“Really, if the lower orders don’t set us a good example, what on earth is the use of them? They seem, as a class, to have absolutely no sense of moral responsibility.” –Oscar Wilde, The Importance of Being Earnest
By Lambert Strether of Corrente.
Credit Slips informs us of an important new study, “Life in the Sweatbox,” by Pamela Foohey, Robert M. Lawless, Katherine M. Porter, and Deborah Thorne, forthcoming from the Notre Dame Law Review, and available for download now at SSRN. Foohey summarizes the article:
“Sweatbox” refers to the financial sweatbox—the time before people file bankruptcy, which is when they often are on the brink of defaulting on their debts and lenders can charge high interest and fees. In the article, we focus on debtors’ descriptions of their time in the sweatbox.
Based on CBP data, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. Two-thirds of people who file bankruptcy reported struggling with their debts for two or more years before filing. One-third of people reported struggling for more than five years, double the frequency from the CBP’s survey of people who filed bankruptcy in 2007. For those people who struggle for more than two years before filing—the “long strugglers”—we find that their time in the sweatbox is marked by persistent debt collection calls, the loss of homes and other property, and going without healthcare, food, and utilities. And although long strugglers do not file bankruptcy until long after the benefits outweigh the costs, they still report being ashamed of needing to file.
Our results suggest that the bankruptcy system, at present, cannot deliver its promised “fresh start” to many of the families that seek its protection.
In this brief post, I’ll look at one aspect of how the bankruptcy system came to be as it is: The narrative that debtors perform a “utilitarian calculus” in deciding whether or not to seek bankruptcy. This narrative is false, based the results of “Life in the Sweatbox.” Since it will crop up again if bankruptcy reform efforts gain traction — as they should — it’s important to debunk it now. This subject matter is new to me, so I will primarily quote from and contextualize Foohey, Lawless, Porter, and Thorne.
First, let’s define the “sweatbox.’ Foohey et al., page 1:
The time before a person files bankruptcy is sometimes called the financial “sweatbox.” People in the financial sweatbox are on the brink of defaulting on their debts, which is when their lenders can charge high interest rates and fees and otherwise profit from their customers’ financial misery.
Although the term “sweatbox” often is connected with bankruptcy, how long people spend in the sweatbox before filing and what it means to live in the sweatbox has yet to be carefully examined. Understanding what people endure while in the sweatbox is crucial to evaluating the longstanding belief that people decide to file bankruptcy based on a strategic, financial calculation.
Second, current personal bankruptcy law is premised on the narrative that people seek personal bankruptcy out of self-interest (the “utilitarian calculus”). Foohey et al., page 2:
The term “financial sweatbox” came out of the debates leading to the 2005 passage of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), a major amendment to the Bankruptcy Code designed to decrease consumer bankruptcy filings by making filing more difficult, expensive, and timeconsuming. The consumer credit industry insisted that changes to bankruptcy were needed because bankruptcy courts were full of deadbeat, “can-pay” debtors who filed “bankruptcies of convenience” to try to escape their rightful obligations and who felt no shame in “abusing” the system. This story contradicted the overwhelming expert consensus that the bankruptcy system functioned well, abuse was rare, and there was no need for drastic overhaul.
And from page 12:
To make its case for restricting access to bankruptcy and thus extend the time consumers spend in the sweatbox, the consumer credit industry painted a picture of profligate spending and uninhibited use of bankruptcy. This picture was not new. Rather, it was updated and embellished for more than a decade. Proponents further linked people’s supposed propensity to file at the first sign of financial trouble to a purported drastic decline in bankruptcy’s stigma.
. Proponents never substantiated the often-cited “fact” that bankruptcy was costing every American family $400 a year. The claim that bankruptcy courts were filled with “can-pay” debtors was contradicted by decades of robust empirical evidence that people file bankruptcy after experiencing exogenous shocks, such as decline in income, increased expenses, job loss, divorce, and medical problems. Based on this evidence, the related claim that bankruptcy’s stigma had disappeared became suspect. If anything, comparing levels of consumer debt and the number of bankruptcy filings, the stigma of filing may have increased over past decades.
Nonetheless, lured by tales of a $400 bankruptcy “tax,” Congress embraced the consumer credit industry’s assertion that restricting eligibility to and otherwise making it harder to file bankruptcy was the best policy.
(The politics of bankruptcy legislation, it seems, make the politics of health care law look like deliberations at Aristotle’s Lyceum.) So now you have been inocculated against the talking points from the credit “industry” (so-called), especially that virulent “$400 a year” one. I’m about to give the article’s internal logic on why these talking points are false, but the article is lavishly footnoted and you can run down plenty of additional material for yourself.
Third, the struggle to avoid bankruptcy involves immense suffering. Page 39:
To squeeze a few more dollars out of their lives, people work overtime, forego basic necessities, face serious health consequences, deal with persistent debt collection calls, end up in court, lose homes, and sell what little they own….
Financial misery hurts families. For couples, financial distress is “complicated by the internal dynamic of the household.” Struggling with unmanageable debts can strain marriages and relationships. Fights over how to make ends meet, shifting of responsibilities for dealing with ever-worsening finances, and watching loved ones deal with the emotional distress that comes with money troubles may lead to separation and divorce. Splitting one household into two only worsens the financial problems….
For parents, financial troubles are compounded with worries over how the kids cope with the hardships. If homes are foreclosed, children are displaced along with their parents, and may switch schools, possibly more than once as their parents find a workable living situation. Home loss is linked with educational regression. Even if children are not displaced, they notice their parents’ financial distress. Schedules change, diets change, and activities are scaled back as parents cut spending. Such changes can confuse children, resulting in behavioral and emotional problems. The effects of prolonged financial problems extend beyond families to workplaces and communities. Existing in a state of money scarcity damages people’s ability to lead productive lives. Merely determining how one will survive day to day depletes people’s mental resources. This leaves little energy for attending to anything else, including one’s job, threatening people’s livelihoods and leading to further economic drain. People withdraw from society, adding to their isolation. And the costs of life in the sweatbox are magnified by people’s reported underutilization of health-related services and insurance, which can permanently harm people’s health.
Fourth, many prolong the struggle to avoid bankrupcty long after it’s in their interest to do so. Page 3:
[T]wo-thirds of people who file bankruptcy report that they seriously struggled with their debts for more than two years prior to bankruptcy. Almost one-third report that they seriously struggled for more than five years, double the frequency from the CBP’s survey of people who filed bankruptcy in 2007. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging, distinguishing them from other debtors. They lose their homes to foreclosure, sell other property, report going without food and other necessities, all while employing multiple tactics to try to make ends meet and dealing with persistent debt collection calls and lawsuits. When long strugglers finally file, they enter bankruptcy with fewer assets than other debtors and overwhelming unsecured debts. . Yet seven out of ten long strugglers say they felt shame upon filing bankruptcy. These debtors’ reports about their prebankruptcy lives suggest .
Finally and finally, QED. Debtors, especially long strugglers, cannnot be presumed to perfom a “utilitarian calculus.” Page 42:
Debtors’ presumed utilitarian calculation that underlies debates about access to bankruptcy supposes more knowledge about law and shrewdness about timing than our data suggest people have. People’s willingness to file is diminished further by feelings of shame about using bankruptcy even when filing is clearly financially beneficial. Combined, the bankruptcy system is severely hampered in delivering the fresh start it is assumed to bestow on struggling families.
And from page 38:
Far from being a first resort, bankruptcy is the last refuge for struggling families, and their decisions to file .
At this point, I’m thinking that the situation in bankruptcy is so hellish that that loveable goof, Joe Biden, actually did student debtors a favor by not allowing them to file for it [hollow laughter].
It also occurs to me that since it’s not obvious that our elites are likely to feel shame, and it’s quite obvious that they’re adept at utilitarian calculus (ka-ching), perhaps they’re projecting their own values and behavior onto the rest of us?
This is an excellent article, far richer in data, ideas, and policy concepts than I’ve sought to convey here. Recommended reading. Grab a cup of coffee!