Race, Attorney Influence, and Bankruptcy Chapter Choice

Authors


Robert M. Lawless, Professor of Law, University of Illinois College of Law, 504 E. Pennsylvania Ave., Champaign, IL 61820; email: rlawless@illinois.edu. Braucher is Roger C. Henderson Professor of Law, University of Arizona; Cohen is Professor of Psychology, University of Illinois.

Abstract

We report on racially disparate uses of Chapter 13 bankruptcy. Currently, approximately 1,500,000 bankruptcy petitions are filed each year, with about 30 percent of those petitions being Chapter 13 cases. Although Chapter 13 can offer some legal advantages for persons seeking to protect valuable assets such as a house or automobile, it generally offers less relief and costs more than the primary alternative available to consumers, Chapter 7. The chief feature of a Chapter 13 bankruptcy case is a plan under which the debtor must devote all his or her disposable income to creditor repayment over a three- to five-year period. Chapter 7, in contrast, requires only that the debtor turn over all nonexempt assets, with over 90 percent of Chapter 7 debtors having no assets to turn over. This article reports on two studies, one using data from actual bankruptcy cases and the other involving an experiment with a national random sample of bankruptcy attorneys. Because the court system does not collect racial data on bankruptcy filers, the first study uses data from the Consumer Bankruptcy Project. Even after controlling for financial, demographic, and legal factors that might favor a Chapter 13 filing, African Americans are much more likely to file Chapter 13, as compared to debtors of other races. The second study reports on an experimental vignette sent to a random sample of consumer bankruptcy attorneys who represented debtors. The attorneys were more likely to recommend Chapter 13 when the hypothetical debtors were a couple named “Reggie & Latisha,” who attended an African Methodist Episcopal Church, as compared to a couple named “Todd & Allison,” who attended a United Methodist Church. Also, attorneys viewed “Reggie & Latisha” as having better values and being more competent when they expressed a preference for Chapter 13 as compared to “Todd & Allison,” who were seen as having better values and being more competent when they wanted to file Chapter 7, giving them a “fresh start.” Previous research and the results from the present experimental vignette study suggest that consumer bankruptcy attorneys may be playing a very important, although likely unintentional, role in creating the racial disparity in chapter choice. Together, the two studies raise questions about the fairness of the bankruptcy system.

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