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- Title
SEALING COMMERCIAL DOCUMENTS IN CONSUMER BANKRUPTCIES.
- Authors
Amodio, Lucas
- Abstract
In the Anglo-American legal tradition, open trials date back seven centuries, with Norman courts being open to free men. Federal courts continue this tradition by creating a presumption all court documents are, more or less, entered into the public record, and, therefore, should be publicly accessible. Congress included this presumption of openness in the Bankruptcy Code. Section 107 of the Code presumes that any paper submitted to a bankruptcy court would be available to the public unless the information that it contained fell within a limited set of exceptions, including "trade secret[s] or confidential research, development, or commercial information." The Code fails to define any of the four terms listed above, allowing bankruptcy judges (perhaps too much) discretion in what these terms encompass. This Note will examine how these terms have been analyzed, with particular attention to "confidential commercial information" and its applications. This Note will suggest how any inconsistency in jurisprudence, or differences between jurisprudence and the statute, can be corrected. Ultimately, this Note will argue the best path forward is a balancing test that looks past what information is being sealed to the quantified harm it can do if released publicly. This test will also include how to weigh different factors, primarily the relevance of the information to be sealed, in relation to the public's interest in the information. Corporations and repeat players (e.g., banks or mortgage companies) will benefit from clear-cut presumptions outlined infra, bankruptcy judges will have the flexibility to tailor solutions to each situation, and consumer debtors will continue to have access to speedy bankruptcy proceedings.
- Subjects
COMMERCIAL documents; PERSONAL bankruptcy; COMMON law; BANKRUPTCY courts; DEBTOR &; creditor
- Publication
Boston University Law Review, 2023, Vol 103, Issue 3, p903
- ISSN
0006-8047
- Publication type
Article