Todd Zywicki

Todd J. Zywicki (born 1966) is George Mason University Foundation Professor of Law at George Mason University School of Law, teaching in the areas of bankruptcy and contracts, where he has taught since 1998. He taught previously at the Mississippi College School of Law, where he held a faculty position from 1996 to 1998. Zywicki was a visiting professor of law at Vanderbilt University Law School for the Fall 2007 Semester, Georgetown University Law Center for the 2004–05 academic year, and a visiting professor at Boston College in 2002. During the 2003–04 academic year, he served as the director of the Office of Policy Planning at the Federal Trade Commission, in which capacity he testified before the United States House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection regarding reform issues.

Memberships and Affiliations

Zywicki is a member of the board of directors of the Bill of Rights Institute, and the governing board of the Financial Services Research Program at The George Washington University School of Business. He is chair of the Academic Advisory Council of the Bill of Rights Institute, the McCormick Tribune Freedom Museum in Chicago as well as the forthcoming film, "We The People in IMAX". He serves on the advisory council for the Financial Services Research Program at The George Washington University School of Business, the executive committee for the Federalist Society's Financial Institutions and E-Commerce Practice Group, the advisory council of the Competitive Enterprise Institute, and the Program Advisory Board of the Foundation for Research on Economics and the Environment.

Zywicki is senior fellow of the James Buchanan Center for Political Economy Program on Philosophy, Politics, and Economics at George Mason University, a senior fellow of the Goldwater Institute, a senior scholar of the Mercatus Center at George Mason University, and a fellow of the International Centre for Economic Research in Turin, Italy. During the Fall 2008 Semester Professor Zywicki was the Searle Fellow of the George Mason University School of Law and was a 2008–09 W. Glenn Campbell and Rita Ricardo-Campbell National Fellow and the Arch W. Shaw National Fellow at the Hoover Institution on War, Revolution and Peace at Stanford University. He has lectured and consulted with government officials around the world, including Iceland, Italy, Japan, and Guatemala. In 2006 Professor Zywicki served as a member of the United States Department of Justice Study Group on "Identifying Fraud, Abuse and Errors in the United States Bankruptcy System".

Zywicki attended Dartmouth College, graduating in 1988. At Dartmouth, he was a member of Zeta Psi Fraternity. In 2005, Zywicki was elected to the Dartmouth Board of Trustees as an Alumni Trustee. Zywicki is a trustee of Yorktown University, a conservative for-profit Internet-based university.

Legal Scholarship and Activities

Zywicki has testified on numerous occasions in his personal capacity before committees and subcommittees of the United States Senate and United States House of Representatives on issues of bankruptcy and consumer credit. In 2005, he wrote at The Volokh Conspiracy that "the growth in subprime lending is not creating overwhelming debt burdens for low-income households."

During the run-up to the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), a law that was heavily lobbied for by the financial services industry and that made it more difficult for consumers to discharge their credit card debts in bankruptcy, Professor Zywicki testified before Congress that the law was likely to reduce the costs of debt to all borrowers by reducing losses to credit card lenders:

"[W]hen creditors are unable to collect debts because of bankruptcy, some of those losses are inevitably passed on to responsible Americans who live up to their financial obligations. . . . We all pay for bankruptcy abuse in higher down payments, higher interest rates, and higher costs for goods and services."

"This bankruptcy 'tax' takes many forms. It is obviously reflected in higher interest rates. . . . It is [also] reflected in shorter grace periods for paying bills and higher penalty fees and late-charges for those who miss payments . . . [R]educing the number of strategic bankruptcies will reduce the bankruptcy tax paid by every American family . . . . These reforms will make the bankruptcy system more fair, equitable, and efficient, not only for bankruptcy debtors and creditors, but for all Americans."

Professor Zywicki's testimony, including his use of the phrase "Bankruptcy Tax", closely matched talking points used by lobbyists working for the credit card industry. Thanks in part to Professor Zywicki's testimony, the bill became law.

Professor Zywicki's predictions about the effects of BAPCPA on credit card pricing were almost immediately discredited by hard data. Although credit card company losses decreased, prices charged to consumers actually increased. Credit card industry profits swelled to record levels. The reason Professor Zywicki's predictions proved to be wrong appears to be that the credit card industry is not price-competitive, due to industry consolidation and to complicated fees that make it too difficult for consumers to price-shop.

Congress has not revised the consumer bankruptcy provisions of BAPCPA, but instead passed a law that requires improved disclosure of fees by credit card companies.

In his scholarly and popular writing, Professor Zywicki continues to write about issues that are of concern to the credit card industry, continues to suggest that the industry is price-competitive, and continues to argue that the interests of the credit card industry are closely aligned with those of its customers. He has recently argued against efforts to regulate the fees that credit card payment networks charge to merchants, claiming that such regulation will harm consumers because credit card companies will try to recover the lost revenue from them. Professor Zywicki's assertions have been challenged by financial engineers and legal scholars, including an economist whose work he has cited. George Mason University, where Professor Zywicki teaches, refuses to accept Visa for tuition payments because the interchange fees are too high.

Zywicki has also written editorials attacking academics who have disagreed with him in the past, notably Elizabeth Warren. However, the accuracy of Zywicki's criticism has been called into question.

Zywicki has been editor of the Supreme Court Economic Review since 2006. He previously served as editor from 2001 to 2002. The Supreme Court Economic Review is ranked second among all law and economics journals in citation impact studies.

Zywicki clerked for Judge Jerry Edwin Smith of the U.S. Court of Appeals for the Fifth Circuit and worked as an associate at Alston & Bird in Atlanta, Georgia, where he practiced bankruptcy law. He received his J.D. from the University of Virginia (1993), where he was executive editor of the Virginia Tax Review and John M. Olin Scholar in Law and Economics.

Zywicki was a leading supporter of the Bankruptcy Abuse Prevention and Consumer Protection Act, which was enacted in 2005 with substantial bipartisan majorities in both houses of Congress. One judge faced with interpreting the law stated that one section was "one of many examples of poor drafting in the new bankruptcy law, which Professor Todd Zywicki assured the Senate Judiciary Committee was 'fine as it is,' adding, 'There is no word that I would change in this particular piece of legislation.'” In re Kane, 336 B.R. 477 (Bkrtcy. D. Nev. 2006). Zywicki claims the quote was taken out of context. He says his comment referred to whether the bill had become obsolete after having been drafted eight years earlier, and not to whether it had technical glitches.

Zywicki is the author of more than 50 articles in law reviews and economics journals. He is a frequent commentator in print and broadcast media and a regular contributor to The Volokh Conspiracy blog. He is a frequent contributor to the media. In a column in The Wall Street Journal in December 2008 Zywicki criticized proposals to bail out the American auto industry, arguing that they should file Chapter 11 instead. In a column in The Wall Street Journal in February 2009, Zywicki criticized proposals to permit bankruptcy judges to modify mortgage contracts. He has also appeared frequently on television and radio.

Dartmouth Board of Trustees

Zywicki was elected to the Board of Trustees of Dartmouth College in 2005. Speaking as a trustee, he delivered prepared remarks on the topic of university governance to a conference presented by the Pope Center for Higher Education Policy in October 2007. Zywicki's remarks were critical of the board and included a controversial statement about Dartmouth's late former president James O. Freedman:

They then brought in this fellow, truly evil man, James Freedman, who basically, simply put, his agenda was to turn Dartmouth into Harvard. Freedmanism basically had four planks.

1. That Dartmouth should be a university rather than a college.
2. Political correctness in all forms—speech codes, censorship, and the whole multicultural apparatus.
3. Comprehensive social engineering of student life and replacement of the Greek system for instance.
4. And a de-emphasis on Dartmouth's traditional values of educating well rounded leaders in favor of creative loners.

Other controversial statements included:

And I think what you have to understand is that those who control the university today they don't believe in God and they don't believe in country. University is their cathedrals.

So Democracy having not worked properly, this fall they decided to follow the Hugo Chavez form of democracy and simply impose...

And what we saw in September was that the Empire struck back. They rolled the tanks into Tiananmen Square. And basically they couldn't win at the ballot box and so they got rid of the ballot box.

The new dogma is environmentalism and feminism and that is the dogma and they will enforce it viciously. We have the Spanish inquisition and you could ask Larry Summers whether or not the Spanish inquisition lives on academic campuses today. So that's why the first point is that we are either all in or we're not. It's going to be a long and vicious trench warfare, I think, if we are serious about taking the academy back.

You know $10 million or a million dollars is chump change at Dartmouth; that's a transformative gift to ... a place like George Mason Law School or the George Mason Economics department or these other pearls, these other places around the country, these alternative institutions that I think need to be supported.

In December 2007, the board reprimanded Zywicki for his remarks. According to a public announcement of the reprimand, "The Board concluded that he had exercised poor judgment and had violated his responsibilities as a Trustee of Dartmouth College, which include acting in the best overall interests of Dartmouth and representing Dartmouth positively in words and deeds." No other trustee has been reprimanded in recent memory. The trustees voted not to re-elect Zywicki at the end of his first term, though re-election is usually routine.

Education

• A.B., Dartmouth College
• M.A., Clemson University (Economics)
• J.D., University of Virginia

External links

• Professor Zywicki's Home Page at the George Mason Law School.

Publications and media

• Farnsworth, Elizabeth, Todd Zywicki, and Karen Gross. "Going for Broke". NewsHour with Jim Lehrer. Interview transcript. 17 May 1999. URL accessed 15 August 2006.
• Ifill, Gwen, Todd Zywicki, and Travis Plunkett. "New Bankruptcy Law. NewsHour with Jim Lehrer. Interview transcript. 17 October 2005. URL accessed 15 August 2006.
• Zywicki, Todd. "Bankrupt Criticisms: The bankruptcy bill deserves to pass". National Review Online. 15 March 2005. URL accessed 15 August 2006.
• —. "The Economics of Credit Cards." Working paper. George Mason University School of Law, 2000. URL accessed 15 August 2006.
• —. "The Nature of the State and the State of Nature: A Comment on Grady & McGuire's The Nature of Constitutions. Working paper. George Mason University School of Law, 2000. URL accessed 15 August 2006.
• —, ed. The Rule of Law, Freedom, and Prosperity. Sup. Ct. Econ. Rev. Vol. 10. Chicago: University of Chicago Press, 2003. ISBN 0-226-99962-9.