Some Bargain: How Bankruptcy Courts May Now Require a Debtor to Relinquish Expectations of Privacy as a Condition of the Bankruptcy Bargain

Authors

Jennifer Taylor

Abstract

There was a time when incurring debt and becoming insolvent was considered a crime. Although those days are long gone, discharge of debt in bankruptcy continues to be premised upon the debtor's cooperation in the "bankruptcy bargain." Honesty and disclosure of certain relevant information is required in exchange for a "fresh start." This Note explores the level of scrutiny that an individual debtor must submit to as part of the bankruptcy bargain by asking and answering the Fourth Amendment question: What is society "prepared to recognize as reasonable?" Contrary to the recent opinion of one bankruptcy court that went so far as to completely subordinate an individual debtor's right to privacy to the public's interest in a fair administration of bankruptcy cases, the bankruptcy bargain does not expressly or implicitly require a debtor to waive his right to privacy. Years of bankruptcy jurisprudence and recent legislative reform have resulted in a balance between the privacy interests of debtors and the general interest in fair administration, demonstrating that society is prepared to recognize an individual debtor's reasonable expectation of privacy.

Recommended Citation

Jennifer Taylor, Some Bargain: How Bankruptcy Courts May Now Require a Debtor to Relinquish Expectations of Privacy as a Condition of the Bankruptcy Bargain, 56 Hastings L.J. 609 (2005).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol56/iss3/5