Myvesta Foundation Articles

This Article takes advantage of a rare double opportunity to break new ground in commercial, consumer, and comparative law. First, it offers one of the first detailed analyses of key elements of the new U.S. consumer bankruptcy reform law, which will go into effect on October 17, 2005. Second, this Article offers a unique perspective on the new law in light of a curious and surprising discovery: It turns out that the U.S. consumer bankruptcy system as reformed will resemble in many critical respects the consumer bankruptcy system in place for the past six years in the Netherlands. As a result of this serendipitous U.S.-Dutch convergence, years of experience under the Dutch consumer debt relief system can serve as a sort of crystal ball, providing a rare glimpse into the future of the new U.S. system. This Article describes both the law in books as well as the law in action as it has developed in the Netherlands in recent years. The Dutch law on the ground has diverged in significant ways from legislative expectations, and such divergences might well be repeated - for better or worse - in the United States in coming years. In particular, several key similarities and distinctions between the Dutch and U.S. systems reveal latent weaknesses and portend an impending breakdown in the credit counseling and means testing parts of our new system. A comparative view of recent Dutch developments offers not only cause for concern for coming problems, however, but also hope for some effective solutions.

In this paper, I draw on the insights of behavioral economics to explain the rise of consumer debt and analyze the potential of several emerging European consumer debt relief systems in preventing excessive consumer borrowing. First, I submit that behavioral economics offers compelling explanations for some of the reasons why consumers get themselves into financial trouble despite the obvious dangers of over-borrowing and over-spending. Consequently, I propose that behavioral economics might also indicate which legislative models of consumer debt relief might be most effective, not only in treating, but also in combating the growing problem of excessive consumer debt. Drawing on my recent studies of the operation of the new consumer debt relief systems in Germany, France, Belgium, and Luxembourg (and my initial observations on the system in the Netherlands), I argue that some aspects of these systems are likely to be more effective - and others may even be counterproductive - in achieving the often-stated European goals of imparting positive lessons to consumers about personal responsibility and payment morality. At least from the perspective of behavioral economics, the German system seems to emerge as the most potentially successful system, although other systems seem to be moving in the right direction in many areas.