Thomas Plank, Joel A. Katz Distinguished Professor of Law, teaches property, commercial and bankruptcy law. He focuses on the need for legal rules to reflect the fundamental nature of the property and the transactions being regulated. The continuing crisis in the real estate and real estate financing market over the last several years has generated many proposals for significant change in the law, and unfortunately many of these proposals fail to take into consideration this fundamental principle of property law. Plank’s recently published articles examine this failure.
For example, Crisis in the Mortgage Finance Market: The Nature of the Mortgage Loan and Regulatory Reform, 12 Transactions: The Tennessee J. of Bus. Law 135 (2011), as part of the Multidisciplinary Event: The Clayton Center for Entrepreneurial Law Behavior and Business Law Conference, examines the failure of recently enacted legislative changes in the regulation of mortgage loans to recognize the basic problem of mortgage finance—that a mortgage loan, which finances real estate, itself a long term asset, is also a long term asset which can only be financed by long term financing. In addition, Regulation and Reform of the Mortgage Market and the Nature of Mortgage Loans: Lessons from Fannie Mae and Freddie Mac, 60 So. Car. L. Rev. 779 (2009), part of a Symposium, “1.9 Kids and a Foreclosure: Subprime Mortgages, the Credit Crisis, and Restoring the American Dream,” explains how the public securitization of mortgage loans by Fannie Mae and Freddie Mac addressed this problem of finding long term financing for the origination of mortgage loans, but also how the issuance of short term debt by Fannie Mae and Freddie Mac to acquire long term mortgage loans contributed to their insolvency.
Plank also examines the permissible limits of bankruptcy law under the United States Constitution, and has published five articles on this topic, two of which have been cited by U.S. Supreme Court Justices, the most recent being a citation by Justice Scalia in a concurring opinion in Stern v. Marshall decided this past summer.
Recent Publications
Sense and Sensibility in Securitization: A Prudent Legal Structure and a Fanciful Critique, 30 Cardozo L. Rev. 617 (2008), responding to Kenneth Kettering’s fanciful criticism of securitization in Securitization and Its Discontents: The Dynamics of Financial Product Development 29 Cardozo L. Rev. 1553 (2008).
Toward a More Efficient Bankruptcy Law: Mortgage Financing Under the 2005 Bankruptcy Amendments, 31 S. Ill. U. L.J. 641 (2007) (part of the Symposium on Shredding the Safety Net: A Critical Examination of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005) (solicited article) (discussed below).
State Sovereignty in Bankruptcy after Katz, 15 Amer. Bankr. Inst. L. Rev. 59 (2007) (solicited article) (part of the Symposium on Federalism and Bankruptcy).
Assignment of Receivables Under Article 9: Structural Incoherence and Wasteful Filing, 68 Ohio St. L.J. 231-271 (2007) (part of symposium on Commercial Calamities).
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