A Modern Poor Debtor’s Oath

*Richard M. Hynes is the John Allan Love Professor of Law and the Nicholas E. Chimicles Research Professor of Business Law and Regulation at the University of Virginia School of Law. Nathaniel Pattison is an Assistant Professor of Economics at Southern Methodist University. The Authors thank Jonathan Arbel, Josh Bowers, John Duffy, Pamela Foohey, Michael Gilbert, Andrew Hayashi, Greg Mitchell, Edward Morrison, Belisa Pang, and participants at the 2021 American Law and Economics Association Annual Meeting for valuable comments. They thank Christian Fitzgerald, Ariel Hayes, and Molly Mueller for valuable research assistance. All errors remain the Authors' own.Show More

Bankruptcy offers a fresh start that frees individuals from crushing debt burdens. Many insolvent Americans are, however, simply too poor to afford bankruptcy. Filing for even the simplest type of bankruptcy costs around $1,800, with most of this money paid to attorneys who help complete more than twenty required forms and schedules. These forms verify that the debtor qualifies for relief and help divide the debtor’s estate among creditors, but for the large majority of debtors, this paperwork is unnecessary because the debtor easily qualifies for relief and has no assets to distribute.

History offers a better model. Two centuries ago, the law granted release from debtor’s prison through the simple execution of a “poor debtor’s oath”—a short declaration that the debtor lacked substantial assets. For most debtors, modern bankruptcy law should require no more than an updated version of a poor debtor’s oath that provides relief unless creditors or their trustees are willing to pay some cost to challenge the oath’s validity. To discourage the wealthy from taking false oaths, Congress could sharply limit the exemptions available in the simplified procedure. Even dramatically smaller exemptions would protect all of the assets of the overwhelming majority of bankrupt debtors. By avoiding costly processes for debtors who obviously qualify for bankruptcy relief, a modern poor debtor’s oath could save hundreds of millions of dollars in transaction costs each year and greatly expand access to bankruptcy.

Introduction

“The principal purpose of the Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.”¹ 1.See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007) (internal quotation marks and citations omitted).Show More The fresh start offers insurance against adverse events, such as unemployment or illness, that debtors either cannot purchase in the marketplace or will not purchase due to volitional or cognitive failures.² 2.Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv. L. Rev. 1393, 1405–18 (1985).Show More The fresh start also protects a debtor’s friends, family, and acquaintances from the consequences of the debtor’s financial distress. It may even protect the broader economy.³ 3.Id. at 1418–24.Show More Insolvent debtors may have little reason to work hard if creditors can seize their earnings.⁴ 4.Id. at 1420–24. For qualifications to this argument, see Richard M. Hynes, Non-Procrustean Bankruptcy, 2004 Univ. Ill. L. Rev. 301, 321–26.Show More

Bankruptcy cannot provide these benefits to debtors who cannot afford to file. Even the simplest form of bankruptcy, Chapter 7, requires more than twenty complex forms and schedules,⁵ 5.For example, in the Central District of California Bankruptcy Courts, at least twenty-seven forms are required to be submitted to the court by Chapter 7 debtors. U.S. Bankr. Ct. for the Cent. Dist. of Cal., Chapter 7 Petition Package (Individual Debtors), 3–6 (Dec. 2020), https://www.cacb.uscourts.gov/sites/cacb/files/documents/forms/Ch7%20IndividualPetitionPackage.pdf [https://perma.cc/JHR2-HMMG].Show More so nearly all debtors hire a lawyer.⁶ 6.Just 6.5% of Chapter 7 debtors file pro se. See infra note 158 and accompanying text.Show More On average, debtors spend more than $1,800 on filing and attorney’s fees.⁷ 7.See Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report, Am. Bankr. Inst. 130, tbl.A-6 (Dec. 2011) (listing total direct access costs (attorney’s fees plus filing fees) for no-asset Chapter 7 cases of $1,304 in 2005 dollars). The Bureau of Labor Statistics Inflation calculator converts $1,304 in May of 2005 into $1,806 in May of 2021. CPI Inflation Calculator, U.S. Bureau of Lab. Stat., https://www.bls.gov/data/inflation_calculator.htm [https://perma.cc/33FK-GRDN] (last visited Apr. 3, 2022).Show More These debtors must also pay their attorneys up front because, if the payment were financed, that debt too would be cancelled in bankruptcy. Debtors thus need to “sav[e] up for bankruptcy,”⁸ 8.See, e.g., Ronald J. Mann & Katherine Porter, Saving Up for Bankruptcy, 98 Geo. L.J. 289, 292 (2010). Then-Professor Porter has since been elected to the U.S. House of Representatives.Show More and yet the debtors most in need of bankruptcy are often those who live paycheck-to-paycheck and cannot afford to save up for anything.

Some of the cost of the modern bankruptcy petition is due to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”),⁹ 9.Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (codified in scattered sections of 11 U.S.C.).Show More legislation supported by then-Senator Joe Biden.¹⁰ 10.151 Cong. Rec. 3, 4351 (2005) (statement of then-Senator Joe Biden) (arguing in favor of the bill’s adoption during debate, concluding that “[a] vote for this bill is a vote to protect family support payments in bankruptcy. That is why I support this bill”).Show More Arguing that some debtors were filing for bankruptcy when they could afford to pay some or all of their debts, creditors successfully lobbied Congress to increase the evidence that debtors must produce when filing.¹¹ 11.SeeRobert H. Scott, III, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: How the Credit Card Industry’s Perseverance Paid Off, 41 J. Econ. Issues 943, 945 (2007).Show More Many consumer advocates, including then-Professor Elizabeth Warren, strongly opposed BAPCPA, arguing that the reforms would unduly raise the cost of filing for the vast majority of debtors who truly deserved relief.¹² 12.See, e.g., Robert M. Lawless et al., Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, 82 Am. Bankr. L.J. 349, 362 n.53 (2008).Show More

Now-President Joe Biden has endorsed bankruptcy legislation sponsored by now-Senator Elizabeth Warren.¹³ 13.Katie Glueck & Thomas Kaplan, Biden, Looking to Attract Progressives, Endorses Warren Bankruptcy Plan, N.Y. Times (May 22, 2020), https://www.nytimes.com/2020/03/14​/us/politics/biden-warren-bankruptcy.html [https://perma.cc/Y3V9-YN9Y].Show More With respect to making bankruptcy more accessible,¹⁴ 14.We express no judgment on other aspects of the reforms, such as making it easier to discharge student debt. Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(8) (2020).Show More these reforms do not go far enough. By repealing some of BAPCPA’s requirements, Senator Warren’s reforms may reduce the current cost of filing,¹⁵ 15.Elizabeth Warren, Fixing Our Bankruptcy System to Give People a Second Chance, Warren Democrats (Jan. 7, 2020), https://elizabethwarren.com/plans/bankruptcy-reform [https://perma.cc/Q529-HMSB].Show More but even before 2005, filing under Chapter 7 still cost consumers around $1,200 (in 2020 dollars).¹⁶ 16.See Lupica, supra note 7, at 130 tbl.A-6 (reporting total direct costs of $866 in 2005 dollars). Adjusting for inflation, this is roughly $1,199 in 2020 dollars. CPI Inflation Calculator, supra note 7.Show More Warren’s reforms would also allow more debtors to finance their attorney’s fees.¹⁷ 17.Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(4) (2020); Warren, supra note 15.Show More Yet that reform still leaves debtors spending significant sums just to prove an inability to pay their creditors and impedes bankruptcy’s fresh start by immediately saddling individuals emerging from bankruptcy with debt.

The complex forms and schedules required of debtors filing for bankruptcy stand in sharp contrast to the simple notice-filing standards available to creditors, who can file debt collection suits with just “a short and plain statement of the claim.”¹⁸ 18.See, e.g., Fed. R. Civ. P. 8. Even a plausibility standard requires only that the complaint allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).Show More Of the “eight million debt claims . . . filed [every year,] . . . six million . . . turn into default judgments,”¹⁹ 19.See, e.g., Yonathan A. Arbel, Adminization: Gatekeeping Consumer Contracts, 71 Vand. L. Rev. 121, 123 (2018).Show More meaning that the plaintiff will never have to produce any evidence.

By going all the way back to the Founding era, one can find an insolvent debtor’s action that matched the simplicity of modern notice filing—the poor debtor’s oath. “Debt was an inescapable fact of life in early America . . . [that] cut across regional, class, and occupational lines. Whether one was an Atlantic merchant or a rural shopkeeper, a tidewater planter or a backwoods farmer, debt was an integral part of daily life.”²⁰ 20.Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence 3 (2002).Show More The United States lacked a lasting federal bankruptcy law until the end of the nineteenth century,²¹ 21.Prior to 1898, Congress enacted three bankruptcy acts that together lasted less than twenty years. Congress repealed the Bankruptcy Act of 1800 in 1803, Act of Dec. 19, 1803, ch. 6, 2 Stat. 248, the Bankruptcy Act of 1841 in 1843, Act of Mar. 3, 1843, ch. 82, 5 Stat. 614, and the Bankruptcy Act of 1867 in 1878, Act of June 7, 1878, ch. 160, 20 Stat. 99. For a history of bankruptcy in the United States, see generally David A. Skeel, Jr., Debt’s Dominion: A History of Bankruptcy Law in America (2001) and Charles Jordan Tabb, The History of Bankruptcy Laws in the United States, 3 Am. Bankr. Inst. L. Rev. 5 (1995).Show More and many Founding-era Americans found themselves in debtor’s prison.²² 22.See infra notes 52–55 and accompanying text.Show More The poor debtor’s oath was an early reform that freed many debtors from this prison. In contrast to the numerous documents that a modern bankrupt debtor must submit, a federal version of this oath fit into just a few lines: “You solemnly swear (or affirm) that you have not estate, real or personal, nor is any to your knowledge holden in trust for you to the amount or value of twenty dollars, nor sufficient to pay the debt for which you are imprisoned.”²³ 23.Act of May 5, 1792, ch. 29, § 2, 1 Stat. 265, 266. For other versions of the poor debtor’s oath, see infra note 64 and accompanying text.Show More

Legal historian Bruce Mann suggests that the fact that the poor debtor’s oath was not part of a bankruptcy system explains the oath’s simplicity.

Insolvency and bankruptcy process create procedures for determining creditors’ claims against a debtor and for distributing the debtor’s property among his or her creditors in proportion to their claims. Poor debtor’s oaths offered neither, nor could they when they applied only to debtors with too little property to be worth distributing.²⁴ 24.Mann, supra note 20, at 51.Show More

Although modern bankruptcy law has procedures for determining creditors’ claims and distributing the debtor’s property, these procedures are not used in around 95% of consumer Chapter 7 cases because there are no assets to distribute.²⁵ 25.See infra Table 1.Show More Well less than 2% of these cases distribute more than $5,000 to unsecured creditors.²⁶ 26.See infra notes 129–33 and accompanying text.Show More The Supreme Court of the United States understated matters when it said that the fresh start is bankruptcy’s “principal purpose.”²⁷ 27.See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007).Show More In the overwhelming majority of consumer bankruptcies, the fresh start is bankruptcy’s sole purpose.²⁸ 28.Tom Jackson recognized this point when he noted that “[t]he fresh-start policy is thus substantively unrelated to the creditor-oriented distributional rules that give bankruptcy law its general shape and complexity.” Jackson, supra note 2, at 1396.Show More

Bankruptcy’s numerous schedules and other required documents could still play a useful role if they are needed to determine whether a debtor deserves a fresh start. However, because nearly all consumers who file under Chapter 7 receive the same relief—a discharge of debt without forfeiting any assets—a court does not need full disclosure of the specifics of a debtor’s financial condition. The court only needs to know that the debtor’s financial condition is bad enough to qualify for a Chapter 7 discharge without any distribution to unsecured creditors. For many debtors, this purpose can be achieved with a modern version of the poor debtor’s oath. One possible version of this oath based on the current law’s substantive rules would read, “After any exempt property is excluded and administrative expenses are paid, no funds will be available to distribute to unsecured creditors, and my household income is below [median income].”²⁹ 29.For a longer discussion of the possible text of this oath, see infra Section III.D.Show More Little more is actually needed from most debtors beyond their identifying information; creditors could learn of the debtor’s filing from the credit bureaus such as Equifax, Experian, and TransUnion.³⁰ 30.See infra Section IV.A. Our proposal is similar to Tom Jackson’s suggestion that the fresh start could be tied to a public declaration of insolvency. See Jackson, supra note 2, at 1396 n.8. (“For example, the law might grant discharge through a system of public notice whereby certain assets (such as future wages) would be freed from the claims of existing creditors. The mechanism of public notice would inform creditors of the debtor’s election.”).Show More

Although we call for a modern version of the poor debtor’s oath, we do not envision restricting the oath to the truly destitute. During her tenure as a law professor, Senator Warren and her colleagues persuasively argued that most bankrupt debtors are drawn from the “middle class,”³¹ 31.See, e.g., Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbrook, The Fragile Middle Class: Americans in Debt 2–3 (2000).Show More and in this paper, we demonstrate that the overwhelming majority of bankrupt debtors could rightfully take the above oath. As a result, we will primarily use the less common label for a poor debtor’s oath—an insolvent debtor’s oath.³² 32.For others using this phrase, see, for example, Robert A. Feer, Imprisonment for Debt in Massachusetts before 1800, 48 Miss. Valley Hist. Rev. 252, 259 (1961) and Walter H. Moses, Enforcement of Judgments Against Hidden Assets, 1951 U. Ill. L.F. 73, 79.Show More

That so many debtors can rightfully take the oath is partly due to bankruptcy’s current substantive rules. By definition, half of all households earn less than the median income, which makes them automatically pass bankruptcy’s income-based means test,³³ 33.See infra note 125 and accompanying text.Show More and many states provide exemptions that allow debtors to protect substantial wealth in bankruptcy. For example, twenty states allow debtors to exempt at least $100,000 in home equity,³⁴ 34.See infra note 104 and accompanying text.Show More and seven states (and the District of Columbia) have homestead exemptions with no dollar limit.³⁵ 35.See infra notes 101–03 and accompanying text.Show More We do not try to justify or reform these substantive rules. Rather, we argue that, given these substantive rules, bankruptcy should use very different procedures.

During the Founding era, an insolvent debtor’s oath shifted the burden of proof to the creditor to show that the debtor actually had assets.³⁶ 36.See Feer, supra note 32, at 255 (“The creditors were to be notified of the oath, and if they did not prove within fifty days that it was false, the prisoner was to be freed unless his creditors agreed to pay his weekly board charges.”).Show More However, a modern version could instead serve the same role that notice pleading serves in consumer debt collection—delaying the time when moving parties must present evidence and excusing presentation when their opponents concede or do nothing. Although the plaintiff retains the burden of proof in consumer debt collection, notice pleading shifts some burden to the defendant, who must challenge the complaint and force the plaintiff to provide evidence. If the defendant does nothing, the plaintiff will win a judgment by default. Similarly, creditors or their trustees could challenge an insolvent debtor’s oath and thereby force the debtor to complete the extensive schedules required by existing law. If such challenges are sufficiently costly, creditors will not challenge an oath unless there is a reasonably high probability that the oath was falsely taken. If an oath goes unchallenged, the debtor will receive a discharge by default.³⁷ 37.As is true under current law, courts could revoke a discharge if it is found to have been obtained by fraud or if a subsequent audit by the U.S. Trustee suggests revocation is appropriate. See 11 U.S.C. § 727(d); infra notes 165–69 and accompanying text.Show More

Lawsuits and other efforts to pursue a defaulting debtor cost money. Therefore, creditors and debt collectors have developed tools to predict whether debtors are likely to have sufficient assets or income to satisfy their judgments.³⁸ 38.See infra Section III.B.Show More We show that these same tools could be used to identify false oaths with a high degree of accuracy.³⁹ 39.See infra Section III.BShow More

By discouraging high-asset debtors from falsely taking an insolvent debtor’s oath, the law could reduce the incentive for creditors and trustees to challenge oaths and thereby lessen the administrative burden on those debtors who truly qualify for relief. In the Founding era, this was done by threatening severe punishment for perjury. This threat remains today in the form of bankruptcy fraud. Over time, however, consumers may learn that such a threat is largely empty. In our current system, debtors who make a material misstatement on their bankruptcy petition face more risk of being struck by lightning than being convicted of bankruptcy fraud.⁴⁰ 40.See infra notes 202–06 and accompanying text.Show More

Sharply limiting asset exemptions would more effectively deter wealthy debtors from falsely taking an insolvent debtor’s oath. Such a punishment is unlikely to harm debtors who rightfully take an oath because most debtors have assets that are far below currently available exemptions.⁴¹ 41.See infra Table 2 and accompanying text.Show More Homestead exemptions can be quite generous. However, over the last decade, roughly 80% of Chapter 7 debtors reported no home equity at all,⁴² 42.See Nathaniel Pattison & Richard M. Hynes, Asset Exemptions and Consumer Bankruptcies: Evidence from Individual Filings, 63 J.L. & Econ. 557, 569 tbl.2 (2020).Show More making the size of the homestead exemption available to them irrelevant.

Part I explores the debtor-creditor law of the Founding era. Although this law was much less generous than modern law, it did provide a very simple way for debtors to declare their inability to pay—the insolvent debtor’s oath. Part II describes a modern bankruptcy law that offers consumers very generous relief but requires complex paperwork and is unaffordable for many in financial distress. Part III proposes a new and greatly simplified bankruptcy procedure that would allow some debtors to take an updated version of the insolvent debtor’s oath in lieu of completing the complicated forms and schedules required by current law. The potential benefits are enormous. Because so many consumers file, the population of bankrupt consumers spends more than one billion each year on Chapter 7 filing costs alone,⁴³ 43.See infra notes 128–30 and accompanying text.Show More and the indirect costs of the paperwork may be even larger. Some insolvent debtors are too broke to file; they either forego bankruptcy protection altogether or file under a different chapter that allows them to pay their attorneys over time but rarely discharges their debts.⁴⁴ 44.See infra Section II.B.Show More Our proposal offers something for supporters of means testing as well. Procedures that require the production of costly information are easier to justify if they are restricted to the small number of debtors who are likely to have significant assets or income. Part IV addresses likely criticisms of our proposal, and Part V concludes.

1. See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007) (internal quotation marks and citations omitted). ↑
2. Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv. L. Rev. 1393, 1405–18 (1985). ↑
3. Id. at 1418–24. ↑
4.  Id. at 1420–24. For qualifications to this argument, see Richard M. Hynes, Non-Procrustean Bankruptcy, 2004 Univ. Ill. L. Rev. 301, 321–26. ↑
5. For example, in the Central District of California Bankruptcy Courts, at least twenty-seven forms are required to be submitted to the court by Chapter 7 debtors. U.S. Bankr. Ct. for the Cent. Dist. of Cal., Chapter 7 Petition Package (Individual Debtors), 3–6 (Dec. 2020), https://www.cacb.uscourts.gov/sites/cacb/files/documents/forms/Ch7%20IndividualPetitionPackage.pdf [https://perma.cc/JHR2-HMMG]. ↑
6. Just 6.5% of Chapter 7 debtors file pro se. See infra note 158 and accompanying text. ↑
7. See Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report, Am. Bankr. Inst. 130, tbl.A-6 (Dec. 2011) (listing total direct access costs (attorney’s fees plus filing fees) for no-asset Chapter 7 cases of $1,304 in 2005 dollars). The Bureau of Labor Statistics Inflation calculator converts $1,304 in May of 2005 into $1,806 in May of 2021. CPI Inflation Calculator, U.S. Bureau of Lab. Stat., https://www.bls.gov/data/inflation_calculator.htm [https://perma.cc/33FK-GRDN] (last visited Apr. 3, 2022). ↑
8. See, e.g., Ronald J. Mann & Katherine Porter, Saving Up for Bankruptcy, 98 Geo. L.J. 289, 292 (2010). Then-Professor Porter has since been elected to the U.S. House of Representatives. ↑
9. Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (codified in scattered sections of 11 U.S.C.). ↑
10. 151 Cong. Rec. 3, 4351 (2005) (statement of then-Senator Joe Biden) (arguing in favor of the bill’s adoption during debate, concluding that “[a] vote for this bill is a vote to protect family support payments in bankruptcy. That is why I support this bill”). ↑
11. See Robert H. Scott, III, Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: How the Credit Card Industry’s Perseverance Paid Off, 41 J. Econ. Issues 943, 945 (2007). ↑
12. See, e.g., Robert M. Lawless et al., Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, 82 Am. Bankr. L.J. 349, 362 n.53 (2008). ↑
13. Katie Glueck & Thomas Kaplan, Biden, Looking to Attract Progressives, Endorses Warren Bankruptcy Plan, N.Y. Times (May 22, 2020), https://www.nytimes.com/2020/03/14​/us/politics/biden-warren-bankruptcy.html [https://perma.cc/Y3V9-YN9Y]. ↑
14. We express no judgment on other aspects of the reforms, such as making it easier to discharge student debt. Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(8) (2020). ↑
15. Elizabeth Warren, Fixing Our Bankruptcy System to Give People a Second Chance, Warren Democrats (Jan. 7, 2020), https://elizabethwarren.com/plans/bankruptcy-reform [https://perma.cc/Q529-HMSB]. ↑
16. See Lupica, supra note 7, at 130 tbl.A-6 (reporting total direct costs of $866 in 2005 dollars). Adjusting for inflation, this is roughly $1,199 in 2020 dollars. CPI Inflation Calculator, supra note 7. ↑
17. Consumer Bankruptcy Reform Act of 2020, S. 4991, 116th Cong. § 101(b)(4) (2020); Warren, supra note 15. ↑
18. See, e.g., Fed. R. Civ. P. 8. Even a plausibility standard requires only that the complaint allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). ↑
19. See, e.g., Yonathan A. Arbel, Adminization: Gatekeeping Consumer Contracts, 71 Vand. L. Rev. 121, 123 (2018). ↑
20. Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence 3 (2002). ↑
21. Prior to 1898, Congress enacted three bankruptcy acts that together lasted less than twenty years. Congress repealed the Bankruptcy Act of 1800 in 1803, Act of Dec. 19, 1803, ch. 6, 2 Stat. 248, the Bankruptcy Act of 1841 in 1843, Act of Mar. 3, 1843, ch. 82, 5 Stat. 614, and the Bankruptcy Act of 1867 in 1878, Act of June 7, 1878, ch. 160, 20 Stat. 99. For a history of bankruptcy in the United States, see generally David A. Skeel, Jr., Debt’s Dominion: A History of Bankruptcy Law in America (2001) and Charles Jordan Tabb, The History of Bankruptcy Laws in the United States, 3 Am. Bankr. Inst. L. Rev. 5 (1995). ↑
22. See infra notes 52–55 and accompanying text. ↑
23. Act of May 5, 1792, ch. 29, § 2, 1 Stat. 265, 266. For other versions of the poor debtor’s oath, see infra note 64 and accompanying text. ↑
24. Mann, supra note 20, at 51. ↑
25. See infra Table 1. ↑
26. See infra notes 129–33 and accompanying text. ↑
27. See Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007). ↑
28. Tom Jackson recognized this point when he noted that “[t]he fresh-start policy is thus substantively unrelated to the creditor-oriented distributional rules that give bankruptcy law its general shape and complexity.” Jackson, supra note 2, at 1396. ↑
29. For a longer discussion of the possible text of this oath, see infra Section III.D. ↑
30. See infra Section IV.A. Our proposal is similar to Tom Jackson’s suggestion that the fresh start could be tied to a public declaration of insolvency. See Jackson, supra note 2, at 1396 n.8. (“For example, the law might grant discharge through a system of public notice whereby certain assets (such as future wages) would be freed from the claims of existing creditors. The mechanism of public notice would inform creditors of the debtor’s election.”). ↑
31. See, e.g., Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbrook, The Fragile Middle Class: Americans in Debt 2–3 (2000). ↑
32. For others using this phrase, see, for example, Robert A. Feer, Imprisonment for Debt in Massachusetts before 1800, 48 Miss. Valley Hist. Rev. 252, 259 (1961) and Walter H. Moses, Enforcement of Judgments Against Hidden Assets, 1951 U. Ill. L.F. 73, 79. ↑
33. See infra note 125 and accompanying text. ↑
34. See infra note 104 and accompanying text. ↑
35. See infra notes 101–03 and accompanying text. ↑
36. See Feer, supra note 32, at 255 (“The creditors were to be notified of the oath, and if they did not prove within fifty days that it was false, the prisoner was to be freed unless his creditors agreed to pay his weekly board charges.”). ↑
37. As is true under current law, courts could revoke a discharge if it is found to have been obtained by fraud or if a subsequent audit by the U.S. Trustee suggests revocation is appropriate. See 11 U.S.C. § 727(d); infra notes 165–69 and accompanying text. ↑
38. See infra Section III.B. ↑
39. See infra Section III.B ↑
40. See infra notes 202–06 and accompanying text. ↑
41. See infra Table 2 and accompanying text. ↑
42.  See Nathaniel Pattison & Richard M. Hynes, Asset Exemptions and Consumer Bankruptcies: Evidence from Individual Filings, 63 J.L. & Econ. 557, 569 tbl.2 (2020). ↑
43. See infra notes 128–30 and accompanying text. ↑

44. See infra Section II.B. ↑