Whitford, William C.

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Buffalo Law Review Volume 54 Number 2 Courting Failure? The Effects of Venue Choice on Big Bankruptcies Article 2 7-1-2006 Venue Choice: Where the Action Is William C. Whitford University of Wisconsin Law School Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Bankruptcy Law Commons, and the Litigation Commons Recommended Citation William C. Whitford, Venue Choice: Where the Action Is, 54 Buff. L. Rev. 321 (2006). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol54/iss2/2 This Introduction is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWVOLUME 54 JULY 2006 NUMBER 2Venue Choice: Where the Action IsWILLIAM C. WHITFORDtThis symposium presents papers first delivered at aconference held at Wisconsin Law School on September 9,2005. The conference was generously supported by theGeorge H. Young Chair, held by Dean Kenneth B. Davis,Jr., and the Institute for Legal Studies at Wisconsin LawSchool. The biggest contributions were the time and exper-tise of the participants, whose revised contributions to theconference follow.The conference was organized at my initiative. LynnLoPucki's work on the large case Chapter 11 reorganiza-tions began during his time here at Wisconsin. We were col-laborators in the initial work. When my work took me toother issues, LoPucki continued and expanded the work ex-tensively, as is well known by anybody who works in thefield. Courting Failure' collects together much of this workand deals with very important issues. It seemed appropri-ate that at this time Wisconsin stimulated the assessmentof LoPucki's overall contributions in this part of his work.I was also motivated to convene the conference for an-other reason. Much of the controversy that ensued immedi-ately upon publication of Courting Failure concernedLoPucki's choice of the word "corruption" to describe the ju-i Professor Emeritus, University of Wisconsin Law School.1. LYNN M. LoPucKi, COURTING FAILURE: How COMPETITION FOR BIG CASESIS CORRUPTING THE BANKRUPTCY COURTS (2005).321BUFFALO LAW REVIEWdicial behavior he is describing. Corruption is a highly pejo-rative word. It is predictable and appropriate that peoplequestion whether LoPucki was justified in his choice ofterms. That debate continues in many of the papers of thissymposium. However, this debate should not divert atten-tion entirely away from other important issues raised byLoPucki. These issues concern whether our extensive venuechoice for large Chapter 11 cases has allowed behavior byparties in bankruptcy cases (the "case placers," to useLoPucki's phrase) that effectively dictates what law appliesin these cases. LoPucki's story suggests that only courtsthat rule in particular ways get large Chapter 11 cases. Forthe most part the papers in this symposium agree with thatconclusion. Given the data that LoPucki has amassed, it isdifficult not to.Wisconsin Law School has long been identified with thephrase "law in action." If LoPucki's account is correct, thenvenue choice is by far the most important issue in large cor-porate bankruptcy cases. Scholars can, and have, debatedmany other issues-the standards for cram down againstnon-consenting interests, the terms on which to allowtrades of creditor claims in bankruptcy, the tests for ap-pointment of a trustee or examiner, to name but a few-butit is the venue choice provisions that are likely to determinehow these issues are resolved.One cannot conclude, a priori, that the extensive venuechoice incorporated into the Bankruptcy Code is bad. Likeeverything in the world, forum shopping and court competi-tion have their good effects and their bad effects. It is some-times asked whether this is a race to the top or a race to thebottom. It is both. The benefits of forum shopping ledLoPucki and me to endorse the current venue choice provi-sions when we first explored this issue in the 1980s. 2 Butthe law in action can change without any change in the lawin the books. Both LoPucki and I, independently and at dif-ferent times, have now concluded that because of changes inthe way bankruptcy law is practiced, by both courts and2. Lynn M. LoPucki & William C. Whitford, Venue Choice and ForumShopping in the Bankruptcy Reorganization of Large, Publicly Held Companies,1991 Wis. L. REV. 11, 33-51.322 [Vol. 542006] VENUE CHOICE: WHERE THE ACTION ISlawyers, for some time the harm has come to outweigh thebenefits.3One of the most disturbing parts of the story thatLoPucki tells is his account of the congressional reaction tothese changes in the law in action. Congress seems to reactin a very parochial way, without any serious considerationof the public policy issues raised by the behavior describedin Courting Failure. One might lament the usefulness of asymposium of this nature. What reason is there to believethat the decision-makers that most matter, the members ofthe Congress, will pay any attention to the debates that fol-low? The answer is that we must do what we can. And whatacademics can do is to debate important issues, attempt tonarrow the differences about what should be done thatcould be supported by any reasonable publicly spirited per-son, help keep the debates and conclusions in the publiceye, and hope for the best. This symposium is in that spirit.3. My own conversion to this position was stated publicly at a panel presen-tation at the American Bankruptcy Institute's symposium entitled "The BiasedBusiness of Venue Shopping," held on July 21, 1995 in North Falmouth, MA.323

Venue Choice: Where the Action Is

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Venue Choice: Where the Action Is

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