusting must be avoided to prevent contamination, infection, or
pollution.152 Though the “core” emotion of disgust relates to food and taste, disgust
also is a “moral” emotion.153 People may find others (or themselves) disgusting if
they violate a social or moral code; this type of disgust is aptly referred to as
“sociomoral” disgust.154
Given its general orientation towards other objects and people, disgust is
categorized as a “other-condemning,” rather than a “self-condemning” emotion, such
as shame.155 Nonetheless, people can find themselves disgusting, and experience the
associated urge to purge themselves of what they find reviling to “reestablish
dignity.”156 Disgust and shame thus may follow hand-in-hand: shame is a response to
other’s disapproval, a disapproval which may be grounded in disgust, which itself
creates social (and moral) inequality.157 Importantly, people’s reaction to the
inequality rooted in disgust is to try to distance themselves from that which they find
noxious, including if it is within themselves. 158 This contrasts with people’s principal
reaction to shame, which drives them to withdraw. 159
See Lerner, supra note 128, at 808-09 (categorizing disgust as an emotion that shapes
decision making through goal activation).
151
See LAZARUS, supra note 122, at 259-60 (discussing disgust).
152
See WILLIAM IAN MILLER, THE ANATOMY OF DISGUST 1-2 (1997) (discussing the
action-behavior elicited by disgust); LAZARUS, supra note 122, at 262 (noting that disgust elicits
the impulse to purge or avoid contact with an offensive object).
153
See Jonathan Haidt, The Moral Emotions, in HANDBOOK OF AFFECTIVE SCIENCES __
(R. J. Davidson, et al., eds., 2003) (“Moral emotions are the emotions that respond to moral
violations, or that motivate moral behavior.”); MILLER, supra note 152, at 1-2 (discussing how
“disgust start with . . . the rejection of food,” but how disgust “is a moral and social sentiment”).
154
Haidt, supra note 153, at __ (categorizing emotions).
155
Id. at __; supra note 138 and accompanying text.
156
MILLER, supra note 152, at 34 (including disgust “in the syndrome of self-loathing”).
157
See Tangney et al., supra note 155, at 353 (linking shame and feeling disgust “for a
bad, defective self”); id. at 34-35 (noting that “[d]isgust works first and if it fails shame will be
the consequence,” and linking “sociomoral” disgust and social inequality).
158
See Lerner, supra note 128, at 809 (noting that studies show that disgust makes people
more likely to choose to switch to something unknown rather than keep something disgusting).
159
See MILLER, supra note 152, at 34 (“In disgust, we wish to have the offensive thing
disappear by the removal of either ourselves or it; in shame we simply want to disappear.”);
supra note 145 and accompanying text.
150
26
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
Disgust most often is cited as a reason to make something illegal, such as
necrophilia and human cloning, or as an aggravating factor in something already
illegal, such as first-degree murder.160 But like guilt and shame, because individuals
facing seemingly insurmountable debts may revile at their overindebtedness, their
use of the consumer bankruptcy system may stem from disgust and its attendant urge
to purge the social offense. How disgust and other negative emotions may affect
when people take the legal action of filing for bankruptcy is considered in the next
Part, which constructs the theory of the expressive power of bankruptcy.
IV. THE EXPRESSIVE POWER OF BANKRUPTCY
A. Theory
Every year, hundreds of thousands, sometimes millions, of consumers file for
bankruptcy.161 Their precarious financial situations undoubtedly prompt them to
consider using the bankruptcy system to wipe the slate (mostly) clean of debts and
gain a fresh start.162 The economic benefits of this financial “reset” inform the main
theories for providing consumers a discharge. 163 For these benefits to accrue,
however, the laws effectuating the bankruptcy system’s purposes should align with
how people actually use the system. Do the people that the law assumes are filing for
bankruptcy actually file? Do the people who file for bankruptcy decide to file at the
time that the law anticipates that they consider filing? What do the people who file
think that they will gain, financially or otherwise, from the bankruptcy process?
Prior research, some of which was introduced in connection with the
description of current bankruptcy laws, 164 answers the first question. Research
suggests that the answer largely is no. The means test written into the Bankruptcy
Code by BAPCPA presumes that people generally will file for bankruptcy
strategically after racking up debts and when it makes most financial sense to file. 165
But, as noted, most people who decide to file report struggling for years to pay back
their debts before they file,166 years during which they have transitioned from owing
burdensome, yet probably manageable debts to a state of stressful overindebtedness.
The research that suggests that people do not file strategically paints a poignant
picture of the overindebtedness experienced by those who decide to file. This picture
See Haidt, supra note 153, at __ (“By ostracizing those who trigger moral disgust,
people in a society set up a reward and punishment structure that acts as a strong deterrent to
culturally inappropriate behaviors.”); Dan M. Kahan, The Anatomy of Disgust in Criminal Law,
96 Mich. L. Rev. 1621, 1639-43 (1998) (linking Miller’s insights in The Anatomy of Disgust to
punishment); NUSSBAUM, supra note 149, at 3-4 (situating disgust’s influence on law).
161
See supra note 2.
162
Not all debts are dischargeable in bankruptcy. 11 U.S.C. § 523.
163
See supra Part II.A.
164
See supra Part II.C.
165
See supra notes 63-65 and accompanying text.
166
See supra note 10.
160
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
27
provides a valuable backdrop for exploring why people decide to file at a particular
time during their journeys into severe overindebtedness. The relative amounts of
debtors’ income, debts, and assets also support their reports of long-term struggling,
and suggest that most debtors could have filed much sooner and still benefitted from
the discharge.167 Based on recent data, by the time that consumers file for
bankruptcy, they owe their creditors, on median, 3.3 times their yearly income,
meaning that it would take them three years and four months to pay back their
creditors if they put all their income toward debt payments. 168 They also have owe
$25,000 more to their creditors than their assets are worth. 169 This finding aligns with
research showing that almost all debtors are judgment proof, meaning that state law
exempts their equity in all their assets, and their creditors only can look for payment
to assets in which the debtor has granted creditors security interests. 170 As such, these
debtor’s unsecured creditors effectively cannot collect on the delinquent debts unless
the debtor agrees to pay or the creditors receive a garnishment order from a court. 171
Unless and until the creditor takes the debtor to court, these creditors may dun their
debtors with phone calls, but the debtors simply can say that they are unable to pay.
What then makes people think about filing for bankruptcy at a particular point
during their protracted struggles with overindebtedness? Most people who file for
bankruptcy almost necessarily reached the point of being unable to pay back their
debts absent a miracle long before they file. Without doubt, creditors’ legal actions,
such as foreclosing on the family home or garnishing wages, drive the timing of
some people’s bankruptcy filings.172 But such creditor actions can only explain why
a portion of consumer bankruptcy filings take place when they do. 173 Which means
that something besides creditors’ use of state law must prompt people to take the
initial step of deciding to use bankruptcy to cope with their overindebtedness. 174
The discharge only is beneficial if an individual or family has sufficient income to meet
expenses going forward. If not, they will sink back into overindebtedness. See Porter & Thorne,
supra note 33, at __ (reporting that one-year post-discharge 25% of debtors who had filed under
chapter 7 were struggling to pay debts because they had too little income in relation to expenses).
168
See Lawless et al., supra note 10, at 371-72 (reporting median debt-to-income ratios).
169
See id. at 371, figure 9 (reporting median net worth).
170
See supra notes 50-52 and accompanying text.
171
See Mann & Porter, supra note 9, at 309-10 (discussing garnishment).
172
See Mann & Porter, supra note 9, at 307-08 (interviewing bankruptcy professionals and
finding that most “emergency” bankruptcy filings were prompted to avert foreclosure); Lefgren
& McIntyre, supra note 68, at 368 (finding that “cross-state differences in bankruptcy rates
primarily reflect differences in garnishment restrictions,” among a few other factors).
173
See Mann & Porter, supra note 9, at 307-09 (noting that “[n]one of the bankruptcy
professionals to whom we spoke regarded emergency petitions as a major part of their practice,”
and that creditors “face considerable difficulty in using litigation to recover from consumers”).
174
As noted, the question that this Article seeks to answer is distinct from the drivers of
the timing of people’s bankruptcy filings once they have decided that they will file for
bankruptcy, such as debtors’ ability to pay fees. See supra note 11. This Article’s question is why
do people think bankruptcy will be useful. See supra note 5.
167
28
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
Drawing from other legal contexts, the message that accompanies filing for
bankruptcy and the mechanics of the bankruptcy process have the potential to benefit
people. Moreover, people should consider filing for bankruptcy to access those
benefits. Part of what drives people to act is that they perceive their actions as
carrying meanings, some of which allow them to assert themselves within society. 175
Deciding to file for bankruptcy, and then filing, is active. Even finding and making
an appointment with a bankruptcy attorney requires overindebted individuals to take
their heads out of the sand and confront their depressing financial problems. 176
1. The Road to Bankruptcy
To determine what social meanings people anticipate that using the bankruptcy
process will provide, first consider what overindebted individuals, in general, may
think and feel about their financial problems. Overindebtedness transcends socioeconomic class,177 but people who for much of their lives identified as middle class
are the debtors who ultimately file for bankruptcy. 178 People also experience
overindebtedness itself as a distinct “lower” and stigmatized social class. 179
Illustrating the stigma and shame of being in debt beyond ability to repay, research
links overindebtedness with a variety of serious health issues, including depression,
severe anxiety, ulcers, and heart problems. 180 Overindebtedness further hampers
people’s ability to lift themselves back into the “higher” middle socio-economic
class which previously, solidly included them. 181 For the people who ultimately file
See supra notes 77 and 78 and accompanying text.
See Mann & Porter, supra note 9, at 313–14 (describing the “ostrich defense,” whereby
people avoid debt collectors’ calls and otherwise try to evade thinking about their financial
situations); Thorne & Anderson, supra note 8, at 86 (noting how people avoided debt collectors).
177
See Lupica, supra note 35, at 587 (“The tension between the desire and resistance to
consume is felt by consumers at all levels of the class spectrum.”).
178
See supra note 68.
179
See supra note 7.
180
See Neal Gabler, The Secret Shame of Middle-Class Americans, THE ATLANTIC (May
2016), available at http://www.theatlantic.com/magazine/archive/2016/05/my-secretshame/476415/ (noting the health consequences of prolonged financial frailty); Chris Fitch, et al.,
The Relationship Between Personal Debt and Mental Health: A Systematic Review, 16 MENTAL
HEALTH REV. J. 153, 153 (2011) (surveying 50 studies from the medical, business, legal, and
social science fields and finding that they suggest that indebtedness contributes to mental health
problems); Lupica, supra note 35, at 607 n.276 (discussing studies about the stress of debt and
health consequences); Patricia Drentea, Age, Debt, and Anxiety, 41 J. HEALTH & SOC. BEHAV.
437, 440, 445-48 (2000) (surveying Ohioans to measure debt and anxiety and finding that
amount of credit card debt and being in default accurately predicted anxiety).
181
See Anuj K. Shah, et al., Some Consequences of Having Too Little, 338 SCIENCE 682,
684-85 (2012) (discussing how not having enough money to pay for basic expenses and debts
can lead people to borrow even more); Lupica, supra note 35, at 563 (“[O]verindebtedness
reinforces existing class divisions and thwarts class mobility”); Katherine Porter, The Damage of
Debt, 69 WASH. & LEE. L. REV. 979, 1006 (2012) (“Other important endowments that may be
175
176
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
29
for bankruptcy, their overindebtedness not only places them in a distinct social class,
but also in a social class associated with a severe loss of social status. 182
To appreciate the perceived severity of this loss of social status, consider the
predominate factors that lead people who file bankruptcy to become overindebted in
the first place: job loss, divorce, and severe health problems. 183 In all likelihood,
most people do not consider any of these causes of overindebtedness to be within
their control. No one wants to get sick. 184 Despite nationwide divorce rates,
(presumably almost) no one enters into a marriage planning to divorce. 185 And
though people’s behavior and skills can lead to job loss, shifts in the economy and
declining average duration of employment with a particular employer have become
the principal drivers of job loss.186
Rather than stemming from their own failures, those people who turn to
bankruptcy predominately have accumulated debts because of circumstances beyond
their control, at least from their viewpoints. And though have tried for a long time to
pay back those debts, they have not even begun to regain their financial footing.
Instead, they have become trapped in the stigmatized and shameful state of
overindebtedness, which may harm their self-esteem. 187 As one self-identified
altered as a result of overindebtedness are education, job training, and health.”). To the extent
that these individuals slip out of the mainstream banking and credit markets, they may encounter
even more difficulties in regaining their middle class status simply because they now pay more
for most financial services. See MEHRSA BARADARAN, HOW THE OTHER HALF BANKS 9-10
(2015) (noting how lack of access to financial services “makes it even more difficult to escape
poverty”); MICHAEL S. BARR, NO SLACK: THE FINANCIAL LIVES OF LOW-INCOME AMERICANS
1-2 (2012) (overviewing the issues faced by people who lack financial “slack”).
182
See Teresa A. Sullivan, Debt and the Simulation of Social Class, in A DEBTOR WORLD:
INTERDISCIPLINARY PERSPECTIVES ON DEBT 36, 48 (Ralph Brubaker et al., eds., 2012)
(highlighting the “loss of social status, sometimes in severe ways” associated with debt).
183
See supra note 66 and accompanying text.
184
Putting aside people suffering from Münchausen syndrome, which itself is a mental
disease. See Richard Gunderman, When People Seem to Want to be Sick, THE ATLANTIC (2003),
available at http://www.theatlantic.com/health/archive/2013/06/when-people-seem-to-want-tobe-sick/276745/ (last visited May 6, 2016).
185
For instance, the divorce rate for first marriages in America is between 41% and 49%.
See Rose M. Kreider & Renee Ellis, Number, Timing, and Duration of Marriages and Divorces:
2009, U.S. CENSUS BUREAU 14 (2011), available at http://www.census.gov/prod/2011pubs/p70125.pdf (discussing divorces statistics from first marriages based on the race of the couple).
186
See Jacob S. Hacker, The Middle Class at Risk, in BROKE: HOW DEBT BANKRUPTS THE
MIDDLE CLASS 218, 218, 223-25 (Katherine Porter, ed., 2012) (noting that changes in
employment began prior to the recession, and overviewing the growth of “income instability”
among American households); Jean Braucher, Theories of Overindebtedness: Interaction of
Structure and Culture, 7 THEORETICAL INQUIRIES L. 323, 332 (2006) (noting that fewer unions
and more competitive labor markets have increased job insecurity); J ACOB S. HACKER, THE
GREAT RISK SHIFT: THE NEW ECONOMIC INSECURITY AND THE DECLINE OF THE AMERICAN
DREAM ___ (2008) (detailing changes in employment markets).
187
See, e.g., Porter, Damage of Debt, supra note 181, at 1011-12 (positing a link between
debt burdens and self-esteem); Hugh F. Daly III, et al., Into the Red to Stay in the Pink: The
30
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
“financially impotent” middle-class writer explained: “To struggle financially is a
source of shame, a daily humiliation—even a form of social suicide. Silence is the
only protection.”188
But overindebtedness caused by events and circumstances out of a person’s
control likely feels appalling, though not necessarily shameful, particularly to the
point of lowering self-esteem. Research shows that when people blame themselves
for the negative outcomes in their lives, they are more likely experience low selfesteem, but when they attribute failures to others and outside forces such as
prejudice, they can protect their self-esteem. 189 When that same “financially
impotent” writer realized how many other members of the middle-class face debt
problems, he began talking with others about his “financial travails,” which went
against his former “desperate need to mask” his financial problems. 190
By the time people consider filing for bankruptcy, they may experience
lingering guilt and a bit of shame about the financials decisions they made when
faced with unanticipated expenses, even if they logically understand that their
overindebtedness largely was out of their control. 191 But they have taken their heads
out of the sand and considered what is taking place around them. In so considering,
they may tend toward disgust. They may revile at their overindebtedness,
experiencing it as something from which they must distance themselves. 192
Anger also may play an increasing role in people’s feelings about their debt
problems as time passes. At some point during their journey into overindebtedness,
their creditors and the debt collectors to whom their creditor sold their accounts
began hounding them for payment.193 Debtors have described creditors’ dunning as
very stressful and as causing marital strain. 194 In particular, consumers complain
Hidden Cost of Being Uninsured, 12 HEALTH MATRIX 39, 43 (2002) (discussing the emotional
and social aspects of significant medical debt and quoting one interviewee confessing, “I am
ashamed to take my kids to the physician because I think they know I owe thirty-five dollars”);
Terrell A. Hayes, Stigmatizing Indebtedness: Implications for Labeling Theory, 23 SYMBOLIC
INTERACTION 29, 29, 33 (2000) (interviewing participants in Debtors’ Anonymous and
discussing labeling, stigma, and shame connected with overindebtedness); Jennifer Crocker &
Hart Blanton, Social Inequality and Self-Esteem: The Moderating Effects of Social Comparison,
Legitimacy, and Contingencies of Self-Esteem, in THE PSYCHOLOGY OF THE SOCIAL SELF 171,
172-73 (Tom R. Tyler et al., eds., 1999) (linking social stigma and self-esteem).
188
Gabler, supra note 180.
189
See Crocker & Blanton, supra note 187, at 177-79 (synthesizing research regarding
attributions of disadvantage); KATHERINE S. NEWMAN, NO SHAME IN MY GAME: THE WORKING
POOR IN THE INNER CITY (1999) (interviewing “working poor” in New York City).
190
Gabler, supra note 180.
191
See supra Part II.B.3 (overviewing and distinguishing guilt and shame).
192
See supra Part II.C.3 (overviewing disgust).
193
See Mann & Porter, supra note 9, at 306-07 (discussing dunning).
194
See Porter, Pretend Solution, supra note 53, at 142 (reporting that 84% of interviewed
debtors said they were stressed before filing for bankruptcy and attributing that stress in part to
dunning by debt collectors); Mann & Porter, supra note 9, at 316 (noting that people who have
filed for bankruptcy have described creditors as “incredibly rule and very difficult to deal with”).
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
31
about the frequency of collection calls, that debt collectors call third-parties, such as
family and friends, and that collectors call their place of employment. 195
Beyond dunning, debt collectors are notorious for violating federal and state
laws covering the collection of debts, such as the Fair Debt Collection Practices
Act,196 including threating people with jail and with attempting to collect their child
support or employment benefits, all of which is illegal. 197 One of debt collectors’
favorite acts is trying to collect time-barred debts—debts on which the statute of
limitations has run—as evidenced by the mechanics of the debt buying market 198 and
debt collectors’ own discussions of their tactics. 199 Apart from wanting the calls to
stop, such dunning tactics understandably may elicit anger from consumers. 200
Debt collection also may add to people’s guilt. Each call is an instance in
which people are unable to live up to their obligations. Regardless of how poorly
debt collectors treat them, people generally want to pay. 201 As one debt collector
observed: “It is a big misconception that people don’t way to pay. When the debtors
do the screaming, and the ducking out, and the complaining, it’s just them lashing
out because they can’t pay. . . . If you called people up and they had ten grand in the
bank, they would pay instantly.”202 Being unable to pay is an act of failure, an act
that transgresses the important social norm of paying back one’s debts. 203 The
lashing out and complaining that the debt collector mentioned could arise from
people’s guilt and disgust when faced with the inability to repay their debts. 204
Finally, people may become disillusioned with their creditors and the consumer
credit industry in general. In the wake of the 2008 financial crisis, calls for reforms
aimed at curbing devious behavior by banks and other financial institutions
increased.205 Along with these calls, popular narratives about who is to blame for
See Fair Debt Collection Practices Act: CFPB Annual Report 2016, CONSUMER
FINANCIAL PROTECTION BUREAU 17-19 (2016), available at
http://files.consumerfinance.gov/f/201603_cfpb-fair-debt-collection-practices-act.pdf (noting that
18% of collection complaints received by the Consumer Financial Protection Bureau (CFPB)
involve debt collectors’ communication tactics).
196
15 U.S.C. § 1692 et seq.
197
See Fair Debt Collection Practices Act: CFPB Annual Report 2016, supra note 195, at
20 (discussing common collection complaints received by the CFPB).
198
See Dalie Jimenez, Dirty Debts Sold Dirt Cheap, 52 HARV. J. LEG. 41, 45 (2015)
(discussing how it is difficult for consumers to know they are paying active debts).
199
See generally JAKE HALPERN, BAD PAPER: CHASING DEBT FROM WALL STREET TO THE
UNDERWORLD (2014) (interviewing debt collectors).
200
See supra Part II.C.A (defining and discussing anger).
201
See Sousa, Bankruptcy Stigma, supra note 8, at 464-68 (quoting from interviewers with
individuals who had filed bankruptcy about wanting to pay back their debts); Thorne &
Anderson, supra note 8, at 83 (discussing debtors’ tactics to attempt to pay back their debts).
202
HALPERN, supra note 198, at 95-96 (quoting a debt collector and further noting that
most collectors heeded this observation and strove to empathize and thereby “marry the debtor”).
203
See supra note 139 for the definition of guilt.
204
See supra note 199.
205
See Charles Eisenstein, “Don’t Owe. Won’t Pay.” Everything You’ve Been Told About
195
32
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
individuals’ financial failures shifted. Rather than attribute overindebtedness solely
to consumers’ actions and character flaws, financial institutions increasingly bore
negative labels, such as peddlers of “financial instruments of mass destruction,” as
Warren Buffet termed the derivatives that contributed in large part to the financial
crisis and which still play a sizable role in the credit markets. 206
In reaction, instead of retreating into their own shame, people may turn
outward toward their creditors, reacting with anger and resolve to refute
“illegitimate” debts.207 Crucially, the belief that some debts are less legitimate than
others dovetails with people’s perceptions that debt is ubiquitous to the point of
being systemic and inescapable. They consequently may view their own crushing
debts as even further out of their control, again pushing against feelings of shame
and toward feelings of anger and disgust. In contrast to the disgust that accompanies
their inability to pay back their debts, people would feel this disgust as directed
toward their creditors and the economic system, not themselves. 208 This disgust thus
would urge people to distance themselves from their creditors.
Such feelings about the economic system’s role in overindebtedness are not
unique to the 2008 financial crisis. History has often pitted consumer debtors against
their creditors.209 These conflicts also are described as part of “class formation, with
an indebted lower class and a more powerful creditor higher class.” 210 When the
debtor class gains political power, the power of the creditor class diminishes, and
substantive law may shift away from favoring creditors. 211 Along with this shift in
power and law, so too many people feel emboldened to use law to their advantage,
whether that be the evolving substantive law or the procedures of the legal system. 212
2. Bankruptcy as a Statement of Social Worth
With this background, now consider what social benefits overindebted
individuals may think that filing for bankruptcy will bring them. Initially, recall that
Debt is Wrong, YES! MAGAZINE (Aug. 20, 2015), available at
http://www.yesmagazine.org/issues/the-debt-issue/don-t-owe-won-t-pay-charles-eisenstein-debt20150820 (discussing reactions to the 2008 financial crisis).
206
Berkshire Hathaway Inc. 2002 Annual Report 15 (2003).
207
See Eisenstein, supra note 205 (discussing the concept of “illegitimate” debts).
208
See supra note 192 and accompanying text.
209
See Sullivan, supra note 182, at 48 (noting the “long history” of debtor/creditor
conflicts); Braucher, Theories of Overindebtedness, supra note 186, at 339 (noting that “the
1960s marked a huge shift in attitudes toward debt problems,” which resulted in higher tolerance
for taking on debts and for people who encountered problems with their debts).
210
Sullivan, supra note 182, at 48.
211
Id.
212
William Whitford has suggested that bankruptcy may serve as a “vehicle for delivering
the elusive goal of consumer justice” when other consumer protection laws fall short. William C.
Whitford, The Ideal of Individualized Justice: Consumer Bankruptcy as Consumer Protection,
and Consumer Protection in Consumer Bankruptcy, 68 AM. BANKR. L.J. 397, 401 (1994).
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
33
chapter 7 and chapter 13 are quite distinct substantively. Debtors choose to file under
chapter 7 or chapter 13 through a combination of financial and legal culture
factors.213 But it is what these two proceedings have in common that are most
important to people’s judgments of what using the bankruptcy system will allow
them convey to their communities and society.
Regardless of which chapter debtors file under, through their petitions and
accompanying schedules, they publicly declare that they cannot pay back their debts,
that they are unable to live up to their social obligations, and that their financial
predicament, simply put, is hopeless. Similarly, regardless of which chapter they file
under, the debtors will sit before bankruptcy trustees, who will place them under
oath, and ask them series of questions about their lives that often go to the core of
their value as members of society.214 At these hearings, debtors will have the
opportunity to tell the trustee, a member or representative of an “outgroup,” about
their road to overindebtedness and why they need the “fresh start” of bankruptcy. 215
Creditors also have the right to question the debtor, although creditors rarely
attend these hearings. Even if creditors do not appear, these hearings are the debtors’
chance to tell their stories of their struggles with debt, and to assert and confirm their
social status, correct “ingroup,” and position in society. Debtors can explain how
they believe they have failed, which at this point in their struggles with debt likely is
the only way they can deal with their guilt. Filing for bankruptcy may be the last
viable “prosocial behavior” for overindebted individuals to apologize for their
financial failures and to try to repair what they perceive as social failures. 216
Likewise, through telling their stories and explaining how their situations were
out of their control and not their fault, debtors can distance themselves from the
disgust they may feel. These stories also can allow debtors to vent anger stemming
from their interactions with creditors and any lingering shame caused by the stigma
of overindebtedness. That debtors may continue to feel shame about their financial
situations does not mean that they never will want to distance themselves from that
shame.217 Publicly telling their stories may allow people to overcome the shame and
feel that they are taking control of their financial futures. 218 Consistent with
empirical research evaluating why people use the criminal and civil justice systems,
See supra Parts II.B and C for an overview of chapter 7 and 13 proceedings.
See supra notes 53-56, 59, and accompanying text for a discussion of 341 hearings.
215
See supra Part III.A for a discussion of criminal punishment and social groups.
216
See supra note 145 and accompanying text.
217
See Debra Patterson & Rebecca Campbell, Why Rape Survivors Participate in the
Criminal Justice System, 28 J. COMM. PSYCHOL. 191, 191 (2010) (discussing what makes some
rape survivors withdraw from criminal investigations versus what makes other survivors continue
to participate after reporting their assaults); supra note 147 and accompanying text.
218
That people who have filed for bankruptcy report that they are very careful with credit
post-discharge may lend support for this observation. See Katherine Porter, Life After Debt:
Understanding the Credit Restraint of Bankrupt Debtors, 18 AM. BANKR. INST. L. REV. 1, 2
(2010) (reporting that the pattern of debtors’ post-bankruptcy credit usage reflects self-restraint).
213
214
34
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
this opportunity to assert their social identities, in part, likely motivates people to file
for bankruptcy.
If people believe that they have a voice during these hearings, they are more
likely to experience the bankruptcy proceeding as fair. 219 Debtors’ assessment of
these hearings thus influences the perceived justice of bankruptcy. Because most
debtors never appear before the bankruptcy judge, these hearings take on added
significance. Debtors’ conversations with trustees establish their trust in the
authorities (trustees and judges) overseeing their bankruptcy cases. Debtors’ trust in
these authorities influences whether they feel respected and whether they think that
the trustee and the judge will give their financial failure sincere consideration based
on the facts they have presented. If they so believe, debtors also likely will accept the
ultimate outcomes of their bankruptcy cases.
The outcome of the cases likely is of equal or greater importance to people who
file for bankruptcy because of what the outcome communicates about their social
worth and standing. Discharge in chapter 7 is a release from overindebtedness.
Likewise, plan confirmation in chapter 13 serves as a release from overindebtedness,
even if the eventual discharge from debt will occur years in the future. 220
In the context of bankruptcy, the discharge or confirmation order is akin to
criminal punishment or a verdict in favor of the plaintiff in a civil action. The order
acknowledges that the debtor is worthy of forgiveness and relief from the stress and
stigma of crushing debts.221 It also represents the opportunity to reenter the economy
and to have enough funds and mental energy to participate in social life, as the
debtor did before encountering the unanticipated events that led to unmanageable
debts. Finally, those debtors frustrated with their creditors’ actions or the credit
industry in general may take the discharge or confirmation order as condemning
creditors’ actions. Though debtors traditionally are the “offenders” who society
forces creditors to forgive,222 the procedural posture of bankruptcy cases places
debtors in the position of bringing the legal action, 223 and thereby requires debtors to
take the initial step to deal with their financial failures.
See supra Part III.B for a discussion how people assess the fairness of proceedings.
Even though a debtor does not receive the discharge until completion of the repayment
plan, confirmation of the plan is a crucial step in the chapter 13 proceeding; at that point, the
debtor begins living according to a budget and the accumulation of additional debt stops.
221
This may be thought of as the other side of the moral imperative to grant individuals
relief from crushing debt that some have posited as a normative reason for allowing discharge.
See supra notes 37-43 and accompanying text. It is how the debtor experiences this moral
imperative that is crucial to this Article’s theory of the expressive power of bankruptcy.
222
Recall that before modern bankruptcy, debtors were criminally prosecuted for their
inability to pay their creditors. See supra notes 24-28 and accompanying text.
223
The Bankruptcy Code provides for involuntary bankruptcy petitions initiated by a
debtor’s creditors. Involuntary cases are so infrequent that the Administrative Office of the
United States Courts stopped tracking their incidence years ago. See Lawless & Warren, supra
note 9, at 749 n.11 (noting the infrequency of involuntary petitions).
219
220
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
35
An overindebted individual, in short, may consider the bankruptcy court’s
order as the public statement that she does not belong in the “lower” social group of
people marred by debt and hounded by debt collectors. Instead, her correct “ingroup”
is the more prestigious group to which she previously belonged. And as with
criminal and civil proceedings, if the bankruptcy judge denies the debtor a discharge
or if the debtor fails to complete her chapter 13 plans, she may decide that her true
place within society is in the less prestigious social class of the chronically
indebted.224 Regardless, bankruptcy allows people to assert their place within
society, through their petition and schedules and the meeting with the trustee, and
then assess whether their community and society agrees about their social worth.
Importantly, debtors do not necessarily need to appear before the bankruptcy
judge to view the bankruptcy process as a referendum on their social worth. Debtors
seek the social meaning that accompanies release from the burden of
overindebtedness, separate and apart from the financial benefits of the discharge.
Most debtors likely view bankruptcy judges as belonging to social outgroups.
Generalizing from procedural justice empirical research, given that the bankruptcy
judge belongs to an important outgroup, and if a debtor perceives the bankruptcy
process as fair, the judge’s order not only will communicate society’s view of the
debtor’s social status, but also will confirm and enhance the debtor’s self-esteem. 225
Ultimately, it is this combination of a public hearing and a fair proceeding that
people who turn to the bankruptcy system may crave to assert and establish their
“positive social identity” in the face of unmanageable debts. 226
B. Implications
The theory of the expressive power of bankruptcy advanced above is
descriptive, but in describing the emotional and social impetuses that encourage
overindebted individuals to file for bankruptcy at a particular time, the theory also
has normative implications for the consumer bankruptcy system. As an initial matter,
the description alone is key to advancing our understanding of how the consumer
bankruptcy system works in practice, not merely in the minds of those who continue
to condemn consumer debtors as overindulgent and prone to using bankruptcy’s
discharge to shirk their promises. The description provides a missing part of the
Some people file for bankruptcy multiple times. See Sara Stenberg Greene, The Failed
Reform: Congressional Crackdown on Repeat Chapter 13 Bankruptcy Filers, 89 AM. BANKR.
L.J. 241, 245-47 (2015) (overviewing data regarding repeat filers). Some of these debtors may
file bankruptcy repeatedly as a strategic, financial matter. Some may file twice because of an
issue with their first case, such as a missed deadline. See id. at 252-57 (noting that most debtors
who file twice under chapter 13 do so because of a procedural misstep during their first chapter
13 case). And some debtors may file more than once because they do not agree with the outcome
of their prior case or cases—that is, they file again to reassert their social worth one more time.
225
See supra note 118 and accompanying text.
226
Bilz, supra note 13, at 1086
224
36
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
narrative supporting decades of empirical research showing that people file after they
experience unanticipated strains on their finances from job loss, divorce, and serious
health issues, and only after they have struggled for years to years to pay back debts
they incurred in reactions to those events.227
Many people experience these unexpected financial shocks, many struggle with
the resulting debts, many do not have sufficient savings or family and friends to turn
to for help,228 but not all decide to file for bankruptcy. Some overindebted
individuals may never come to understand their financial problems as legal problems
addressable by bankruptcy. 229 Some may essentially default to dealing with their
creditors on their own, which may include resigning themselves to their fate and
never taking their heads out of the sand. 230 But for people who want to take concrete
action and know about bankruptcy, what they think they will gain from the process
of bankruptcy, whereby they can tell their stories and obtain a judgment about their
overindebtedness and place in society, may encourage them to decide to file.
Importantly, people need to be ready to take action to address the financial,
emotional, and social aspects of their overindebtedness, which in part explains the
timing of consumer bankruptcy filings. It is this understanding of how people
experience their overindebtedness as threat to their social status that has remained
absent from discussions of why people for bankruptcy at the time they do.
This understanding also provides a previously unexplored reason why most of
the people who file for bankruptcy identify as middle class, even if they are not
making a middle class income at the time that they file. 231 Analogizing to other legal
proceedings, the bankruptcy process and resulting discharge or plan confirmation
order is a referendum on the debtor’s social status. That people experience their
overindebtedness as a distinct and lower social class suggests that those who see
themselves as middle class despite their debt will be the individuals who will want to
use bankruptcy to reassert their correct social status when all other efforts to deal
with their financial problems fail. Though the ability to pay attorneys’ and filing fees
undoubtedly factors into who ultimately files for bankruptcy, 232 the idea and desire to
file to assess social worth and standing predominately will occur to overindebted
individuals of middle class origins. Those from lower socio-economic classes will
See supra Part II.C.
See Gabler, supra note 180 (overviewing studies finding that the majority of
households do not have enough savings to cover a month of expenses and cannot come up with
$2,000 in 30 days).
229
See Foohey, When Faith Falls Short, supra note 23, at 1324-26 (discussing naming,
blaming, claiming in the context of financial problems); supra note 5.
230
See Rebecca L. Sandefur, The Importance of Doing Nothing: Everyday Problems and
Responses of Inaction, in TRANSFORMING LIVES: LAW AND SOCIAL PROBLEMS 112, 123 (Pascoe
Pleasence et al. eds., 2007) (discussing why people often do not address their money problems).
231
See supra Part II.C.
232
See Mann & Porter, supra note 9, at 319-24 (investigating how the timing of tax
refunds and paychecks influence bankruptcy filing patterns).
227
228
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
37
have less to gain from the bankruptcy process, leaving individuals from middle class
backgrounds to file, as research confirms are the people who file for bankruptcy.
As a descriptive matter, finally, the theory that filing for bankruptcy, in part, is
an expressive act adds a new perspective to debates about the stigma of declaring
bankruptcy. For decades, scholars have debated whether bankruptcy’s stigma is
declining, particularly in light of rising consumer bankruptcy filing rates. 233 These
debates culminated with BAPCPA’s enactment, with the means test to some extent
representing Congress’s view that bankruptcy’s stigma had declined to the point that
a mechanical test was necessary to prevent people from abusing the discharge. 234 But
if filing for bankruptcy partly is an expressive act aimed at assessing and asserting
one’s place in society, debates about bankruptcy’s stigma miss the importance as
well as the timing of when stigma attaches to debts.
Instead of considering the supposed rise or fall of bankruptcy’s stigma to
explain increases and decreases in consumer bankruptcy filing rates, the more
appropriate stigma to consider is the stigma of overindebtedness. The shame, guilt,
and perhaps disgust that accompanies this stigma attaches long before people think
about bankruptcy. Crucially, the shame, guilt, disgust, and, in some instances, anger
springing from their overindebtedness become some of the triggers driving people to
think about filing for bankruptcy. The guiltier and more disgusted people feel about
their overindebtedness, the more they will turn to bankruptcy to deal with those
emotions. Given research showing that people view the outcomes and proceedings of
other parts of the legal system as a referendum on their social status, it would be
anomalous to find that people do not view the consumer bankruptcy system likewise.
That scholars previously have not linked expressive theories of law, procedural
justice, and emotions to consumer bankruptcy filings likely relates to bankruptcy’s
historical roots in criminal law,235 the unique procedural posture of debtors
simultaneously initiating bankruptcy cases while asking for forgiveness, 236 and the
primacy of debates about bankruptcy’s stigma to recent decades’ discussions about
changing consumer bankruptcy laws.
Thus, as some scholars have argued, bankruptcy’s stigma may have increased
during prior decades even though consumer bankruptcy filings also have
increased.237 But discussing bankruptcy’s stigma overlooks the importance of
people’s reactions to the underlying debts, the stigma of which may overshadow
even the rising stigma of filing for bankruptcy, and which may lead more people to
use the bankruptcy system to regain their place in society. 238 Relatedly, the stigma of
See Sousa, Bankruptcy Stigma, supra note 8, at 442-45 (overviewing this debate);
Sullivan et al., Less Stigma or More Financial Distress, supra note 8, at 233-35 (same).
234
See supra notes 62-65 and accompanying text.
235
See supra note 24 and accompanying text.
236
See supra notes 222 and 223 and accompanying text.
237
See Sullivan et al., Less Stigma or More Financial Distress, supra note 8, at 214-15.
238
More than two decades ago, one bankruptcy scholar suggested similarly. Robert A.
233
38
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
bankruptcy and the stigma of overindebtedness may influence how people approach
financial problems at different points in time. Overindebtedness’ stigma may compel
people to try to pay back debts by whatever means possible. Bankruptcy’s stigma
later may urge people to try to pay back debts rather than file for bankruptcy. By this
time, however, the emotions related to overindebtedness may counsel some people
that the best remaining action is to file for bankruptcy because repaying their debts is
untenable. If so, then, it is overindebtedness’ stigma that scholars and policymakers
should focus on when designing laws to assist people with inevitable debt problems.
Moreover, what the theory of the expressive power of bankruptcy suggests
about the place of stigma and shame in people’s decisions to file for bankruptcy has
normative implications for the consumer bankruptcy system. Basing access to
bankruptcy’s discharge on notions about the stigma of filing for bankruptcy
overlooks bankruptcy’s place in people’s struggles with overindebtedness. The
inability to pay back debts itself carries stigma, which likely is sufficient to inhibit
people from filing for bankruptcy until long after it makes financial sense to do so.
Rises in consumer bankruptcy filings rates may have much more to do with
increasing severe overindebtedness than changes in bankruptcy’s stigma, as
suggested by some scholars in connection with debates about bankruptcy’s stigma. 239
The theory of the expressive power of bankruptcy adds to these debates the
perspective that rises in consumer bankruptcy filing rates may signal that more
people would benefit psychologically and socially from accessing the bankruptcy
system, which would create a bigger boon to the economy than merely considering
the discharge’s economic effects. If people’s experiences with bankruptcy are
positive, they will be more likely to accept the outcomes and draw on the lessons
from their prior overindebtedness to try to remain able to pay new debts. 240 The
means test’s mechanical formula that constrains access thus may be even more
harmful than previously thought. 241 Likewise, that few consumer debtors appear
before bankruptcy judges during their proceedings may negatively impact
perceptions of the procedural justice of bankruptcy. If people file for bankruptcy, in
part, to determine their social standing, it is critical that they view the outcomes of
cases as fair and legitimate.
As with other theories of the expressive value of law, the normative question
is: to what extent should bankruptcy laws reflect how people actually use the legal
Hillman, Contract Excuse and Bankruptcy, 43 STAN. L. REV. 99, 124 (1990) (“The stigma
suffered by an individual bankrupt may be more than offset by her liberation from the shame of
being unable to honor her obligations and her renewed optimism and self-confidence upon
obtaining a fresh start.”).
239
See id. at 252-53 (noting that the finances of households have worsened over time).
240
Empirical studies of debtors’ post-bankruptcy experiences confirm that debtors try to
remain debt free and otherwise to prevent the need to turn to bankruptcy in the future. See Porter,
Bankrupt Profits, supra note 65, at 1391-96 (reporting that individuals receive dozens of credit
solicitations mere months after receiving the discharge, but eschewed taking on new credit).
241
See Lawless et al., supra note 10, at 353 (summarizing the means test’s harms).
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
39
system?242 The expressive aspects of filing for bankruptcy have remained absent
from conversations about bankruptcy laws. Consequently, the Bankruptcy Code fails
to consider the emotional and social aspects of people’s bankruptcy filings.
Short of altering consumer bankruptcy laws to reflect how people approach and
view filing for bankruptcy, parties within the bankruptcy system should consider
how their interactions with debtors may influence how people assess this part of the
legal system. Remaining cognizant of how debtors have arrived at the decision to file
for bankruptcy alone may enhance people’s experiences with bankruptcy, which will
ease people’s return to their communities and the credit economy. Attorneys are the
first authorities connected to the bankruptcy system that most people will meet.
Interviews with consumer debtor attorneys suggest that they are aware of the
emotional struggles that many of their clients undergo before they seek attorneys’
help.243 Yet the time and money demands of practicing in the area of consumer
bankruptcy may overshadow attorneys’ empathy for their clients’ emotional states. 244
This observation also calls into question the current structure of the consumer
bankruptcy system, which makes it relatively expensive for people to file. 245
Bankruptcy trustees and judges perhaps are the most important actors when it
comes to the expressive power of bankruptcy. Though trustees in particular have
been studied in the context of regional variations in how consumer bankruptcy
proceeds in practice,246 there has been relatively little discussion of how trustee
facilitate people’s journeys through bankruptcy. Debtors’ meeting with trustees are
the first and perhaps only opportunity that people will have to tell the stories of
overindebtedness. Trustees have the ability to conduct these hearings such that
people feel they have a voice, and should remain cognizant that consumer debtors
are experiencing what might be one of the most nerve-wracking, yet liberating events
in their lives.247
See supra note 20 and accompanying text.
See Mann & Porter, supra note 9, at 315-18 (discussing attorneys’ observations about
their debtor clients’ internal reckoning with their financial failure); Braucher, One Code, Many
Cultures, supra note 73, at 540-43 (overviewing attorneys’ observations about their clients’
“social concerns” about their inability to pay their debts and about filing for bankruptcy).
244
See Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report 33- , 109-10
(2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2132913 (reporting
attorneys’ reports about how much they charge for chapter 7 and chapter 13 cases and how long
they spend working on each case); Braucher, One Code, Many Cultures, supra note 73, at 543
(noting that “getting clients and getting paid are obsessions for consumer bankruptcy lawyers”).
245
See Mann & Porter, supra note 9, at 319-24 (discussing how the timing of consumer
bankruptcy filings are influenced by the costs of filing); Angela Littwin, The Affordability
Paradox: How Consumer Bankruptcy’s Greatest Weakness May Account for Its Surprising
Success, 52 WILLIAM & MARY L. REV. 1933, 1935 (2011) (noting how BAPCPA reignited a
debate about how bankruptcy is too expensive for many who might benefit from the discharge).
246
See generally Braucher, One Code, Many Cultures, supra note 73.
247
See supra notes 53-56 for a discussion of people’s responses to the 341 hearing.
242
243
40
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
V.
WHAT WE KNOW ABOUT THE EXPRESSIVE POWER OF BANKRUPTCY
Likewise, to the extent that debtors attend hearings in which they could take
part, debtors may want and expect to be heard by bankruptcy judges, and judges
should be mindful of how they can tailor proceedings to enhance the legitimacy of
their rulings in the minds of debtors. Debtors’ attorneys also should consider whether
they need to explain to clients why they need not attend court hearings. Indeed, it
was the frustration that I heard from debtors who I interviewed in connection with
another project about their interactions with creditor and lack of interaction with
bankruptcy judges that prompted me to develop the theory of the expressive power
of bankruptcy. The next Part overviews what these interviews and other prior
empirical studies of consumer debtors suggest about the validity of the theory.
There exists little empirical research directly into the social and emotional
impetuses that inform the theory of the expressive power of bankruptcy. The lack of
research likely has to do with the same factors that have directed scholarly attention
toward bankruptcy’s stigma and away from people’s feelings about debt. 248 Most of
the relevant recent evidence comes from the Consumer Bankruptcy Project (CBP),
the long-term project investigating people who file for bankruptcy from which most
of the empirical evidence underpinning the theory of the expressive power of
bankruptcy also originates.249 Because the CBP focuses primarily on who files and
why people file at a more macro level, its data are useful for developing the theory,
but not confirming the theory’s validity. For instance, data from the CBP yields
important insights about the stress of dealing with mounting debts, 250 and how long
people struggle to pay back those mounting debts before filing, 251 but only includes
people who ultimately decided to file for bankruptcy. 252
See supra Part IV.B.
Analyses of data from the CPB’s iterations have been published in numerous books and
scholarly articles. See, e.g., Lawless et al., supra note 10 (reporting on data from the 2007 CBP);
WARREN & TYAGI, supra note 66 (reporting on data from the 2001 CBP); SULLIVAN ET. AL., THE
FRAGILE MIDDLE CLASS, supra note 66 (reporting on data from the 1991 CBP); TERESA
SULLIVAN ET AL., AS WE FORGIVE OUR DEBTORS: BANKRUPTCY AND CONSUMER CREDIT IN
AMERICA (1999) (reporting on data from the 1981 CBP).
250
Thorne, Women’s Work, Women’s Worry, supra note 67, at 137 (discussing debtors’
reports of the emotional hardship of overindebtedness).
251
Lawless et al., supra note 10, at 381.
252
Similarly, in 1971, David Stanley and Marjorie Girth published the results of their
interviews with 400 individuals who had filed for bankruptcy in seven judicial districts across the
country. DAVID T. STANLEY & MARJORIE GIRTH, BANKRUPTCY: PROBLEM, PROCESS, REFORM
41-42 (1971) (listing districts). Debtors’ answers to—“how do you feel about having been in
bankruptcy?”—contain some relevant insights. Id. at 67. Debtors expressed favorable, neutral
with a twinge of defensiveness, and unfavorable reactions to having filed. Those with favorable
or neutral reactions said they felt “relieved,” “justified,” and that filing for bankruptcy “was a
lifesaver and my only solution.” Id. at 67-68. As with the CBP data, these reactions display some
of the emotional factors that may encourage overindebted individuals to file for bankruptcy.
248
249
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
41
Apart from the CBP, one study from the late 1960s provides some of the most
useful evidence about the lived experience of overindebtedness. In 1969, Herbert
Jacob published the results of questionnaires and personal interviews he conducted
with individuals from Wisconsin sued in state court by creditors seeking wage
garnishments and a subset of those individuals who had filed for bankruptcy postgarnishment.253 In exploring the stigma that accompanies garnishment and
bankruptcy, his interview data includes people’s feelings about garnishment and their
creditors. On the whole, those interviewed displayed bitterness about the
garnishments.254 More interestingly, many people who did not file for bankruptcy
displayed anger, but even more of the interviewees who had filed exhibited anger
about the garnishment.255 The overall bitterness supports the premise that people
dealing with overindebtedness will become angry with their creditors because of
collection efforts. Additionally, that more of the interviewees who filed for
bankruptcy post-garnishment evidenced hostile responses to creditors further
supports to theory that anger may push people to file for bankruptcy. 256
Jacob also found that the interviewed debtors viewed garnishment as more
stigmatizing than filing for bankruptcy.257 This result suggests that the stigma of
overindebtedness may surmount bankruptcy’s stigma, imploring people to file to
escape the emotional and social effects of overindebtedness, as theorized above. Also
as suggested above, this stigma and other emotions accompanying overindebtedness
may be the more appropriate focus when considering consumer bankruptcy laws. 258
Since Jacob’s study, one other study contains particularly relevant data. A team
of researchers from England used questionnaires to survey delinquent debtors and
people from the same consumer group to assess the stigma of overindebtedness and
the factors that encourage delinquent debtors to reach out to their creditors to take
the first steps toward resolving their overdue debts. 259 The results of the study
confirm that the delinquent debtors show a distinct social identity and feel
253
(1969).
HERBERT JACOB, DEBTORS IN COURT: THE CONSUMPTION OF GOVERNMENT SERVICES
Id. at 59.
Id. (reporting that 75% of interviewees who filed for bankruptcy evidenced bitterness
about the garnishments, while 60% of interviewees who did not file displayed bitterness).
256
See supra Part IV.A.1.
257
JACOB, supra note 253, at 112-113.
258
See supra Part IV.B. Two other interview-based studies include some quotes that
support the emotional underpinnings of the theory of the expressive value of bankruptcy. See
JANET FORD, THE INDEBTED SOCIETY: CREDIT AND DEFAULT IN THE 1980S 118-47, 179-82
(1988) (exploring how people managed defaulting on debts and, for instance, quoting one
interviewee as saying, “I felt ill, I remember the shock . . . I panicked, cried”). D AVID
CAPLOVITZ, CONSUMERS IN TROUBLE: A STUDY OF DEBTORS IN DEFAULT 273-89 (1974)
(exploring people’s feelings towards overindebtedness and, for instance, quoting one woman
who said she felt that all her debt was closing in on her).
259
Avril J. Mewse, et al., First Steps Out of Debt: Attitudes and Social Identity as
Predictors of Contact by Debtors with Creditors, 31 J. ECON. PSYCHOL. 1021, __ (2010).
254
255
42
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
stigmatized generally and personally because of their delinquency. 260 As a group, the
delinquent debtors also displayed less optimism and self-esteem than the nondelinquent consumers,261 which supports other studies’ findings that
overindebtedness may lead to a loss of self-esteem. 262 However, those debtors who
displayed a more durable perception of society identity and stronger “attitude of
financial self-efficacy” were more likely to reach out to their creditors to find a
solution to their financial problems.263 This result substantiates the hypothesis that
people who previously identified and may still identify as middle class will be more
likely to experience their overindebtedness in a way that does not severely diminish
their self-esteem and that instead encourages them to take action. 264 Given their
financial problems, that action necessarily is to file for bankruptcy because filing is
their only viable remaining option.
In addition to these studies, interview-based research of people who filed for
bankruptcy designed to assess bankruptcy’s stigma and shame provide
supplementary evidence of consumer debtors’ feelings about their financial problems
leading up to their bankruptcy filings. Two studies contain relevant insights. First,
Deborah Thorne and Leon Anderson interviewed couples from Ohio who filed for
bankruptcy in 1999.265 In exploring bankruptcy’s stigma, Thorne and Anderson
asked the debtors about their pre-bankruptcy tactics to avoid having to file. Several
debtors admitted sinking into “serious self-described depression” and considering
“suicide as a means to escape the pressures and worries associated with
insolvency.”266 Debtors also discussed the emotional repercussions of debt collection
calls, noting “collectors’ abilities to successfully shame and intimate” debtors,
sometimes to the point of debtors feeling scared that the phone would ring and
“trapped” in their own homes.267 After filing for bankruptcy, they used deviance
avowal techniques to evade bankruptcy’s stigma, including distancing themselves
from true “deadbeats” by citing “legitimate” reasons for their filings. 268 They also
implicated their creditors and unanticipated events as excuses for filing. 269
These debtors’ observations provide support for the some of the hypotheses
underlying the theory of the expressive power of bankruptcy. Debtors must
overcome feelings of shame to take action.270 Though the interview data do not
address how people did so, the debtors’ comments intimate that the one source of
Id. at __. See supra note 7.
Id. at __.
262
See supra notes 187 and 188 and accompanying text.
263
Mewse et al., supra note 259, at __.
264
See supra notes 189-192 and accompanying text.
265
Thorne & Anderson, supra note 8, at 80-81 (overviewing the study’s methodology).
266
Id. at 83.
267
Id. at 86.
268
Id. at 87.
269
Id. at 91.
270
See supra note 230 and accompanying text.
260
261
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
43
courage is creditors’ actions that lead people to feel trapped and angry, as
theorized.271 Moreover, that those people who ultimately file for bankruptcy situated
their filings amidst unforeseen circumstances supports the assumptions that
experiencing overindebtedness as stemming from events out of people’s control may
dampen feelings of shame and lessen losses in self-esteem, leading people to take
action to solve their financial problems. 272
Second, Michael Sousa interviewed individuals and couples who filed under
chapter 7 in Colorado between 2006 and 2010 about the events leading to their
bankruptcy filings and how they felt about their filings.273 Sousa found similar
feelings of shame and stigmatization among these debtors.274 Sousa further noted
that some of the interviewees’ discussions of their overindebtedness and bankruptcy
filings showed “a loss of self-worth and personal identity,” 275 but that debtors’ shame
about their overindebtedness overshadowed bankruptcy’s stigma, 276 as posited
above.277 In addition, several debtors expressed anger toward their creditors and
linked their filings with circumstances out of their control, 278 providing added
support for the hypotheses that anger and debts related to unanticipated events may
propel people into action.279
Finally, I recently interviewed forty-five leaders of religious organizations,
mainly Christian churches, who, between 2006 and 2013, placed their organizations
into chapter 11, a bankruptcy proceeding akin to chapter 13, but designed for
businesses.280 Though these interviews are with business leaders, the religious
organizations’ bankruptcy filings track those of individuals, not businesses. 281 My
interviews also revealed that these leaders think about the decisions to place their
organizations in bankruptcy in the ways similar to consumer debtors, drawing on the
same psychological tactics to overcome the stigma and shame of bankruptcy as those
debtors interviewed by Thorne and Anderson and Sousa.282 As such, these interviews
offer another vantage point to assess the validity of this Article’s theory about how
emotions and social standing influence the timing of bankruptcy filings.
Of note, most of the leaders I interviewed came from churches and
organizations with predominately African-American members, which aligns with the
See supra notes 193-200 and accompanying text.
See supra notes 187-192 and accompanying text.
273
Sousa, Bankruptcy Stigma, supra note 8, at 461-63 (discussing methodology).
274
Id. at 464.
275
Id. at 466.
276
Id. at 468.
277
See supra notes 237 and 238 and accompanying text.
278
Sousa, Bankruptcy Stigma, supra note 8, at 469-72.
279
See supra note 272.
280
Pamela Foohey, Lender Discrimination, Black Churches, and Bankruptcy, __
HOUSTON L. REV. __, ___ (forthcoming 2017) (discussing interview methodology).
281
Foohey, When Faith Falls Short, supra note 5, at 1339.
282
Id. at 1352-59.
271
272
44
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
demographics of the churches that have filed under chapter 11 over the last
decade.283 Nonetheless, my goals included learning what the leaders thought about
their organizations’ financial problems and what they expected from bankruptcy.
Particularly given the dearth of direct empirical investigation of people’s views of
bankruptcy as a social process, the leaders’ insights, though anecdotal, are useful to
begin to confirm the theory of the expressive power of bankruptcy.
Leaders’ discussions of why they turned to bankruptcy and how they thought
bankruptcy would benefit their organizations reinforce prior qualitative studies’
findings about anger toward creditors as a principal trigger of decisions to file.
Leaders described creditors as “relentless” and disrespectful, 284 and “predatory.”285
One leader called the church’s main creditor “scum and slime,” 286 and another leader
admitted feeling “violated.”287 Both of these comments implicate disgust as well as
anger. Leaders further made declarations such as “I wasn’t going down without
giving them a fight”288 and “so I felt angry and all those things and I wanted to see
justice.”289 When all else failed, filing for bankruptcy was that fight. 290
As a follow-up to how they felt about their organizations’ situations prior to
filing for bankruptcy, I spoke with leaders about the bankruptcy process. 291 These
discussions in particular prompted me to think more fully about the expressive
elements of consumer bankruptcy. Drawing from the anger, frustration, and disgust
that they felt about their predicaments, many leaders displayed a determination to use
bankruptcy to get back on solid financial ground. 292 For instance, one leader stated:
“[W]e had a sense of hope and relief [upon filing] because we felt we had a shot. . . .
At least we weren’t going to just roll over and play dead. We were ready to fight.” 293
Foohey, Lender Discrimination, supra note 280, at ___ tbl __ and __. In prior work, I
argued that the disparity between the demographics of churches that file for bankruptcy and
similar congregations nationwide relates to inequalities in lending practices by financial
institutions to churches. See generally id.
284
Telephone Interview with Leader 55, at 3 (May 6, 2013). To preserve anonymity, I
identify each interviewee based on a randomly assigned interview ID number. Interview scripts
and transcriptions are on file with the author. See Foohey Lender Discrimination, supra note 280,
at __ for a detailed description of interview methodology.
285
Telephone Interview with Leader 171, at 11 (Aug. 6, 2015).
286
Telephone Interview with Leader 169, at 5 (July 1, 2015).
287
Telephone Interview with Leader 58, at 5 (July 17, 2013).
288
Telephone Interview with Leader 59, at 4 (March 17, 2014).
289
Telephone Interview with Leader 58, supra note 287, at 5.
290
See Foohey, Lender Discrimination, supra note 280, at ___ (noting that leaders tried to
work with creditors and multiple other tactics to solve their financial problems before filing).
291
In particular, I asked how they felt immediately after filing for bankruptcy and if
anything about the bankruptcy process stood out to them.
292
Though the organizations filed under chapter 11, which provides for reorganization,
many leaders used the generic terminology of “fresh start” in describing what they hoped to
achieve through their organizations’ filings. This makes their observations pertinent to the theory
of the expressive power of bankruptcy, as it applies to people filing under both chapter 7 and 13.
293
Telephone Interview with Leader 176, at 5 (August 24, 2015). See also Telephone
283
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
45
That leader further discussed how the church’s creditor had foreclosed on the
church’s building, promoting a battle in state court. The leader had hoped that the
state court would treat them fairly, but did not believe such occurred. Moving to
bankruptcy court, “federal court,” as the leader emphasized, hopefully would bring
“justice” and “treat [the church] right,” which included “our day in court.” 294
Consistent with research into perceptions of procedural justice in other parts of the
legal system,295 when the bankruptcy judge ordered the leader to mediate with the
church’s creditor, the leader experienced that as the judge denying church leadership
a voice in the proceeding: “We never get to tell our story. . . . What we wanted was
to come in there and have our day in court.” 296 The outcome of the mediation was a
plan that allowed the church to keep its building, which it remained worshipping in
at the time of the interview. Yet the church’s leader still believed that justice was not
served, demonstrating the primacy of perceptions about the fairness of procedures
over substantive outcomes to debtors in the context of bankruptcy.
Other leaders echoed this longing to take part in the proceedings, even if that
merely meant being present in the courtroom: “I wanted to be there [in court] every
time. But I was advised that our presence wasn’t needed. I felt that I would love to
have been there to see the judge.”297 Part of this leader’s desire to be in court was
“[t]o look in the face of our – not accusers – but our assassins, because I look at
[creditor], I have no hate, I have no disdain, I feel sorry for them.” 298 Feeling heard is
central to people’s assessment of procedural justice.299
Those leaders who had more positive experiences appeared before judges or at
least attended hearings, again suggesting the importance of being heard, feeling that
the decision maker sincerely considered the case, and other aspects of perceptions of
procedural justice in the context of bankruptcy. 300 For instance, one leader noted that
“[the judge] listened to all the information and I really liked him.” 301 Further, as
found in other legal contexts, obtaining a favorable outcome was not necessary to
leaders’ perceptions that the bankruptcy process was fair. As one leader stated: “[The
judge] was fair and just. There were things that wouldn’t work. I mean, we didn’t
Interview with Leader 159, at 4 (May 7, 2015) (stating that bankruptcy “would give us clout, get
us in position to survive, recover, all of that. . . . Now we’re protected by the legal system so that
people can’t take advantage of us”).
294
Telephone Interview with Leader 176, supra note 293, at 5, 6, 9.
295
See supra Part III.B.
296
Telephone Interview with Leader 176, supra note 293, at 6, 8.
297
Telephone Interview with Leader 55, supra note 284, at 8. See also Telephone
Interview with Leader 166, at 4 (June 23, 2015) (“We really wanted to have our day in court so
that [alleged wrongdoing on behalf of a bank employee] could come out.”).
298
Telephone Interview with Leader 55, supra note 284, at 8.
299
See supra notes 110 and 111 and accompanying text.
300
See supra note 110 and accompanying text.
301
Telephone Interview with Leader 161, at 8 (May 8, 2015).
46
THE EXPRESSIVE POWER OF BANKRUPTCY
[29-May-16
win every battle. We lost some of it. But that’s only because that’s the way in works
in the court of law.”302
Overall, these interviews lend additional support for key parts of the theory of
how emotions and perceptions of social standing may lead people to file for
bankruptcy at a particular time. More importantly, the leaders’ comments provide
recent evidence of how debtors experience the process of bankruptcy. As theorized,
leaders looked for and expected bankruptcy proceedings to give them a voice and
help them to work out their organizations’ financial problems in a neutral forum,
even if the ultimate outcome was not what they had hoped for at the outset.
VI. CONCLUSION: TESTING THE EXPRESSIVE POWER OF BANKRUPTCY
Across the legal system, people use its procedures and outcomes to assess their
value as members of society and to deal with emotions arising from serious events in
their lives. Facing debts to the point of being unable to repay absent a miracle is
nothing short of a disastrous, and a threat to people’s social identities. Research into
the people who file for bankruptcy and the stigma of overindebtedness suggest that
people likewise may find an “expressive power” in filing for bankruptcy and its
processes. Bankruptcy provides a public referendum that allows people to reaffirm
their social standing, which has been tarnished by their overindebtedness, and,
relatedly, to cope with the negative emotions arising from their financial situations
and interaction with creditors.
Though some prior empirical studies of debtors and overindebted individuals
contain data and results that support parts of the theory of the expressive power of
bankruptcy, to fully assess the hypotheses that underlie the theory, researchers must
undertake more targeted empirical studies. Some studies should involve people
struggling with their debts and assess the lived experience of overindebtedness,
including how they think about their creditors and the options they have to regain
their financial footing. Qualitative, semi-structured interviewed based research, as
has been undertaken in the context of bankruptcy’s stigma, likely will provide useful
data to begin to understand how expressive theories of law apply to the bankruptcy.
Additionally, questionnaire based studies drawing from pools of overindebted
individuals and similar pools of non-indebted consumers, likewise should yield
insights into people’s thoughts about dealing with debts and perceptions of the social
meaning of filing for bankruptcy. As used to assess expressive theories of law in
other contexts, these studies can employ hypothetical vignettes to reveal people’s
thoughts and feelings. One of the keys to these studies, of course, will be to identify
groups of people to survey. Given the pervasiveness of debt collection, state court
debt collection proceedings are one place to begin this research.
It is difficult to overstate the importance of understanding the social and
emotions impetuses to file for bankruptcy. By the numbers, the bankruptcy system is
302
Telephone Interview with Leader 158, at 6 (May 6, 2015).
29-May-16]
THE EXPRESSIVE POWER OF BANKRUPTCY
47
by far the part of the federal court system most often used by people. What we know
about how people decide to use the bankruptcy system reveals that we are missing
some fundamental drivers of their decisions to file for bankruptcy. Given that
research shows people view the outcomes and proceedings of other parts of the legal
system as referendums on their social status, people almost certainly view the
bankruptcy system as place to assess and assert their social status. This Article
articulates a novel theory of the “expressive power” of bankruptcy that draws on that
research and other research about who files for bankruptcy. To better understand
how this important part of the legal system functions, now it is crucial to assess and
refine that theory.