Researching §547 of the Bankruptcy Code.doc by shenreng9qgrg132


									Researching §547 of the Bankruptcy Code:

                             Table of Contents

I.     Introduction ………………………………………………………..…3

II.    Primary Source Materials………………………………………….….4

       A.   Federal Statutes………………………………………….……..4

       B.   The Federal Bankruptcy Code…………………………………5

       C.   Codification of Federal Law…………………………………...6

       D.   Federal Case Law…………………………………………...…11

III.   Legislative History ………………………………………………….15

       A.   General Overview…………………………………….………15

       B.   Researching Legislative History…………..…………….……17

IV.    Administrative Material……………………………………………..21

       A.   Explanation…………………………………………………...21

       B.   Agency Materials for §547 of the Bankruptcy Code………....23

       C.   Electronic Resources for Agency Materials……………….…23

V.     Looseleafs……………………………………………………..….…23

VI.    Secondary Source Materials………………………………………...24

       A.   Legal Dictionaries and Thesaurus…………………………... 24

       B.   Encyclopedias………………………………………………..26

       C.   Treatises and Restatements………………………………..…27

I.        Introduction
       A.     Scope of this pathfinder

        This pathfinder is meant for the beginning researcher. It is my attempt to come to
understand the process of researching Federal Law by applying the things I am studying and
learning to §547 of the Bankruptcy Code. In writing this pathfinder, I relied heavily on Legal
Research Illustrated, Eight Edition, Roy M. Mersky and Donald J. Dunn, Copyright 2002 By
Foundation Press, New York, NY. I have read most of this book and have found it very useful as
a research guide. I recommend the book to all who feel they need a better understanding of how
laws are made and where to begin searching for them.

       B.      Basic understanding of the Bankruptcy Code

       Article I §8 Clause 4 of the United States Constitution grants Congress power to establish
uniform Laws on the Subject of Bankruptcy. We know that the constitution places limits on
Congressional authority to make law because ours is a Constitution of enumerated powers.
Knowing that Congress has the authority to make Bankruptcy Law is something we take for
granted because they do make the law and the law is obviously followed and enforced. But it is
also important to know where Congress gets its authority.

       The Bankruptcy Code is Title 11 of the Unites States Code. The Major Legislative
Materials are the 1978 Bankruptcy Reform Act and the 1994 Bankruptcy Reform Act. Some
Amendments to the Bankruptcy Code were made in the Bankruptcy Tax Act of 1980, The
Bankruptcy Amendments & Federal Judgeship Act of 1984, and the Bankruptcy Judges, U.S.
Trustees, & Family Farmer Bankruptcy Act of 1986.

        The Bankruptcy Code is divided into chapters. Chapter 1 of the Bankruptcy Code is
Definitions and General Provisions. This Chapter applies to all the other Chapters of the Code.
Chapter 3 is entitled, ―Case Administration.‖ It set out the guidelines for declaring bankruptcy
and procedures that must be followed. It also tells what the effects of a declaration of
Bankruptcy are. The most important provision in Chapter three is §362, the automatic stay.
Declaring bankruptcy stops most types of actions against a debtor except for criminal actions and
actions brought by a government entity to enforce its regulatory power. One cannot declare
bankruptcy in order to keep polluting. Declaring bankruptcy can get debtors off one’s back,
including the IRS, for some period of time. Chapter 3, like Chapter 1 applies to all the
subsequent chapters of the Code.

        Chapter 5 is important because it defines what is included in the bankruptcy estate. This
includes the powers of the trustee in bankruptcy to void certain transfers of a debtor’s assets that
have already taken place. §547 allows the trustee to void transfers of 1) a property interest of the
debtor 2) to a creditor 3) on account of an antecedent debt 4) that occurred within 90 days of the
filing of the petition, unless the transfer was made to an insider and then it is one year, 5) while
the debtor was insolvent 6) and the transfer makes the creditor better off than he would have
been in a Chapter 7 liquidation bankruptcy.

        There are many exceptions to a preference. A substantially contemporaneous exchange
is excluded from being a preference. Payments made in the ordinary course of business where
the debt was incurred in the ordinary course of business and according to ordinary business terms
are excluded. This exception would mean payments to the phone company within 90 days
before bankruptcy will not be preferences. There is an exception for new value. When one
receives a preference payment, and after the payment extends new unsecured credit to a debtor,
the amount of the extension of new credit is subtracted from the preference. There are other
exceptions that I will not explain but which are found in §547. These exceptions are the most

         The remaining Chapters of the Bankruptcy Code represent the different types of
bankruptcy filings. Chapter 7 is liquidation bankruptcy. This is where all of a debtors non-
exempt assets are sold and the proceeds are given to creditors. Chapter seven can be declared by
individuals and most businesses. Chapter 11 is reorganization bankruptcy for businesses and
corporations, as well as for very wealthy individuals. I am told that Darryl Hannah once filed a
Chapter 11 bankruptcy. Chapter 13 is also a non-liquidation bankruptcy reorganization plan. It
is for individuals with regular income who come up with a plan to pay off their creditors usually
over three years. Chapter 12 is a special chapter for family farmers.

       C.      Using this pathfinder

        This pathfinder will give the inexperienced legal researcher a good starting point to find
the substantive law related to §547 of the Bankruptcy Code. The best place to start is with
Primary Source Materials. If one has access to LexisNexis or to a law library, Colliers on
Bankruptcy is another good place to start research and to get a good understanding of §547 of the
Code. More information on Colliers is found in the Secondary Source Materials section at the
end of this pathfinder.

II.    Primary Source Materials

       A.      Federal Statutes

               i.     The Federal Constitution

        The Federal Constitution grants Congress the authority to make laws on bankruptcy and
to regulate the area. The constitution will not help one find the substantive law of bankruptcy,
but knowing where Congress’ authority comes from is critical.

                       i. The Constitution on line:

                              a. is a
                                       place to find the constitution on the internet without having
                                       to pay a fee.

                      b.      The Constitution in Books:

                                Title:          United States Code Annotated
                                Publisher:      West
                                Author:         NA
                                Place:          St. Paul, MN
                                Date:           1927-
                                Availability:   KF62 1927.W45
                                LCH:            Law-United States
                                Updating:       Updated by pocket part

Brief explanation of USCA:

        The Unites States Code Annotated is a publication of laws past by the Congress and is
updated on a yearly basis in book form, and is updated more frequently on line. As I will give
further information on the USCA later on, I will not give a description of its access points and
usefulness right now.

        B.      The Federal Bankruptcy Code

                i.      Passage of Federal Law, an Overview

        Article I § 8 of the Constitution gives Congress power to make laws and enumerates the
areas in which Congress is authorized to Legislate. The Senate and The House of
Representatives are collectively known as Congress. Congress meets in two-year periods. Each
year is a session and the two-year period is a Congress.

         Each proposed law before Congress is called a bill or joint resolution. Once a bill is
passed in the house in which it originated, the bill is sent to the other house. If it is approved, it
is sent to the President for signing or veto.

        Once a bill passes both houses and gets the Presidents approval either by signature or by
the President choosing to let the bill pass without his signature, the bill becomes law.

        A bill that has become law is sent to the Archivist who classifies the law as a public law
or a private law. A private law benefits specific individuals while a public law affects the public
as a whole.

       Each public law, or private law, is given a reference. For example, the first public law to
be passed by the 105th Congress was Public Law No. 1. It is the first law passed in the two-year
Congress. (Legal Research Illustrated pg. 134-136).

                ii.     Publication of Federal Law

        The United States Government Printing Office puts out the first official publication of a
law called a slip law. Each law is published separately and then distributed to libraries that are
depositories for U.S. government publication. At the end of each session of Congress, all slip
laws are published in numerical order as part of the set UNITED STATES STATUTES AT
LARGE. Volumes 1-5 cover public laws and volume 6 private laws. (Legal Research Illustrated
pg. 134-136).

               iii.   Other sources for recently enacted public laws:

                      a.      Fee Based Electronic Resources
                              1. Westlaw:
                              2. LexisNexis:
                              3. Loislaw:
                      b.      Free Electronic Resources
                              1. Thomas:
                              2. GPO Access:
                      c.      Book Resources
                              1. United States Code Congressional and Administrative News
                              2. Unites States Code Services

       C.      Codification of Federal Law

        Codification of Federal law is the process by which Congress does at least the following:
First, puts original law with subsequent amendments in a way that reflects what changes have
been made; Second, gathers all laws on the same subject or topic and puts them together; and
Third, eliminates all repealed, superseded or expired laws. The United States Code is the official
publication of Federal Legislation. Every six years a new edition is published with cumulative
supplements issued during the intervening years. Westlaw publishes the United States Code
Annotated, which is a glorified version of the United States Code.

        Lexis Nexis publishes the United States Code Services. The United States Code Services
follows the Public Laws as they appear in the United States Statutes at Large whereas, United
States Code Annotated follows the United States Code. If there are discrepancies, the United
States Statutes at Large is correct

               1.     Access to the Code in Electronic Format

                      A.      Westlaw USCA http//

                           1. Getting to § 547 of the Bankruptcy Code
                                 a. Go to Westlaw Home Page
                                 b. Click on Table of Contents

                                  c.   Click on Unites States
                                  d.   Click on Federal
                                  e.   Click on United States Code Annotated
                                  f.   Click on Title 11 Bankruptcy
                                  g.   Click on Chapter 5 of title 11 Bankruptcy
                                  h.   Click on §547

       Westlaw’s on-line annotated version of the code is awesome. It contains the text of §547.
Under the Text it has a list of the Public Law Numbers that have become this section of the code.
For example, Pub.L. 95-598 is listed from 1978, which was the first version of the Bankruptcy
Code. Not only is this cite given, you can click on it and it will take you to the public law.

         Under the Public Laws, there is a Historical and Statutory Notes section. This section has
direct links to Legislative History relating to §547 it also has direct links to case law which is
essential to understanding certain sections of the code. For example, §547(c)(5) notes and
history contains a direct link to Dubay v. Williams, a case that is essential to understanding the
net improvement test which allows an exception to preferential transfers of security interests in
after-acquired inventory as long as the new inventory merely replaces inventory one had a
security interest in.

        Under the Legislative History section, there is a Section on Amendments. This section
gives direct links to the public laws that comprise this section of the code.

        Some other features of Westlaw include, Code of Federal Regulations section that lists
administrative material related this section of the code. This will be helpful later on in this
pathfinder when I directly deal with administrative materials. There is also a section with Law
Review Commentaries, which lists law review articles that have dealt with issues of this section
of the Bankruptcy Code. Last, there is an ALR Library Section. ALR stands for American Law
Reports. I will explain ALR in my secondary sources section. I also note that the ALR section
contains many direct links to Am.Jur cites. Am.Jur will also be discussed in the secondary
source materials.

        U.S.C.A. on Westlaw is a great resource. It has the text of the code, links to Legislative
History, Case Law, and Secondary Source Materials. As a student this is great. However, at the
law firm I work at, the firm does not pay for secondary source materials on Westlaw. I can only
get the Code and the case law. So in order to get the secondary material I have to go to books.
Westlaw is still good for this though because it gives the cites to Legislative History, Code of
Federal Regulation Material and all kinds of Secondary Sources.

                      B.       Lexis Nexis USCS, http//

                              1. Getting to § 547 of the Bankruptcy Code
                                    a. After logging into Lexis’ home page, click on Research
                                        System tab near the top of the page.
                                    b. Under Federal Legal – U.S., click on United States
                                        Code Services—Titles 1 through 50

                                       c.   At the next page, click on Title 11 Bankruptcy.
                                       d.   At the next page, click on Chapter 5.
                                       e.   Next, click on Subchapter III, The Estate.
                                       f.   Last, click on § 547 Preferences.

        USCS, on Lexis has much the same material as contained on Westlaw’s USCA. The
History of §547 follows the text of the law. Lexis lists the Public Law Numbers of this section
of the code, but unlike Westlaw, there are not direct links so you can immediately access them.
The History of §547 is given and does contain cites to legislative materials.

        Under a section entitled Notes, there are cross-references to other sections of the code
that are relevant to §547. This is like Westlaw.

        I prefer the Lexis USCS because it has a Table at the end of the Law Review and
Secondary Sources that lists 344 specific issues that have been litigated in Preference cases. For
example, II(A)(22) of this table is Elements of a Voidable Preference, Formal Requirements. If
you scroll down to this section, there is an explanation of the elements in a treatise type format
with direct links to case law. This gives one access to a lot of primary sources. It is easy to use
and is very helpful in spotting issues and figuring out how courts have dealt with the issues.

                       C.      Loislaw:

         I did not go onto Loislaw because it requires one to become a member and I assume there
is a fee because there is a free trial period. I don’t like free trial periods because I usually forget
to cancel before I get billed. It is enough here to note that Loislaw is another pay per view
website where the United States Code can be found.

       ii.     The Free Electronic Resources
                       1.      GPO Access has the United States Code-

                               a.      Getting to §547 of the Bankruptcy Code.
                                               i. Under the Big Heading The Legislative Process
                                                  click U.S. Code.
                                              ii. In the search box, put 11usc547 and click the
                                                  search icon.
                                             iii. This will take you to a page that will allow you
                                                  to click on the text of §547.

      Because GPO access is free, it does not contain all the annotated materials that are found
on West and Lexis. However, more than just the text of the statute is found.

        There is a section under the text of the statute that contains Historical Materials. First are
a series of legislative statements that is legislative history of the statute. There is text from
Senate Report No. 95-989 giving the senates explanation of portions of §547. There is also a
section on the amendments that lists the Public Law Numbers of bills comprising this section of
the Code. It also contains descriptions of what the amendments to §547 have changes.

       For a free web site, GPO access has some good material. It gives the text of the statute
and some good legislative materials. I like it because it is free. It is also easy to use.

                       2.      Cornell

        This website allows one to put the Title and section of the Code in and will link one
directly to the text. There are no notes or historical references here. If one just needs the text of
§547 this is a good place to go.

                       3.      Thomas:

                               a.       Getting to §547 of the Bankruptcy Code
                                        1.     Click on US Code on the home page.
                                        2.     In the search boxes put, 11 in the title box and 547
                                               in the section.
                                        3.     On the next page click on the link to the text.

         Thomas’ code version appears to be exactly the same as what is found on GPO Access.
Thomas has Public Laws from the 93rd Congress through the 108th Congress, which would make
it better to search than GPO if one wanted to have quick access to public laws also.

       iii.     The Code as Found in Books

                       a.      U.S.C.

                               Title:          United States Code, 2000 Edition
                               Publisher:      United States Government Printing Office
                               Author:         NA
                               Place:          Washington D.C.
                               Date:           1994 Edition
                               Availability:   KF62 1994 .A2
                               LCH:            Law—United States
                               Updating:       New Editions

     The Code and materials as contained in the USC is the same as can be found on the
Thomas and GPO Access websites.

       The Code is divided into 50 different Titles dealing with different subjects. Title 11 is
the Bankruptcy Code. Title 50 is War and National Defense.

        The United States Code is updated by new editions every six years. In the interim, the
government makes periodic publications of new laws. The USCA and USCS, probably because
they are privately run and not governmental, update more quickly.

                      b.      U.S.C.S.

                              Title:          United States Code Services
                              Author:         United State
                              Publisher:      Lawyers Cooperative Pub. Co
                              Place:          Rochester, New York
                              Year:           1997
                              Call No:        KF 62 1972, .L38 t.11
                              Update:         Pocket Part and new editions
                              LCH:            Law—United States

      The USCS divides its volumes by Title. This is a multi-volume series and the applicable
volume for the 1997 edition is entitled Title 11 Bankruptcy §§541-720.

        The Book version of the USCS contains the same information as the on-line version
described above. Because the on-line version has direct links to other material, I prefer the on-
line version for that reason.

       If one does refer to the book, the looking to the pocket part for changes in the
supplementary material or in the text of §547 is essential. In the April 2003 Cumulative
Supplement, there are quite a few changes to the supplementary materials. The on-line version is
updated and does not force one to look to a pocket part for updates.

        The USCS has a General Index that is a multi-volume set with topics listed
alphabetically. Under General topics, like Bankruptcy, sub-topics are listed alphabetically. To
find information related to §547, I looked under Bankruptcy and then found the sub-topic of
preferences and found all kinds of provisions dealing with Preferences. There are subheadings
under preferences with citations to code provisions dealing with the topic.

                      c.      U.S.C.A.

                              Title:          United States Code Annotated
                              Publisher:      West
                              Author:         NA
                              Place:          St. Paul, MN
                              Date:           1927-
                              Availability:   KF62 1927.W45
                              LCH:            Law-United States
                              Updating:       Updated by pocket part

         The United States Code Annotated is also a multi-volume set of published Federal Laws.
It is organized by United States Code Title and Section like the USC and USCS. The book

version contains the same information as the on-line version. For some reason while I was
perusing the on-line version I did not see the USCA’s Notes of Decisions. These contain
Headings on Important topics of §547 and these are broken down into sub-topics. There is a
general explanation of legal issues that arise under §547 of the Code and then there are cases
cited showing how courts have resolved those issues. There are 1334 subtopics/ legal issues
addressed in the Notes of Decision in the USCA if one looks to the 2003 cumulative pocket part.
This is a vast amount of information and gives a lot of case law. The online version gives direct
links to the cited decisions making it a quick research tool.

       The United States Code has a General Index like that of the USCS. It also has a popular
name table. Looking under Bankruptcy in this Table, one finds many cites to Public Laws with
corresponding Title and Sections of the Code listed in parenthesis.

         The best of the Textual Sources: I think the USCA and USCS are nice because of the
bulk of information and especially case law that can be found in them. They are both easy to use
as is the USC. The USCA comes in smaller volumes and has smaller print than the USCS. For
that reason I prefer the USCS. I acknowledge that the USCA seems to contain more case law
and materials. If I find the USCS deficient, I will only then turn to the USCA.

       D.      Federal Case Law

               i.     Electronic Resources
                      i. Fee Based

                              a.     Westlaw

        Westlaw has a whole search directory on the topic of Bankruptcy that allows access to all
kinds of Bankruptcy materials. The most interesting thing about Westlaw search is the key
directory system that breaks topics into sub-topics and assigns key numbers and places cases
dealing with subtopics under the key-cite numbers.

       This is a list of key-cite numbers that are relevant to §547 of the Bankruptcy Code:

                                               1.     51-Bankruptcy
                                               2.     51V(E) -Preferences
                                               3.     51k2606- Elements and Exceptions
                                               4.     51k2613 - New Value
                                               5.     51k2613(B) - Contemporaneous
                                               6.     51k2616(6) - Ordinary Course of Business

       The terms that coincide with the key cite numbers are also good search terms to use.
Other relevant search terms are:
                                               7.    When a transfer occurs
                                               8.    Earmarking doctrine
                                               9.    Purchase Money Security Interest

        Westlaw’s key-cite system is awesome. West has broken cases dealing with §547 into
about 10 subcategories and given key cites for each. Searching under the key cite directory
allows one to further limit search terms under a subcategory. It allows one to limit the
jurisdictions one will search for case law. I think this system is the best search system on the
market for finding case law on this topic. I may be wrong. But after looking through all the
available websites, I think West is the easiest to use because how it has systematically broken
down §547 into subtopics with cases and secondary materials available at the click of a button.

                              b.     LexisNexis

       Lexis allows one to search areas of Law by Topic. One of the General Topics is
Bankruptcy. On one page, one is given direct links to United States Supreme Court Cases,
Federal Court Cases by Circuit, Secondary Source Materials, Legislative History and more, all
dealing with Bankruptcy.

        The key in using Lexis as a research tool will be narrowing your case search by court and
also narrow your §547 enquiry. For example, if one wants to find out something about
exceptions to preferences, it is best to narrow your search to one exception. One possible search
term under the natural language search is ―the ordinary course of business exception to a
preference transfer.‖ I found 100 cases by running this search.

        Lexis is superior to the free websites where one has access to Bankruptcy cases because
its search system allows for more information to be entered. Lexis also has many secondary
sources. However, if you work for a cheap law firm, they may not pay to get the secondary
source stuff anyway. You may only have access to the cases. Still, Lexis’ search engine is
superior. I am not sure it is worth the large sum of money a law firm has to pay to have it

                              c.     Loislaw—

       I am not going to give any details about Loislaw. Just be aware that it is available for a

       ii.     Free Electronic Resources

                              1.                      Supreme Courts Official Web site

        This website has all the Supreme Court cases from the 2000 term. This includes the
latest cases the court has decided which have not been published in print form called ―slip

       Unless one knows a slip opinion is on a bankruptcy topic prior to going to the website,
one will not readily be able to tell because there is not an index for these cases.

       The United States Supreme Court Website also lists the available print and electronic
options for obtaining Supreme Court opinions. I will list most of these resources within this

      This Website Contains the United States Reports in their entirety from about the 1991
Supreme Court Term. So this will be helpful in finding current case law.

       There is an index at the back of each of these online volumes in which you can look for
cases dealing with certain topics. In the 1991 volume I looked up Preferential Transfers and the
index referenced me back to Bankruptcy and I found two cases in the 1991 volume dealing with
preferential transfers.

         The Supreme Court website will be particularly helpful once one knows what case she is
looking for. It is best to have the year of the decision before hand and it will make it easier to
find the opinion among the archived Reporters. Otherwise, one would end up looking through
all the indexes. That could be time consuming.

                              2.      Legal Information Institute and Supreme Court Cases


        This is the Cornell Law Schools website. It contains all Supreme Court opinions from
1990 to today. It also contains a list of Historic Supreme Court decisions that predate 1990. One
can do a search by topic. For instance, Bankruptcy is one of the topics one can click on to do a

        This Site also allows one to search the whole archive of decisions by topic. The available
topics are very general though. This makes it hard to search out opinions dealing on bankruptcy
preferences. When I did a search using preferences on this site, I got a bunch of cases along the
lines of Bakke and racial preferences.

        This website is great once you know the case you are looking for. As far as using the site
to do a search of Supreme Court cases dealing with a specific topic in bankruptcy, it is of limited

                              3.      Legal Information Institute and Federal Court Cases


       This link has Bankruptcy Court decisions on line listed by circuit and by state. For
instance searched for 9th Circuit, Northern District of California Federal Bankruptcy cases on
Preferential Transfers and found 7 cases. When I put ―preferences‖ as the search term, I found
over 20 cases dealing with preferences and § 547 of the code.

         It appears that the number of Supreme Court and Federal Court Opinions are limited at
this site. For example, the site only has South Dakota District Bankruptcy cases from 1987 on.

                              4.     Federal Courts Finder


      This website has links to sites that allow one to have access to the Supreme Court
Website and Websites containing Federal Court Decisions from every Circuit in the Country.

        For Example, I found a link to a Bankruptcy Court in Alaska. At the Alaska site I clicked
a link for the Alaska Bankruptcy Reporter that contains Bankruptcy Cases

        I think this website pretty much has access to the same information on the Cornell
website above. I like both of the sites because they are free. Obviously the available searching
tools are limited on these websites when compared with Westlaw and Lexis. There are no key
cite numbers or annotations.

                              5.     Findlaw


       This website has a direct link to the US Supreme Court Website and the opinions
published on it. Findlaw has its own Supreme Court Decisions database that has Supreme Court
opinions from 1893.

        The link to US Supreme Court cases allows one to search by citation, by party name, or
do a text search. The Cases one pulls up in Findlaw have direct links to the cited cases within
the text. I think it will be hard to do a search on §547 actions on Findlaw. It is best to find
citations from books or some other place. But once one knows what case he is looking for,
Findlaw should be very useful. I prefer it over the Cornell and Emory websites.

        Findlaw also has a link to US Bankruptcy Courts. Findlaw also has access to Federal
Court Opinions. The opinions are compiled by circuit, and I could not find a direct link to
Bankruptcy Court Opinions. However, using the links to specific Bankruptcy Court websites
often will give access to opinions.

        In Searching for Federal Bankruptcy Court Opinions, I find that the Cornell and Emory
sites are better because they give you direct links to Bankruptcy Court opinions while on
Findlaw, one must go directly to the Bankruptcy Court websites. If one has a case citation
already in hand, Findlaw is probably better because it allows one to have immediate access to
cases cited within opinions. Also, the number of cases on Findlaw is more extensive.

       iii. Supreme Court Cases in Books

                      a.      United State Reports for Supreme Court Cases

                             Title:          United Sates Reports for Supreme Court Cases
                             Publisher:      U.S. Govt. Print Off.
                             Place:          Washington D.C.
                             Date:           1754-
                             Availability:   KF101.A212
                             LCH:            Law reports, digests, etc.—United States

NOTE: I have only included bibliographical information on the book sources for Supreme Court
Case Law and Federal Court Law. I do this because I think it is much easier to use the internet.
However, for one who likes books better, have at these sources.

        One problem with The Reporter System is that Opinions are entered into the Reporters in
the order they are decided by the Court no matter what area of law the opinion deals with. Thus
topical indexes are needed to find cases on specific topics. The United States Supreme Court
Digest, Lawyers Edition provides a comprehensive topical index to cases decided by the
Supreme Court.
                       b.     The United States Supreme Court Digest

                             Publisher:      West
                             Author:         NA
                             Place:          St. Paul, MN
                             Date:           1943-
                             Availability:   KF101.A17x
                             LCH:            Law reports, digests, etc. –United States—

        The West Key Number System is used. I will not go into detail about this Digest. As
long as one has the ability to search Westlaw on-line, the digest is irrelevant.

       iv.    Other Federal Case Law in Books

                      a.    Federal Reporter

                             Publisher:      West
                             Author:         NA
                             Place:          St. Paul, MN
                             Date:           1993
                             Availability:   KF105.F43x 3d
                             LCH:            Law reports, digests, etc. – United States
                             Updating:       Updated by advance sheets

       Began in 1880. Now only Contains cases of the United States courts of Appeals

                      b.      Federal Supplement

                              Publisher:      West
                              Author:         NA
                              Place:          St. Paul, MN
                              Date:           1933
                              Availability:   KF120 .F43X
                              LCH:            Law reports, digests, etc. – United States
                              Updating:       Updated by advance sheets

       Began in 1932. The majority of cases contained are appellate court decisions, but there
are some District Court decisions as well.

                      c.      Bankruptcy Reporter

                              Title:          West’s Bankruptcy Reporter
                              Publisher:      West
                              Place:          St. Paul
                              Date            1980-
                              Availability:   KF125.B365x, Non-Circulating
                              LCH:            Law Reports, digests, etc.—United States, and
                                              Bankruptcy—United States—Cases

                      d.      West’s Bankruptcy Digest

                              Title:          West’s Bankruptcy Digest
                              Publisher:      West
                              Place:          St. Paul
                              Date            1980-
                              Availability:   KF125.B363x
                              LCH:            Law Reports, digests, etc.—United States, and
                                              Bankruptcy—United States—Cases-- Indexes
                              Update:          Pocket part and supplementary pamphlets

                This digest goes with the Bankruptcy Reporter. It is set up on a key system. For
example 2601 through 2623 all are key numbers under Preferences. The Digest is a multi-
volume digest that is numbered by the key system. Each key number stands for a sub-topic in
the preference area. Under that key number in the digest, one finds all the cases dealing with that
particular sub-topic. The opinions are divided by jurisdiction and date in some order that is not
readily apparent to me. There is a brief synopsis of each case and the citation. Law Review
articles on the subject are also listed.

       v.      Shepardizing Case Law

               A.     On-line sources, Westlaw and LexisNexis

       The online sources make shapardizing easy. Online citators keep cases shepardized up to
date. This avoids the hassle of having to go through books.

        Both Westlaw and Lexis have online citators. Lexis has the on-line version of Shephards
while Westlaw contains KeyCite. Use of either Lexis or Westlaw is easy. One need only pull up
a case and click on the Shepardize or Key-Cite link. The websites contain explanations of how to
use the systems to update cases. I find Westlaw’s KeyCite extremely easy to use.
When a case is pulled up it will have a symbol near the top of the page representing how
subsequent cases have dealt with the law. A red stop sign looking symbol means it has had
negative treatment. All one need do is click on the red flag and the subsequent history of the
case will come up. Not every red flag means a case has been overruled or is bad law. The
negative treatment of the case could have come from another jurisdiction that disagreed with the
decision. So look at the cases that generate the red flag to determine if any law has been
overturned. If so, see if it relates to the issue you are researching or not.

               B.     Book Sources of Shepards

                      i.      Shepard’s Bankruptcy Citations

                              Publisher:     Shepard’s/McGraw-Hill
                              Place:         Colorado Springs, CO
                              Date:          1980-
                              Update:        Issued in parts, updated b/w new editions and by
                                             supplemental parts
                              LCH:           Bankruptcy—United States

       Because the on-line Shepard sources are more relevant, any further explanation of this
source will not be given.

III.   Legislative History

       A.      Legislative History in General

       Legislative History is the documents that contain the information considered by a
Legislature prior to deciding whether to enact a law. Legal Research Illustrated pg. 164.

        Legislative History also includes evolution of a law over time as changed by subsequent
law and amendments to the law. Legislative History is consulted to determine the intent of a
legislative body in enacting a law. This is especially important when the text of a statute is

        This pathfinder deals specifically with Federal Legislative History. A short explanation
of the how legislation becomes law is in order. A bill is introduced into the one of the Houses.

The originating House sends the bill to a committee that is assigned to deal with bills on a
particular subject. If the committee thinks the bill is no good, it will let it die in committee. If
the committee likes the bill it will recommend its passage. Usually the committee will also
recommend changes to the original bill. The bill will then go the entire house. There may be
debates about the bill. If the bill passes it goes to the other House and goes through the same
process. At the end of that process a conference committee of the House and the Senate will get
together and reconcile the senate and the house version of the bill. The bill, which by now has
become an Act, will go to the President for his acceptance or rejection.

       Among relevant documents for getting Legislative History are the following:

                       1.      The original bill
                       2.      The committee report
                               a. If the House committee that looks at the bill approves it to be
                                  taken to the House, it will issue a committee report which will
                                  give amendments to the bill, give analysis of the intent and
                                  content of the legislation and also give an explanation of why
                                  the committee recommends passage of the bill into law.
                                        i. The committee reports are the most relevant documents
                                           in determining legislative intent.
                       3.      Conference Hearings
                               a. Hearings are conducted by a committee. The committees
                                  invite outside experts or interested persons to come into the
                                  committees and tell the committees what they think about the
                                  bill, including the probable effects of passage of the bill and the
                                  intent of the bill.
                                        i. Conference Hearings are not as authoritative as
                                           committee reports, but they may help clarify committee
                                           reports and give further insights into the issues that
                                           were important in deciding the bill.
                       4.      Congressional Debates
                               a. Once a bill gets through a committee and goes to a House floor
                                  for a vote, there may be some debate about the bill. Statements
                                  made by sponsors of the bill explaining the purpose of the bill
                                  are given some weight by courts.
                               b. Often, during the debates the ambiguities and controversial
                                  parts of a bill will be discussed. These discussions may give
                                  further evidence of legislative intent. Sometimes courts will
                                  also look at the general statements of legislators as indicative
                                  of intent because the individual House members may not all
                                  vote for the bill for the same reasons the committee puts forth.
                       5.      Conference Committee Reports
                               a. The Conference Committee tries to reconcile the Congress and
                                  Senate’s versions of a bill. There may be further amendments
                                  to a bill in the conference committee. There may be relevant
                                  debate and discussion on intent and content of a bill. Legal

                                   Research Illustrated, Eight Edition, Roy M. Mersky and
                                   Donald J. Dunn, Copyright 2002 By Foundation Press, New
                                   York, NY.

        B.     Researching Legislative History

        Researching Legislative History can be daunting and time consuming. The best way to
start one’s legislative history research is to find out if there is a compiled legislative history in
the area of law one is researching. One such source is:

               i.      Sources of Compiled Legislative Histories: A Bibliography of
                       Government Documents, Periodical Articles, and Books

                               Publisher:       F.B. Rothman
                               Place:           Littleton, CO
                               Date:            1979-

                               LCH: Legislative Histories—United States—Bibliography

               ii.      On line resources for obtaining Legislative History

        Westlaw contains a compiled legislative history for the Bankruptcy Code. This
compilation was put together by the law firm of Arnold & Porter. Below are the key sites to
retrieve the legislative history.

BANKR78-LH                         Arnold & Porter L.H. – Bankruptcy Reform Act of 1978
BANKR84-LH                         Arnold & Porter L.H. – Bankruptcy Amendments and Federal
                                   Judgeship Act of 1984
BANKR86-LH                         Arnold & Porter L.H. – Bankruptcy Judges, U.S. Trustees,
                                   and Family Farmer Bankruptcy Act of 1986
BANKR94-LH                         Arnold & Porter L.H. – Bankruptcy Reform Act of 1994

       One can easily search Westlaw for §547 Legislative History by logging on to Westlaw.
Go to the Westlaw Directory. Click on the Bankruptcy link. Then open the Bankruptcy reform
Act. Then open up Bankruptcy Reform Act Legislative History. Search with terms like,
preferences, Section 547, new value exception, Ordinary course of business, net value, Purchase
Money Security Interest, contemporaneous exchange, or security interests.

LexisNexis also provides legislative histories for selected bankruptcy laws. A table of specific
libraries that may be relevant is provided below.

BRA78                        Bankruptcy Reform Act of 1978 including acts, bills, reports and
                             public laws
BTA80                        Bankruptcy Tax Act of 1980 including acts, bills, reports and public

BAFJ84                    Bankruptcy Amendments and Federal Judgeship Act of 1984
                          including acts, bills, reports and public laws
BFFA86                    Bankruptcy Judges, U.S. Trustees & Family Farmer Bankruptcy
                          Act of 1986 including acts, bill, reports and public laws
BRA94                     Legislative History for the Bankruptcy Reform Act of 1994
MISC                      Miscellaneous Bankruptcy Legislative Histories
LEGALL                    Legislative Histories & Congressional Record Combined
CISLH                     CIS Legislative Histories of Public Laws covering bankruptcy law
                          issues from 1970-1993

The Thomas website ( is free and contains the following Legislative
History materials.

ITEM                            COVERAGE
Full-Text Bills                 101st Congress (1989) -
Bill Summaries                  1973 -
Selected Committee Reports      104th Congress (1995) -
Congressional Debates           Full-text Daily Edition of Cong. Record: 1989-
                                Cong. Record Index: 1994-
Hearings                        unavailable
Prints                          unavailable
Presidential Messages           unavailable

Another free website that contains Legislative History information is GPO Access.

ITEM                            COVERAGE
Full-Text Bills                 103rd Congress (1993)
Bill Summaries                  unavailable
Selected Committee Reports      104th Congress (1995) -
Congressional Debates           Full-text Daily Edition of Cong. Record: 1992
                                Cong. Record Index: 1992-
Hearings                        105th Congress (1997)-
Prints                          105th Congress (1997)-
Presidential Messages           unavailable also has free access to Legislative History information.

ITEM                            COVERAGE
Full-Text Bills                 104th Congress (1995) -
Bill Summaries                  N/A
Selected Committee Reports      104th Congress (1995) -
Congressional Debates           Full Text from 104th Congress -
Hearings                        Verbatim transcripts from 104th Congress-
Prints                          unavailable
Presidential Messages           unavailable

Note: I used the tables from an earlier pathfinder, and then added some new tables for the free
websites, because I think they are very helpful. To access the full text of this pathfinder go to Click on Advanced Legal Research. Under section B, Pathfinders,
click on 2003. The title of the pathfinder is, Bankruptcy Researching the Substantive Law. This
pathfinder is especially useful for Legislative History Research.

The websites for the House of Representatives and the Senate will give links to committee
websites which will also give access to Legislative History materials.

               iii.   Legislative History in Books

        The easiest way to find Legislative History dealing with amendments of §547 in book
form is to first find The USCA version of the Bankruptcy Code and look to its Legislative
History Section. Get the Public Law Numbers of the Amendments to the Code from the USCA.
Then go find the Legislative History in the USCCAN.

       For example, there were some Amendments to §547 in 1994. One Amendment can be
found in Pub.L. 103-394, § 203(1). One can see the textual changes Congress made by going to
USCCAN and The 3rd volume of the 103rd Congress contains this amendment.

       Now I look to Volume 5 of the 103rd Congress, and there are legislative history
documents that correspond to the Public Law and which explain why Congress amended the law.
There is a House Judiciary Committee Report contained in this volume.

       Using the USCA along with USCCAN makes it very easy to find updated information on
the Legislative History of §547. Remember that the first few volumes of a Congress in
USCCAN will contain the actual amendments or public laws. The last few will contain relevant
Congressional documents explaining the reasons for the amendments.

IV     Administrative Materials

       A.      Explanation

              Administrative materials come from the executive branch and its administrative
agencies. The authority to regulate and adjudicate is given to the agencies by Congress.
Agencies interpret and apply statutes by creating detailed rules and regulations to give meaning
to statutes.

        Administrative agencies release primary materials. These consist of agency
rules/regulations, agency decisions and adjudications, presidential documents and executive
orders as well as proposed rules.

       The Federal Register is where agency materials are compiled. Publication in the Federal
Register is like publication of Public Laws. They are placed in the Federal Register in the order

they are generated by the agencies. Codified agency materials are compiled in the Code of
Federal Regulations. The USCA or USCS give cross-references to the Code of Federal

              a.      Federal Register

        The Federal Register is put out by the United States Government Printing Office. The
Government has been printing it since 1936 when during the FDR administration and the New
Deal, the modern arm of the government known as the ―Agency‖ was created. Every regulation
is placed into chronological order as well as amendments to them. This source is updated every
working day of the Federal Government.

        Documents in the Federal Register are grouped and then published in five different
categories. These are: Presidential Documents, Rules and Regulations, Proposed Rules, Notices
and Sunshine Act Meetings. The United States Government prints a Federal Register Index
about twice a year. The index has sections that break materials up by name and subject, or by
CFR section numbers or Agency Docket Numbers. For example, in the 1998 July – December
Index under subjects and names there are a couple of listings under bankruptcy related materials
put out by the Department of Transportation, the Federal Trade Commission and the Federal
Communications Commission.

        The Federal Register is available on line through LexisNexis. Lexis’ coverage is from
July 1, 1980 at the Database FEDREG. Westlaw has the same coverage at the database FR.
GPO access has the Federal Register from 1994-.

       Some information that is available in the Federal Register cannot be found in the Code of
Federal Regulations. Proposed rules, agency policy statements, discussion of comments
received, and descriptive statements on agency organization are among those things in the
Federal Register that are not in the CFR.

              b.      Code of Federal Regulations

       Congress decided to compile the information in the Federal Register in the Code of
Federal Regulations starting in 1939. The Code of Federal Regulations contains those agency
materials that have been enacted and are primary sources.

        The CFR has 50 titles. The titles are divided into chapters representing particular
agencies. Chapters are then further divided into parts, each part being the agencies rules on a
particular topic. Each part beings with a statement of authority, purpose and scope. At the end
of each part a citation is given to the Federal Register showing when the rule was first
promulgated. Any amendments are also listed. This will help the researcher gain access to the
materials found in the Federal Register that cannot be found in the CFR.

       Regulation of Bankruptcy has not been put under the authority of any one agency.
However, here are rules promulgated by various agencies that may affect the code. Thus, agency
materials are not as important to bankruptcy code research as other areas of federal law.

       There is a index to the CFR, the CIS Index to the Code of Federal Regulations.
Regulations are listed by subject or geographic location. This source is published by LexisNexis.

       B.      Agency Materials for §547 of the Bankruptcy Code

               a.     Look at the annotations in the USCS and USCA and see if there are any
                      references to the Code of Federal Regulations. Newer regulations are
                      published in the Federal Register.

       There are not any references to the CFR in either the USCA or USC. This is probably
because there are no agency regulations of this section of the Code. In fact, there are very few
agency materials dealing with the Bankruptcy Code in general. The agency materials usually
have something to do with farmers and the Department of Agriculture. None of these affect

       C.      Electronic Resources for Agency Materials

               a.     Lexis Nexis Congressional

       The Federal Register and Code of Federal Regulations can be found on Lexis. The
availability of materials is limited to the early 1980s to now.

               b.     GPO Access (Free)

       Contains the Code of Federal Regulations from 1996.

       Agency Materials are not as important to the Bankruptcy Code as it is to other statutes.
Therefore this pathfinder will not spend any more space dealing with it.

       D.      Updating Agency Materials

        Recent amendments to regulations will be found in the Federal Register. The List of
Sections Affected is published by the Federal Government every month. It gives references to
any amendments made to agency regulations. These are listed according to chapter, part and
subsection. So if one has already found the regulation, all she need do is go to the most current
version of List of Sections Affected and see if there have been changes. One probably needs to
look at other recent issues of List of Sections Affected to see if there have been changes in the
previous months.

V.     Looseleafs

        Looseleafs are special binders that make it easy to insert and remove materials making it
easy to keep them up to date. Looseleafs are compilations of relevant statutes, regulations, court
cases, administrative agency decisions and commentary on a particular legal topic. So

Looseleafs contain primary and secondary sources. Really, they are the book version of
Westlaw. In fact, Looseleafs are often printed on-line now on Westlaw and Lexis Nexis.
Looseleafs can be a great place to start searching for administrative materials. Here is an
example of a Bankruptcy Looseleaf.

                              Title:          Bankruptcy Service, Lawyers Edition
                              Publisher:      Lawyers Cooperative Publishing Company
                              Place:          Rochester, NY
                              Date:           1979-
                              Availability:   KF1520.B36
                              LC:             United States.Laws, statutes, etc.; Bankruptcy Act
                                              of 1898,United States—Bankruptcy; Bankruptcy—
                                              United States

        The Looseleaf is updated with supplements at the back of each separate binder. It is
arranged by code section. The inside of the Looseleaf has tabs to help you find specific sections.
Topics under each chapter are also divided into key cite sections corresponding with Westlaw’s
key cites. There is an index before the chapter which divides the chapter into sub-parts and lists
the key cite sections contained under the sub-headings.

       The Looseleaf does not contain indexing to paragraph or page numbers, it does have a
how to use section but does have a summary section in the front of each binder. There is a
general index in binder 10 that allows one to search by topic or concept. One can find primary
and Secondary Decisions in the case notes in the Code/Rules Commentary and Analysis Section.

VI     Secondary Source Materials

       A.      Legal Dictionaries and Thesaurus

        Legal Dictionaries and Thesaurus may come be useful in one’s research just like any
other dictionary. These are not the most relevant sources for this pathfinder.

                              Title:        Ballentine’s Law Dictionary, With Pronunciations
                              Publisher:    Lawyer’s Co-op and Bancroft-Whitney Co.
                              Author:       James A. Ballentine, Edited by William S.
                              Place:        Rochester, NY and San Francisco, CA
                              Date          1969
                              Availability: KF156.B3 1969
                              LCH:          Law—Dictionaries, Law—Terminology
                              Updating:     By new edition.

        Ballentine’s has a nice explanation of a preference pursuant to §547 of the code. Under
preference it says: ―the act of a debtor in paying one or more of his creditors without paying the
others.‖ Ballentine’s even gives the elements for a voidable preferential transfer.

                              Title:          Burton’s Legal Thesaurus
                              Publisher:      MacMillan Library Reference
                              Author:         William C. Burton
                              Place:          New York, NY
                              Date:           1998
                              Availability:   KF156.B856
                              LCH:            Law—United States-Terminology-English
                              Updating:       By new edition.

       Has a set of synonyms for the word preference. One makes Preference as it is to be
understood in §547 of the code more understandable. It says (Priority) and lists words like ―
advantage, benefit, favored treatment‖ etc.

                              Title:        The Oxford Dictionary of American Legal
                              Publisher:    Oxford, University Press
                              Author:       Shapiro, Fred
                              Place:        New York, NY
                              Date          1993
                              Availability: KF159.S53s
                              LCH:          Law—United States-Quotations
                              Updating:     New edition

        This a fun book that has both serious and funny quotes on different legal topics made by
famous people or quotations taken from opinions written by judges. It does not have much
application to this pathfinder. A quotation from Justice Potter Stewart regarding bankruptcy
from a 1973 case is interesting though. ―The Court holds today that Congress may say that some
of the poor are too poor even to go bankrupt. I cannot agree.‖

                              Title:          Words and Phrases
                              Publisher:      West
                              Author:         NA
                              Place:          St. Paul, MN
                              Date:           1940
                              Availability:   KF156.W6712
                              LCH:            Law—United States-Dictionaries, Law-United
                              Updating:       Pamphlets that are put out yearly.

         This is a multi-volume work that gives authoritative court definition of terms. It also
cites to cases in which terms or specific issues have arisen and thus can lead to finding primary
sources. There are many entries under the term Preference that deal with specific issues that
have arisen under §547. There are also entries under the terms Preferential Payment and
Preferential Payments.

       B.      Encyclopedias

                               Title:        American Jurisprudence: A Modern Comprehensive
                                             Text Statement of American Law
                               Publisher:    West
                               Author:       NA
                               Place:        St. Paul, MN
                               Date:         1988
                               Availability: KF154.A42
                               LCH:          Law—United States, Law reports –digests, etc. –
                                             United States
                               Updating:     Annual Pocket Part.
                               Note:         This resource is available on Westlaw

        This multi-volume set has a general index arranged alphabetically. The actual volumes
are broken into topics, such as Bankruptcy. Each volume is then broken down into West Key
Cite numbers. The index gives one the run around if looking for information on Bankruptcy
Preferences. In the index, preferences points one to priorities and preferences. Once one gets
there, one is directed to look at the index under ―Assignments for the benefit of creditors.‖ I
cannot find anything specific to §547 here.

       Each of the individual volumes has a Table of Contents and so I looked and found that
Preferential transfers are under §§1887-2017. The perturbing thing is that the General Index did
not have anything listed under Preferential Transfers. I had to spend 10 minutes looking through
the Table of Contents to find what I was looking for. This did not endear me to this resource.

         This turns out to be a great resource. It explains Preference law in detail like a treatise,
citing to case law and secondary sources to support the text. It breaks preferential transfers down
into its individual elements and does the same for the exceptions. Despite either my ineptness at
using indexes, or the fact that the index is not very good, this is a great resource.

                               Title:         Corpus Juris Secundum: A Complete Restatement
                                              of the Entire American Law
                               Publisher:     West
                               Author:        NA
                               Place:         St. Paul, MN
                               Date:          19931936-

                              Availability: KF159.S53s
                              LCH:          Law—United States, Law reports –digests, etc. –
                                            United States
                              Updating:     New edition and pocket parts.

        This is another Legal Encyclopedia published by West. This multi-volume set purports
to be a complete and current restatement of American law. The encyclopedia can lead to many
primary sources and allegedly the most relevant primary sources on any given legal topic. The
C.J.S. provides cross -references to the West Topics and Key Numbers.

       The C.J.S. covers very broad topics, like Bankruptcy, then breaks the topics down
multiple times into smaller and smaller sub-topics. There is a general index to this volume
arranged in alphabetical order by topic, with many subtopics under each heading.

        Preferences are listed as the Second major topic under the Heading of Avoidance Powers.
The key cite is §§135-151. The volume follows the order of the key cites. My struggling with
AmJur helped me find where this information was more quickly in C.J.S. Under each subsection,
the Black Letter Law on an issue is first stated. There is text following the black letter statement
that explains. The text has footnotes that cite to the code and allegedly, The Cases dealing with
individual issues.

        CJS is more focused and condensed than AmJur at least for §547 material. It leads
directly to primary materials and is a wonderful source for §547 research.

       C.      Treatises and Restatements

                              Title:          Collier on Bankruptcy
                              Publisher:      Mathew Bender
                              Author:         Collier, William Miller
                              Place:          New York, NY
                              Date:           1996-
                              Availability:   KF1524.C62x
                              LCH:            Bankruptcy—United States
                              Updating:       New Editions and Pocket Updates.
                              Note:           This resource is available on Lexis Nexis

        Collier On Bankruptcy is an incredible resource for §547 research. Collier is a multi-
volume series published by Mathew Bender. It is also available on line through Lexis Nexis.
Collier first includes the text of §547. Then Collier gives a treatise on §547 complete with
footnotes citing to relevant case law as well as legislative history and secondary sources. This
source explains every element of a preference in detail and goes through all the exceptions. This
would be a great place to start research on §547.

Collier would be easy to use for any Bankruptcy issues. The volumes are divided by Code
Sections. There are also Trustees Manuals and volumes dealing with local rules. Collier also
has volumes related to Legislative History. These volumes include the actual Legislative History
in print form. The Legislative History is in chronological order starting with the History for the
1978 Bankruptcy Reform Act.

                               Title:          Bankruptcy and Related Law in a Nutshell
                               Edition:        6th
                               Publisher:      West
                               Author:         NA
                               Place:          St. Paul, MN
                               Date:           2002
                               Availability:   KF1501.Z9 E63
                               LCH:            Debtor and Creditor—United States, Bankruptcy –
                                               United States
                               Updating:       New Edition

        The last resource I will list in this pathfinder is a nutshell by David G. Epstein. Nutshells
give condensed explanations of the black letter law dealing with a specific area of law. They are
written in readable format so students and practitioners can get a less ―legal‖ explanation of the
law. David Epstein’s Nutshell has a chapter devoted to Preferences and the main focus is on
§547 of the Bankruptcy Code. The nutshell provides hypothetical situations to help illustrate
what a preferential transfer is and how to spot one. This is a good source for exam preparation as
well as to get a general knowledge of preferences. The nutshell does not cite to cases and so is
not a good source to look to in order to find primary sources.


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