The ANU Law and Philosophy Forum is delighted to announce its first meeting in 2023: Professor Ralph Brubaker and Professor Heidi M Hurd (University of Illinois) will present their paper on “The Virtue of Bankruptcy”.

All are welcome to attend.

This paper will be a chapter in the forthcoming book, published by Oxford University Press, on the moral underpinnings of bankruptcy law.

The “fresh start” that is afforded individual debtors through the discharge doctrines of bankruptcy law has, to date, defied justification by a single normative principle or theoretical paradigm. The justificatory accounts that have been advanced to describe and motivate the right of bankruptcy discharge for individual debtors either fail to explain one or more of the core doctrines that define and limit the right or invite theoretical challenges that suggest that their descriptive virtues are swamped by their normative or conceptual shortcomings.

In this book Brubaker and Hurd seek first to taxonomize and critically evaluate the dominant theoretical accounts that have been advanced in the literature on bankruptcy discharge to date. They then seek to offer an alternative vindication for the institution of debt relief that concerns itself not with maximizing aggregate social welfare, nor with achieving distributive justice, nor with enforcing the correlative rights and duties of debtors and creditors. Rather, their account leans into the virtues of character that the rest of us must cultivate if we are to fulfil our aretaic obligations within a just and wealthy society. In their view, solvent consumers (like most of us) are the true creditors of those whose defaults are passed along in the form of higher prices within an open credit economy. The long-standing institution of discharge in bankruptcy responds to the recognition that we have aretaic obligations to be charitable towards those whose debts to us are causing them genuine hardship.

In short, the fresh start that bankruptcy gives desperate debtors is justified not by its effects on creditors, debtors, or future market actors, but by its satisfaction of the demands of individual charity to which all citizens within a capitalist economy are subject. Bankruptcy’s discharge of the debts of those who have become financially desperate is best thought to be an institution that aggregates others’ demands of good character so as to permit citizens for whom debt-forgiveness is a personal virtue to live in a society that fulfils that virtue in the collective.

Date and time: Tuesday 7 March 2023, 1-2pm AEDT

This session will be held in person at the ANU College of Law, in the Philippa Weeks Library, room 7.4.1.

For those who are unable to attend in person, there is a Zoom option, and the Zoom details accessible upon registration.

About the speakers

Ralph Brubaker is the James H.M. Sprayregen Professor of Law, and is one of the leading bankruptcy scholars of his generation. He is co-author of Bankruptcy Law: Principles, Policies, and Practice and has written dozens of journal articles and essays exploring all facets of federal bankruptcy law, particularly on corporate reorganisations and the complex jurisdictional and procedural aspects of federal bankruptcy proceedings. Professor Brubaker is the editor-in-chief and a contributing author for West’s Bankruptcy Law Letter, and he has served on the editorial advisory boards of The American Bankruptcy Law Journal and the American Bankruptcy Institute Law Review. He is a member of the American Law Institute, a Conferee of the National Bankruptcy Conference, and a Fellow of the American College of Bankruptcy, for which he has served as the Scholar-in-Residence.

Heidi M Hurd is the Ross and Helen Workman Chair in Law, Professor of Philosophy, and Professor of Latin American and Caribbean Studies, and she co-directs the Illinois Program in Law and Philosophy at the University of Illinois. Both a lawyer and a Ph.D.-philosopher, she writes on legal topics that invite moral scrutiny and raise questions that are fruitfully informed by philosophical analysis. She is the author of Moral Combat (Cambridge University Press, 1999) and editor of Moral Puzzles and Legal Perplexities (Cambridge University Press, 2019) and her articles on topics in criminal law, tort law, environmental law, and general jurisprudence have appeared in America’s leading law journals.

We look forward to hosting Professors Brubaker and Hurd at the Forum, and hope you will be able to attend.

About the ANU Law and Philosophy Forum

The ANU Law and Philosophy Forum is an interdisciplinary group focused on issues spanning law and philosophy.

Its core purpose is to promote research, discussion, and exchanges on various topics in law and philosophy, covering aspects of both private law and public law, and issues within both legal and political philosophy.

The Forum hosts guest speakers, holds workshops, and discusses recent scholarship of note in the field. Meetings are open to faculty members and research students from the College of Law and the School of Philosophy, and friends and colleagues of both.