NC Bankruptcy Expert

08/28/2026

Law Review: Miller, Michelle M., No Sisterhood on the Bench: Investigating In-Group Gender Bias in the U.S. Bankruptcy Court (July 16, 2026). ​: Law Review: Miller, Michelle M., No Sisterhood on the Bench: Investigating In-Group Gender Bias in the U.S. Bankruptcy Court (July 16, 2026). ​

Ed Boltz

Fri, 08/28/2026 - 16:17

Available at SSRN: https://ssrn.com/abstract=7130161

Abstract:

This paper investigates whether U.S. bankruptcy judges exhibit in-group gender bias. Using a newly assembled dataset of over 3.6 million bankruptcy filings from 2010 to 2018, I exploit the quasi-random assignment of cases to judges to estimate the effect of debtor-judge gender matching on bankruptcy outcomes. I find precisely estimated null effects: female debtors do not receive systematically different outcomes when assigned to female judges. These null effects persist across chapters, in settings where judicial discretion or gender salience may be more pronounced, and across judge characteristics. The findings suggest that, despite the importance of judicial identity in some legal settings, the structured and administrative nature of the consumer bankruptcy system may limit the role of debtor-judge gender matching in bankruptcy outcomes.

No "Sisterhood on the Bench"? New Research Finds No Evidence of Gender Matching Bias in Consumer Bankruptcy

Michelle Miller's new empirical paper, No Sisterhood on the Bench: Investigating In-Group Gender Bias in the U.S. Bankruptcy Court, asks an important question that has become increasingly prominent throughout the legal system: do judges favor litigants who share their demographic characteristics?

Using an impressive dataset of more than 3.6 million individual consumer bankruptcy cases filed between 2010 and 2018 across 61 bankruptcy courts, the paper exploits the quasi-random assignment of cases to bankruptcy judges to isolate whether female debtors fare better when their cases are assigned to female judges.

Summary

The answer, according to this study, is no.

The author finds no statistically or economically meaningful evidence that female debtors obtain better outcomes simply because their cases are assigned to female bankruptcy judges. The principal measure was whether debtors received a discharge, but the study also examined case conversion, case duration, Chapter 7 and Chapter 13 cases separately, and a variety of circumstances where judicial discretion might reasonably be expected to play a larger role. The null results remained remarkably consistent.

The paper also tested situations where one might expect gender to matter more, including Chapter 13 cases, asset cases, high-debt cases, cases with numerous creditors, secured debt, nondischargeable debt, and pro se debtors. Yet none of these settings produced evidence that female judges systematically favored female debtors.

The author further examined whether female bankruptcy trustees might exhibit similar in-group bias. While trustee assignment appeared less purely random than judicial assignment, the study still found no convincing evidence that debtor-trustee gender matching explained bankruptcy outcomes.

One interesting finding remains: female debtors were modestly more likely than similarly situated male debtors to receive a discharge. However, that difference did not appear to result from being assigned to female judges. Instead, the explanation apparently lies elsewhere.

Commentary:

This paper reinforces something many bankruptcy practitioners have experienced firsthand.

Consumer bankruptcy is unlike many other areas of litigation. Bankruptcy judges unquestionably exercise judgment and discretion, particularly in contested matters. But the overwhelming majority of consumer cases are driven by the Bankruptcy Code, Federal Rules of Bankruptcy Procedure, local rules, trustee administration, standardized forms, and objective financial information.

In many Chapter 7 cases, the judge never even sees the debtor unless a dispute develops. In Chapter 13, judges certainly play a more active role, but standing trustees perform much of the day-to-day administration of cases, with confirmation standards and statutory requirements constraining judicial discretion. Those institutional features make bankruptcy a poor environment for unconscious favoritism based simply on shared gender—a conclusion entirely consistent with this study.

That does not mean judicial identity never matters. Different judges have different approaches to statutory interpretation, procedural management, evidentiary rulings, attorney compensation, mortgage litigation, student loan issues, confirmation standards, and countless other recurring bankruptcy questions. Those differences can significantly affect litigants. But this study suggests that simply matching the gender of the judge and debtor is not one of them.

The paper also fits nicely alongside two other recent pieces of empirical bankruptcy scholarship that examine different aspects of fairness in the bankruptcy system.

First is the pending paper Racial Disparities and Bias in Consumer Bankruptcy by Sasha Indarte and her coauthors. Rather than asking whether judges favor litigants who share their demographic characteristics, that paper examines whether racial disparities emerge more broadly throughout the consumer bankruptcy system. The preliminary findings suggest that race may influence outcomes in ways that deserve careful study.

Second is Jason Iuliano's Gendered Outcomes in Student Loan Bankruptcy, 42 Emory Bankruptcy Developments Journal 43 (2026). Professor Iuliano likewise finds important differences in bankruptcy outcomes by gender, but his work asks a fundamentally different question. Rather than examining whether female judges favor female debtors, he studies whether women and men experience different success rates in student loan discharge litigation. Those are questions about substantive outcome disparities, not in-group favoritism by judges.

Taken together, these three papers highlight an important distinction.

Questions about disparate outcomes, systemic disparities, and judicial bias are not the same thing.

A finding that women achieve different outcomes than men does not necessarily mean judges are favoring one gender over another. Likewise, evidence of racial disparities would not automatically establish racial favoritism by bankruptcy judges. Differences in outcomes may arise from many sources, including financial circumstances, legal representation, creditor behavior, trustee administration, statutory requirements, or other structural features of the bankruptcy system.

Miller's paper provides persuasive evidence that bankruptcy judges, as a group, do not appear to exhibit in-group gender favoritism in consumer cases. If future research confirms meaningful racial disparities or gender-based outcome differences in other contexts, those findings need not conflict with this paper. Instead, they may point to broader institutional or structural issues that deserve attention.

That is precisely why rigorous empirical research matters. Bankruptcy policy should be guided by evidence rather than assumptions. Good scholarship not only identifies disparities—it helps us understand why they exist, which is ultimately the first step toward determining whether reforms are needed.

To read a copy of the transcript, please see:

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Available at SSRN: https://ssrn.com/abstract=7130161 Abstract:

08/28/2026

Available at SSRN: https://ssrn.com/abstract=7130161 Abstract:

08/27/2026

4th Cir.: TitleMax of South Carolina v. Spicher- Federal Court to Cannot Stop State Enforcement of Its Title Lending Laws: 4th Cir.: TitleMax of South Carolina v. Spicher- Federal Court to Cannot Stop State Enforcement of Its Title Lending Laws

Ed Boltz

Thu, 08/27/2026 - 15:16

The Fourth Circuit has issued another significant decision involving TitleMax's efforts to continue making high-interest title loans to residents of states that restrict or prohibit those loans.

In TitleMax of South Carolina, Inc. v. Spicher, the Fourth Circuit largely affirmed dismissal of TitleMax's federal lawsuit challenging Pennsylvania's efforts to enforce its consumer lending laws against loans originated across the border in South Carolina. Rather than deciding the ultimate legality of the loans themselves, the court held that federal courts should not interfere with Pennsylvania's ongoing administrative enforcement proceeding under the doctrine of Younger abstention. The court also held that TitleMax's challenge to a new investigative subpoena was not yet ripe because Pennsylvania had not attempted to enforce it. The only relief TitleMax obtained was a technical one—the subpoena claims were ordered dismissed without prejudice rather than with prejudice.

Summary:

TitleMax argued that because all of its title loans were originated in South Carolina, Pennsylvania could not constitutionally regulate those transactions even when Pennsylvania residents crossed the border to obtain the loans.

The Fourth Circuit disagreed—not on the ultimate merits—but on whether federal court was the proper place to resolve that dispute while Pennsylvania's administrative enforcement case remained pending.

Pennsylvania alleges that TitleMax made more than 5,270 title loans to Pennsylvania residents carrying interest rates as high as 720%, while recording Pennsylvania vehicle liens, collecting payments from Pennsylvania residents, communicating with borrowers in Pennsylvania, and repossessing vehicles located there. Pennsylvania seeks over $52.7 million in civil penalties together with restitution.

Applying the Supreme Court's decisions in Sprint Communications and Younger v. Harris, the Fourth Circuit concluded that Pennsylvania's administrative enforcement proceeding is precisely the type of ongoing quasi-criminal state enforcement action that federal courts generally must leave alone.

The court emphasized that:

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Pennsylvania has a substantial interest in enforcing its consumer lending and usury laws.

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TitleMax has an adequate opportunity to raise its constitutional defenses in the Pennsylvania administrative proceeding and later on judicial review.

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None of the narrow exceptions to Younger abstention applied.

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The separate challenge to Pennsylvania's 2024 investigative subpoena was premature because no court had yet been asked to enforce it.

Notably, the Fourth Circuit carefully distinguished deciding whether TitleMax ultimately wins from deciding where that fight should occur.

Yet Another TitleMax Decision

This is far from the first time courts have confronted TitleMax's interstate lending model.

Earlier this year, the North Carolina Court of Appeals in Ray v. TitleMax of Virginia held that TitleMax's business activities directed toward North Carolina residents were sufficient to establish personal jurisdiction in North Carolina courts. The decision recognized that simply requiring borrowers to drive across the state line does not necessarily insulate an out-of-state lender from the authority of the borrower's home state.

Likewise, in Frazier v. TitleMax Virginia, Inc., the North Carolina Court of Appeals again rejected arguments designed to shield TitleMax's cross-border lending practices from North Carolina law. As I discussed previously:

NC Ct. App. – Frazier v. TitleMax Virginia, Inc.: North Carolina Courts Continue Rejecting...

The federal courts have also rejected procedural attempts by TitleMax to avoid state-court litigation. In White v. TitleMax, the court reminded litigants that the Federal Arbitration Act, standing alone, does not create federal subject matter jurisdiction, requiring TitleMax to litigate elsewhere rather than invoking federal court simply because arbitration was involved.

Taken together, these decisions demonstrate a recurring judicial theme: courts are increasingly unwilling to allow the mere geography of loan origination to defeat legitimate state regulatory interests when lenders deliberately conduct ongoing business with residents of states that prohibit or tightly regulate title lending.

The Bigger Picture

This decision also fits within a larger body of research documenting that prohibited title lending continues despite state-law restrictions.

The Center for Responsible Lending's report, "Under the Radar: Evidence of Prohibited Vehicle-Title Loans Made in 23 States," describes how lenders have increasingly relied upon cross-border lending, internet lending, and affiliated corporate structures to continue making extremely high-interest vehicle title loans to consumers living in states that have attempted to prohibit or restrict those products.

The allegations in the Pennsylvania proceeding—that borrowers traveled to another state to originate loans but then continued servicing those loans, making payments, maintaining collateral, and facing repossession in their home state—bear a striking resemblance to the business model described in that report.

Whether Pennsylvania ultimately prevails on the merits remains to be seen. The Fourth Circuit expressly did not decide that question.

Instead, the court held something narrower—but still significant: TitleMax must make its constitutional arguments in the Pennsylvania administrative and judicial process, not by asking a federal court to halt the state's enforcement action before it runs its course.

As more states continue examining cross-border title lending, this decision is likely to become another important piece of the growing body of appellate authority recognizing that lenders cannot necessarily avoid consumer protection laws simply by locating the loan-closing desk a few miles across a state line.

North Carolina should take notice. Our appellate courts have already shown an increasing willingness to scrutinize TitleMax's cross-border lending practices, and this latest Fourth Circuit decision reinforces that states have a legitimate interest in protecting their residents from allegedly unlawful lending practices, even when the loan documents are signed elsewhere.

It may be time for the North Carolina Attorney General to undertake a comprehensive investigation into whether TitleMax's lending practices violate North Carolina's longstanding prohibition on consumer title lending and other consumer protection statutes. If Pennsylvania believes more than 5,000 loans to its residents warrant investigation and potential enforcement, North Carolina should determine whether similar conduct has occurred here.

Bankruptcy courts may also have an important role to play. When TitleMax files proofs of claim in North Carolina bankruptcy cases seeking payment on loans that could be illegal or unenforceable under North Carolina law, those claims deserve careful scrutiny. Both the Bankruptcy Administrators and Chapter 13 Trustees have independent responsibilities to review claims filed in bankruptcy cases and, where appropriate, object to claims that may not be enforceable under applicable nonbankruptcy law. While the ultimate validity of any particular claim will necessarily depend on the specific facts and governing law, these recent appellate decisions suggest that cross-border title loans should not simply be assumed to be enforceable because the loan closing occurred in another state.

Ultimately, consumer protection statutes are only as effective as their enforcement. If lenders can routinely evade state lending laws simply by directing borrowers to drive across a state line, legislative protections become largely illusory. The growing body of litigation involving TitleMax suggests that courts are increasingly unwilling to accept that proposition without careful examination of the lender's entire course of dealing with borrowers in the allegedly protected state.

To read a copy of the transcript, please see:

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4th Circuit Court of Appeals

The Fourth Circuit has issued another significant decision involving TitleMax's efforts to continue making high-interest title loans to residents of states that restrict or prohibit those loans.

08/27/2026

The Fourth Circuit has issued another significant decision involving TitleMax's efforts to continue making high-interest title loans to residents of states that restrict or prohibit those loans.

08/26/2026

Law Review: Hunt, John P. - Priority Treatment of Fraud Claims in Bankruptcy, 42 Emory Bankr. Dev. J. 417 (2026).: Law Review: Hunt, John P. - Priority Treatment of Fraud Claims in Bankruptcy, 42 Emory Bankr. Dev. J. 417 (2026).

Ed Boltz

Wed, 08/26/2026 - 15:37

Available at: https://scholarlycommons.law.emory.edu/ebdj/vol42/iss3/5

Abstract:

This Article defends the priority treatment of fraud claims in bankruptcy. The Article offers a new normative defense of priority, arguing that priority for fraud claims should be rooted not merely in the involuntariness of the victim's transfer but in the wrongfulness of fraud itself—specifically, the principle that no party, including innocent creditors, should profit from intentional deception at the expense of the victim.

The Article also challenges the main existing vehicle for fraud priority: constructive trust and its associated tracing requirement. Under current law, fraud victims can achieve priority only if they can identify, or trace, specific assets acquired through fraud, a condition that can fail to reflect whether the bankruptcy estate has actually been enriched. The tracing requirement is thus in tension with the prevailing justification for constructive trust, namely combating unjust enrichment.

The Article critiques the tracing requirement as an inapt tool for combating unjust enrichment. It revisits the once-popular "swollen-assets" theory, which presumes continued enrichment based on a showing of initial enrichment and thus did not require tracing in the current sense. The Article proposes either statutory priority for fraud claims or expansion of constructive-trust doctrine, potentially through revival of the swollen-assets theory.

The Article calls for a shift in doctrinal focus from tracing the proceeds of fraud to measuring and remedying unjust enrichment, thereby aligning bankruptcy outcomes more closely with foundational principles of fairness and restitution.

Summary:

Professor John P. Hunt's thoughtful article explores a longstanding tension in bankruptcy law: should victims of fraud receive priority over other unsecured creditors?

Current bankruptcy law generally does not grant statutory priority to fraud claims. Instead, fraud victims typically rely on two principal protections. First, many fraud debts are excepted from discharge under 11 U.S.C. § 523(a). Second, in limited circumstances, a victim may obtain a constructive trust if the fraudulently obtained assets (or their proceeds) can be traced into the bankruptcy estate. Professor Hunt argues that this tracing requirement is often arbitrary and fails to answer the real question—whether the bankruptcy estate was unjustly enriched by the fraud.

Rather than focusing on tracing technicalities, the Article contends that intentional fraud itself provides the moral justification for priority. Innocent creditors should not benefit from assets obtained through deliberate deception, and bankruptcy law should either expand constructive trust principles or create a new statutory priority for fraud claims. Although Professor Hunt acknowledges that constructive trusts are most often discussed in business bankruptcy cases and that fraud priority is less significant in consumer bankruptcies because of the prevalence of no-asset Chapter 7 cases and the availability of nondischargeability, he maintains that statutory priority would be the cleaner solution.

Commentary:

This is an excellent and carefully reasoned article. Professor Hunt raises difficult questions about fairness, restitution, and the sometimes artificial nature of tracing rules. It is certainly understandable why someone intentionally defrauded by a debtor would argue that they deserve something more than standing in line with ordinary unsecured creditors.

That said, before Congress were ever to consider creating a new priority category for fraud claims, it should carefully consider the consequences in consumer bankruptcy cases, particularly Chapter 13.

One of the central premises of the Article is that nondischargeability alone may not provide sufficient protection for fraud victims. That may be true in some Chapter 11 business cases, where distributions to unsecured creditors can be substantial. Consumer Chapter 13, however, presents a very different landscape.

Congress has already substantially limited the old Chapter 13 "superdischarge." Today, 11 U.S.C. § 1328(a)(2) excepts from a Chapter 13 discharge many of the debts described in § 523(a), including numerous fraud claims. In other words, if the debtor successfully completes a Chapter 13 plan, many fraud creditors already emerge from bankruptcy with enforceable claims that survive the discharge.

If Congress were to go one step further and classify fraud claims as priority claims under § 507, the consequences would be significant. Section 1322(a)(2) requires that a Chapter 13 plan "shall provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507," unless the creditor agrees otherwise.

That would mean many fraud claims would have to be paid in full during the life of the Chapter 13 plan.

For many consumer debtors, that would make confirmation impossible.

Chapter 13 already struggles under the weight of domestic support obligations, taxes, secured debt, rising mortgage payments, increasing insurance costs, and other mandatory plan expenses. Adding another broad category of mandatory priority claims would not simply reduce distributions to general unsecured creditors—it would frequently destroy plan feasibility altogether.

Ironically, that could leave fraud victims worse off. A debtor unable to propose a confirmable Chapter 13 plan may instead file Chapter 7, where there are often no nonexempt assets to distribute. The fraud claim may remain nondischargeable, but collection after bankruptcy is often difficult against an already insolvent debtor.

There is also a broader policy question. Bankruptcy has always balanced competing equities. Every new priority claimant necessarily pushes someone else further back in line. Congress has traditionally been cautious about expanding § 507 because priorities are exceptions to the Bankruptcy Code's general principle of equal treatment among similarly situated unsecured creditors.

Professor Hunt's proposal deserves serious discussion in the context of business reorganizations and constructive trust doctrine. But extending statutory priority to fraud claims in consumer cases would represent another substantial erosion of Chapter 13's rehabilitative purpose.

Congress has already determined that many fraud claims should survive a Chapter 13 discharge. Whether those same claims should also receive mandatory full payment through § 1322(a)(2) is an entirely different question—and one that could fundamentally change the affordability and accessibility of Chapter 13 for financially distressed families.

As with many proposals that seek greater fairness for one group of creditors, the difficult question is not whether the goal is admirable. It is whether the costs imposed on the bankruptcy system—and ultimately on debtors trying to repay what they reasonably can—would outweigh the benefits. On that point, Professor Hunt's otherwise compelling article leaves room for a healthy debate.

To read a copy of the transcript, please see:

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08/26/2026

Available at: https://scholarlycommons.law.emory.edu/ebdj/vol42/iss3/5

08/25/2026

Law Review (Economics): Zhang, Yunqi and Meng, Yu and Zhang, Xiaoyu, Household Debt Overhang and Bankruptcy abuse Prevention (December 01, 2025).: Law Review (Economics): Zhang, Yunqi and Meng, Yu and Zhang, Xiaoyu, Household Debt Overhang and Bankruptcy abuse Prevention (December 01, 2025).

Ed Boltz

Tue, 08/25/2026 - 16:02

Available at SSRN: https://ssrn.com/abstract=6936419

Abstract:

Bankruptcy abuse prevention has been criticized for increasing foreclosure rates, imposing negative impacts on housing markets, and aggravating the financial crisis. By contrast, this paper documents that bankruptcy abuse prevention reduces household debt overhang, a phenomenon harmful to home values and housing markets. Using a difference-in-differences analysis, the authors find that households in recourse states increased their home improvement and maintenance expenditures after the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), during a period when households paid considerable attention to downside housing market risk. The effects varied by home equity level and remained robust across numerous alternative specifications and controls.

Did BAPCPA Improve the Housing Market? A Different Perspective on Bankruptcy Reform

For years, much of the academic literature has criticized the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) for making it more difficult for financially distressed homeowners to save their homes. Numerous studies have concluded that by restricting access to Chapter 7 relief, BAPCPA increased foreclosures, weakened housing markets, and ultimately worsened the financial crisis.

This paper offers a thoughtful counterpoint.

Rather than focusing on mortgage defaults, the authors examine a different economic concept: household debt overhang. Their argument is that when homeowners believe they may eventually walk away from an underwater property, they have less incentive to invest in maintaining or improving that home. If bankruptcy reform makes strategic default less attractive, homeowners should have greater incentive to preserve and improve their property.

Using a difference-in-differences analysis comparing recourse and nonrecourse states before and after BAPCPA, the authors conclude that homeowners in recourse states increased home improvement and maintenance spending by roughly 25% after the law's enactment. They also find stronger effects among homeowners with higher loan-to-value ratios, numerous robustness checks supporting the results, and evidence that the effect was not explained by changes in credit availability, foreclosure procedures, homestead exemptions, or differences in housing expectations.

The paper is carefully researched, sophisticated in its econometric analysis, and refreshingly willing to challenge an established narrative. Even readers who ultimately disagree with its conclusions will find it worth reading.

That said, I remain unconvinced that this evidence rehabilitates BAPCPA.

The authors themselves appropriately acknowledge an important limitation: they are not attempting to determine the overall costs and benefits of BAPCPA, only one potential mechanism by which the statute may have affected homeowner behavior. They expressly recognize that prior research finding increased mortgage defaults and foreclosures is not necessarily inconsistent with their own findings.

That distinction matters.

Even if homeowners who remained in their homes invested somewhat more in maintenance because strategic default became less attractive, that benefit must still be weighed against the substantial costs BAPCPA imposed on financially distressed families.

The overwhelming purpose of consumer bankruptcy has never been to maximize home maintenance expenditures. Congress enacted the Bankruptcy Code to provide honest but unfortunate debtors with a fresh start while balancing the legitimate interests of creditors.

Unfortunately, BAPCPA shifted that balance dramatically.

The means test, mandatory credit counseling, expanded documentation requirements, increased attorney liability, higher costs, and numerous procedural hurdles have all made bankruptcy substantially more expensive and complicated. For many struggling families, those barriers delayed or prevented access to relief entirely.

Indeed, the authors' theory depends on exactly that point. Their explanation is that BAPCPA reduced the availability of Chapter 7 relief for homeowners in recourse states, thereby making strategic default less attractive. Whether one views that as a feature or a flaw depends largely on how one weighs strategic behavior against ensuring meaningful bankruptcy relief for families experiencing genuine financial distress.

There is also an important practical consideration.

The paper studies homeowner behavior during the years immediately surrounding BAPCPA's enactment and deliberately stops before the full onset of the housing crash. That is a sensible methodological choice for isolating the authors' hypothesis, but it also means the study does not answer the broader question that concerns bankruptcy practitioners: whether BAPCPA ultimately improved outcomes during the financial crisis itself.

For those of us who represented thousands of families during the Great Recession, the day-to-day experience looked quite different.

Many homeowners desperately wanted to save their homes but found bankruptcy relief more difficult, more expensive, and less effective than it had been before 2005. Countless families delayed filing until their situations had become far worse. Others simply could not afford competent representation because of the increased complexity Congress imposed.

None of that necessarily refutes this paper.

Instead, it illustrates why bankruptcy policy should rarely be judged by a single economic variable.

This article provides an interesting and valuable contribution to the literature by identifying one possible benefit of BAPCPA that deserves consideration alongside the many documented costs. But it should not be read as demonstrating that the 2005 reforms were, on balance, a success.

If anything, it reminds us that bankruptcy law often produces competing incentives with consequences that are difficult to measure fully. Improving one aspect of the housing market does not necessarily mean improving the lives of financially distressed Americans.

As always, the real challenge is striking the proper balance between discouraging abuse and preserving the fresh start that has long been the cornerstone of American bankruptcy law.

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