Governing Debt’s Dominion: Then and Now, Here and Abroad

Widely regarded as a landmark in bankruptcy scholarship, Professor David Skeel’s Debt’s Dominion charts the evolution of American corporate bankruptcy law and the forces that have governed it.1 In this seminal work, Skeel traces federal bankruptcy laws from their roots in the U.S. Constitution through their development over the twentieth century, detailing the political dynamics that shaped their scope and administration. Among those dynamics, he identifies the emergence of a specialized bankruptcy bar as one of the most influential forces shaping the law. As he explains, “bankruptcy professionals have spearheaded a relentless expansion of both the scope of the bankruptcy laws and their own prominence.”2 Skeel’s work thus offers an account of how lawyers and judges came to govern debt’s dominion in the United States. The BYU Law Review’s 2024 Symposium, titled “Who Governs Debt’s Dominion?” celebrated Skeel’s foundational contribution to bankruptcy scholarship. Nearly twenty-five years after his influential book was published, scholars came from across the nation to consider the role of bankruptcy professionals in shaping corporate reorganization and the extent to which Skeel’s observations remain compelling. As the articles and essays contained in this symposium issue demonstrate, bankruptcy professionals still contribute to the evolution of bankruptcy law in an outsized way. Furthermore, the significance of bankruptcy professionals—then and now, here and abroad—remains a fertile ground for new insights and scholarship

Bankruptcy Judging After Williamson

This Essay asks how bankruptcy judges ought to orient their substantial, statutory discretion in business reorganization cases. The motivating observation is that bankruptcy law enacts a kind of forced integration of productive assets. To shed light on the contemporary problems that bankruptcy judges face, I thus look to two classic approaches to the economic theory of the firm—from Oliver Williamson and from Oliver Hart. I conclude that nonjudicial institutions have largely surmounted the problems to which their theories point, leaving a different, and probably narrower, set of issues to worry about. Bankruptcy judges who have a notion that their job is, in part, to push parties to a “deal” should instead focus on policing efforts by some of a debtor’s investors to capture value from a recapitalization deal to which their pre-distress bargain does not entitle them

Disinterestedness in Bankruptcy Cases: Does It Really Matter?

The title of this Essay asks whether disinterestedness (of professionals) in bankruptcy cases really matters. Spoiler alert: Yes, it really does

The Bankruptcy Judge and the Generalist Tradition

The prevailing academic consensus is that bankruptcy judges are specialists presiding over specialized courts. This Article contends that this description is incomplete and, in some respects, inaccurate. Drawing on scholarly models of judicial specialization and historical surveys of the field, this Article contends that bankruptcy judges reflect a hybrid design choice: procedural specialization combined with substantive generalism. This model delivers many of the observed benefits of judicial specialization (including efficiency and technical competence) while preserving the cross-pollination of ideas and other benefits associated with the generalist tradition of American judging. This Article also reflects on contemporary developments—most notably the rise of the “complex case panel” that attracts a disproportionate number of large public company reorganizations. This trend has resulted in a handful of bankruptcy judges serving as de facto reorganization specialists. In doing so, it has disrupted the generalist design of the bankruptcy courts by increasing case concentration and attendant risks, including tunnel vision. By recharacterizing the bankruptcy judges as generalists as well as specialists, this Article offers a fresh lens for evaluating decision makers in the field. It also contributes to the broader literature on judicial specialization. Previous accounts have emphasized that particular institutions exist along a continuum between true generalism and focused specialization. Through a focus on the bankruptcy field, this Article suggests that procedural and substantive expertise represent separate and potentially independent dimensions of specialization

Elite Bankruptcy

“The influence of bankruptcy lawyers over bankruptcy law seems almost inevitable.” —David Skeel In Debt’s Dominion, David Skeel wrote that bankruptcy professionals have played a key role in shaping U.S. bankruptcy law. He predicted that these professionals would continue to shape the bankruptcy process long into the future. Today, we can see that Skeel’s prediction has come true. Although Congress has yet to overhaul the Bankruptcy Code, bankruptcy professionals have succeeded in their own form of overhaul by creating what this Essay calls “elite bankruptcy:” a type of bankruptcy accessible only to the rich and powerful. Elite bankruptcy is practiced only in pockets of the country and by a relatively small group of law firms and judges. Elite bankruptcy tackles some of the most complex issues of the day and allows lawyers and judges to exercise their creativity in addressing those issues. Elite bankruptcy has even provided bankruptcy professionals with the opportunity to influence other areas of law. This Essay explores how bankruptcy professionals created elite bankruptcy and analyzes the consequences of elite bankruptcy’s existence. Is elite bankruptcy a successful product of the bankruptcy system’s natural creativity and flexibility, or is it a failure of the system and its guardrails? This Essay seeks to unpack that question and, in doing so, it continues Skeel’s important work in understanding how bankruptcy professionals shape the law

Specialization and the Permanence of Federal Bankruptcy Law

Traditional historical accounts posit that federal bankruptcy specialization in the United States first developed under the system established by the Bankruptcy Act of 1898. That view assumes that the structural and temporal conditions necessary to foster specialization did not exist under the nation’s earlier federal bankruptcy systems—those created by the Bankruptcy Acts of 1800, 1841, and 1867. This Article theorizes that federal bankruptcy specialization very likely occurred under the pre-1898 systems and marshals evidence to that effect, primarily focusing on the Bankruptcy Act of 1841 (the 1841 Act). That statute marked a critical turning point in federal bankruptcy law, shifting its primary focus to debtor relief and granting federal district courts substantial policymaking authority and administrative responsibilities to effectuate the law’s reorientation. Drawing on a detailed framework for assessing specialization, this Article shows how the surge of cases under the 1841 Act reshaped the operation of federal district courts, producing a specialized judiciary that facilitated specialization among attorneys and other legal professionals through the creation of patronage networks. Recovering this history invites a broader investigation into federal bankruptcy specialization before 1898, not merely to determine whether it existed, but to reconsider the extent to which it was a causal factor in the emergence of a durable bankruptcy regime in the twentieth century