Law Commons^™

Bankruptcy Policymaking In An Imperfect World, Elizabeth Warren

Michigan Law Review

This essay is about bankruptcy policy. It attempts to articulate a comprehensive statement about the various and competing goals that underlie the bankruptcy system. The essay offers both a positive observation, drawn from the Code and its operation, and a normative evaluation, designed to outline the difficult value judgments that comprise the bankruptcy system. It also serves warning: before commentators propose any sweeping changes or policymakers take seriously any suggestions to scrap the system, they must consider the impact of such proposals on a number of competing normative goals.

Bankruptcy Courts And Stare Decisis: The Need For Restructuring, Jeffrey J. Brookner

University of Michigan Journal of Law Reform

Part I of this Note provides background by summarizing the rules of stare decisis. Part II refutes the contention that the present court structure allows bankruptcy judges not to follow domestic district court precedent. Part II asserts that, in pursuit of legitimate ends, bankruptcy judges have employed illegitimate means. Finally, Part II contends that bankruptcy judges are better equipped to make bankruptcy decisions than district judges. Part III concludes that the bankruptcy system should be restructured to allow bankruptcy judges to make decisions without being constrained by district court precedent or appeals. Such reform could achieve the substantive goals desired …

The Fantastic Wisconsylvania Zero-Bureaucratic-Cost School Of Bankruptcy Theory: A Comment, James W. Bowers

Michigan Law Review

In two recently published articles, Wisconsin Law Professor Lynn LoPucki and Pennsylvania Law Professor Elizabeth Warren, nearly simultaneously, fired the latest shots in one of academia's hottest ongoing debates: whether any good reason for having bankruptcy law exists. Justice Holmes once opined that the future belonged to the lawyer skilled in statistics and economics. LoPucki and Warren apparently agree about statistics but argue that, in a world with positive transaction costs, economic theory has little to contribute to our understanding about the justifications for bankruptcy law.

I write to highlight what one might easily overlook in LoPucki's and Warren's pieces. …

Preference Conundrums, James J. White, Daniel Israel

Articles

Every law teacher and many law students and practitioners understand the intellectual sport to be found in Section 547 on preference law. Because the preference rules are so intricate, rigorously logical-but really not logical-they command more than their fair attention, not only in law school but also in continuing legal education and even in the courts. Our purpose in this article is not to answer any of the difficult questions or to give a global explanation of preference law. Rather it is to confront a few of the conundrums in Section 547 and to follow the paths of those conundrums …

Revising Article 9 To Reduce Wasteful Litigation, James J. White

Articles

For reasons that are unclear to me, the committees reviewing the articles of the Uniform Commercial Code and drafting revisions are congenitally conservative. Perhaps these committees take their charge too seriously, namely, to revise, not to revolutionize. Perhaps their intimate knowledge of the subject matter exaggerates the importance of each section and consequently magnifies the apparent size of every change. In any case, my own experience with two such committees tells me that the members quickly become focused on revisions and amendments that any outsider would describe as modest. To the extent that the revision of any of the articles …