Article   |   Volume 166, Issue 7

A Retrospective Look at Bankruptcy's New Frontiers

By
166 U. Pa. L. Rev. 1867 (2018)

December 2018












It is something between awkward and an honor to be asked, as the creators of this Symposium did, to be the keynote speaker at a gathering called “Bankruptcy’s New Frontiers.” The Symposium, by its very title, is—wholly appropriately—about where bankruptcy is going, and investigating, as well as celebrating, the enormous creativity, hard work, and genius of those who are at the cutting edge of helping bankruptcy law evolve to its “new frontiers.” In that, I am at best a minor player from the perspective of 2017, notwithstanding my recent work in a side area dealing with bankruptcy and SIFIs—systemically important financial institutions—and despite a couple of energizing (for me, at least) pieces with David Skeel over the past half‐dozen years. That doesn’t account for the honor.

So, I am resigned (at least in part) to the idea—and hence the awkwardness—that my invitation here, as the keynote speaker, has less to do about my role in the future than the past—although one of my guiding beliefs as an academic has always been that all scholarship is never definitive, but is about moving the ball forward so that others, with new and different insights, can pick the ball up and run with exciting, pathbreaking scholarship. The best of the past is a part of the future. In that, I have significant pride in thinking my work moved the ball forward, inviting a host of new, and creative, people to become involved. I am “keynote” in the sense of “let’s start with how we got to where we are, in a world in which we could reasonably talk about ‘Bankruptcy’s New Frontiers’ and gather such an incredible group of academics, practitioners, and judges.”

And, in doing this, it is, I think, important to remember that not only normative frameworks change with time but, equally, so does the world to which the frameworks are responding. The “creditors’ bargain” may have been the first comprehensive normative framework for thinking about bankruptcy law, as this Symposium postulates, but it was a product not only of the emerging scholastic work at that time, but also of the actual world—of firms, capital structures, and players—that existed at that time. In a recent piece that I resonate with (cogently entitled Three Ages of Bankruptcy), Mark Roe suggested that

we see core provisions emerging in practice, dominating for a time, and then fading in importance. Each decision‐making method has had its heyday. Each method’s rise and fall usually fit with underlying market conditions and basic bankruptcy goals, sometimes mapped to political ideology currents, and often reflected the influence of powerful groups, such as well‐organized creditors.

That is, I believe, true not just of practice but of normative frameworks that respond to the world as we see it. It is an appropriate time to take stock of changes in organizations and practices, as well as theory and new analytical tools, to see to what extent what was novel, perhaps revolutionary, and perhaps normatively persuasive, thirty to forty years ago, needs ongoing adjustment and reform—exactly the work that those gathered here tonight have been so engaged in over the past twenty years.

But as this Symposium, so appropriately, does exactly that, it is at least interesting, and perhaps worthwhile, to travel back forty years in time when, I dare say, there wouldn’t have been such a star‐studded conference about “Bankruptcy’s New Frontiers.”

A Retrospective Look at Bankruptcy's New Frontiers - PennLawReview.com

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The Creditors' Bargain Revisited

Barry E. Adler