This paper frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of the debtor in his financial dismantling. The pivotal moment in this story came in the years 1705-1706, when the English Parliament drafted a bill making the bankrupt’s refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge, of course, would have a fruitful future. Coercing the debtor to be honest, however, proved a failure. Fraud flourished, and few perpetrators were executed, in part because creditors and jurors found putting bankrupts to death a bit excessive. And yet, despite the failure of the English experiment with harsh penalties, the desire to punish debtors has remained a part of the culture of bankruptcy to this day.
Friday, August 14, 2009
Kadens on Capital Punishment for Bankruptcy in 18th-Century England
Posted by Mary L. Dudziak
The Last Bankrupt Hanged: Capital Punishment for Bankruptcy in 18th-Century England is a new paper by Emily Kadens, University of Texas at Austin School of Law. LHB readers will remember Emily from her great stint as a guest blogger last February. Here's her abstract: