Effross, Walter

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Digital Commons @ American University Washington College of Law

American University Washington College of Law Digital Commons @ American University Washington College of Law Articles in Law Reviews & Other Academic Journals Scholarship & Research 1998 Hard Numbers vs. House Rules: Uniformity in the Bankruptcy Code and Its Application Walter Effross Follow this and additional works at: https://digitalcommons.wcl.american.edu/facsch_lawrev  Part of the Bankruptcy Law Commons AMERICAN BANKRUPTCY INSTITUTELAW REVIEWVOLUME 6 SPRING 1998 NUMBER 1INTRODUCTION"Hard Numbers vs. House Rules:Uniformity in the Bankruptcy Code and Its Application"Walter A. Effross*I've always thought that good bankruptcy lawyers and good poker players havea lot in common. Both groups are masters of procedures, probabilities, andpsychologies. But both also know that the formal rules of their system, whether setdown in the Bankruptcy Code or "according to Hoyle," are inevitablysupplemented by "house rules" that evolve from the interactions of the playersthemselves.In different ways, each of the articles in this Symposium confronts the policyconflicts between standardization and differentiation. As Jean Braucher points outin examining the National Bankruptcy Review Commission's approach toconsumer bankruptcy, the lack of bankruptcy uniformity can be attributed in part tothe options permitted by and the ambiguous standards set by the Code itself. (Thestatute's ambiguities are the subject of, David Gray Carlson's article on the Code'stheory of property and my own analysis of the Code's "fuzzy logic.")Braucher also discusses the "local cultures" spawned by repeated interactionsamong the members of the bankruptcy bar and bench in each jurisdiction. In hisempirical examination of local legal cultures both in the United States and Europe,Jay Westbrook suggests that the broad discretion apparent in the laws of both areasstems from the drafters' fear that consumers will abuse their right to be dischargedfrom debt. Yet Bruce Markell observes that in the business context the creditors'fear of a debtor's discharge is leading to an emergence of "supply chain financing,"quietly creating a separate culture that will be an alternative to traditional businessbankruptcies.Juliet Moringiello agrees with Braucher that a leading cause of divergencies isthe incorporation into federal bankruptcy law of the individual states' own rules on" Associate Professor of Law, American University. As the 1997-98 Chair of the Creditors' and Debtors'Rights Section of the Association of American Law Schools (AALS), Professor Effross organized andmoderated the January 1998 AALS panel discussion on Uniformity in Bankruptcy, for which the majorityof these articles were prepared.ABILAWREVIEW [Vol. 5:ibankruptcy exemptions. Similarly, Nancy Rapoport proposes a uniform code ofethics for bankruptcy lawyers to replace the patchwork quilt of states' ethics codes.No discussion of local legal culture in this context would be complete withoutmentioning the recent death of Barry Zaretsky of Brooklyn Law School. In manyways Barry shaped the perspectives and insights of his colleagues both in academiaand in practice. He will be missed.

Hard Numbers vs. House Rules: Uniformity in the Bankruptcy Code and Its Application

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Hard Numbers vs. House Rules: Uniformity in the Bankruptcy Code and Its Application

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