In part II, the article traces the historical development of the idea of providing relief to troubled debtors in bankruptcy, an idea usually summarized as the "fresh start" policy of bankruptcy law. The article catalogs and describes the empirical assumptions and normative judgments underlying the various explanations offered for the availability of a discharge or "fresh start" in bankruptcy. In part II, the article examines the existing Bankruptcy Code in the light of these various theories. The article concludes that the Code's debtor relief provisions are best understood as a form of compulsory insurance for debtors. The nature of insurance and the grounds for compelling it are employed to provide a detailed framework both for understanding and for interpreting specific aspects of the Code's discharge provisions.
Charles G. Hallinan,
The "Fresh Start" Policy in Consumer Bankruptcy: A Historical Inventory and An Interpretive Theory,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol21/iss1/4