Private Law Theory

ABSTRACT
Michelle owes $15,000 to a bank for credit card debt. Reid owes $15,000 to Memphis Memorial, a private hospital. Shirley owes $15,000 to the Raleigh Housing Authority. Josh owes $5,000 to the state of Louisiana and $10,000 to the Internal Revenue Service. Each debtor owes the same amount. None of them can afford to pay. From their perspective, the debt is the same. But the law does not treat these four debtors the same. The law provides them with widely divergent protections and affords their creditors different collection tools. Michelle, Reid, Shirley, and Josh experience their debt and its collection differently because the ‘law of individual debt’ is comprised of aspects of various doctrines, including contract, tort, consumer, civil rights, bankruptcy, tax, and constitutional law.

This Article reveals and explains how relevant aspects of these doctrines combine to allow for divergent experiences for four similarly-situated debtors. This Article then argues that the law of individual debt is organized around (1) the identity of the creditor and (2) whether the creditor voluntarily contracted to extend credit to the debtor. With that context, it offers an organizational structure to describe this phenomenon – a ‘debt ladder’ comprised of (1) private voluntary debt, (2) private involuntary debt, (3) public voluntary debt, and (4) public involuntary debt. Mapping debtor protections and creditor powers across the four rungs leads to a shocking conclusion: when descending the debt ladder, legislators have simultaneously decreased debtor protections while increasing creditor powers. This places public involuntary debtors at the bottom of the ladder in an untenable position-suffering under crushing debt and subject to punitive collection tools. After having excavated the law, developed the scaffolding, and mapped the effects, this Article challenges scholars and policymakers to consider whether the whole is worth the constituent parts.

Elengold, Kate, It’s All Debt To Me (February 1, 2026), UC Davis Law Review (forthcoming 2027).