The Supreme Court's 1935 Ivanhoe decision created the specter of undue multiplication of claims, particularly in bankruptcies that involve large business enterprises conducted through many separate legal entities. Ivanhoe should be overruled on its own facts, but even if it is not, its extension to other situations is indefensible. Until overruled, Ivanhoe is properly limited to creditors secured by nondebtor collateral, foreclosure of which does not give rise to reimbursement or subrogation claims against the bankruptcy estate. While even in that case Ivanhoe overcompensates the creditor, such cases are rare and do not entail large-scale multiplication of claims against bankruptcy estates. If Ivanhoe is so limited, co-debtor liability among insolvent estates can be dealt with through a form of marshaling described in this Article. Otherwise, the practical second-best solution to the multiple claims problem is likely to remain liberal reliance on the substantive consolidation doctrine.

This paper critiques Brook Gotberg’s recent proposal to reform preference law by creating a new safe harbor for preferences in chapter 11 while repealing certain existing preference defenses in chapter 7. The proper path of reform in this area would preserve preference recovery as a feature of chapter 11 reorganization law while raising the monetary limits on minimum recoveries, restricting financial contract safe harbors and bolstering ordinary trade creditor defenses across both chapter 11 and chapter 7.

For twenty-five years, the California Supreme Court has operated under a bizarre internal operating procedure that requires majority opinions to be written and agreed to prior to oral argument. This procedure squanders and demeans the parties’ formal opportunity for appellate argument, is inconsistent with traditional common law appellate process, and violates the state and federal Constitutions.

This Rejoinder defends the thesis of Opinions First -- Argument Afterwards by addressing criticisms raised by Justice Goodwin Liu in his forthcoming article How the California Supreme Court Actually Works: A Reply to Professor Bussel, 61 UCLA Law Review (2014).

This article defends the longstanding practice of the bankruptcy courts authorizing Creditors' Committees to prosecute specified causes of action on behalf of Chapter 11 bankruptcy estates in particular circumstances against theoretical criticisms of that practice that have emerged in the wake of the decisions in Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1 (2000) and Official Committee of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548 (3d Cir. en banc 2003).

This Article presents new empirical evidence bearing on the efficacy of textualism as a method of statutory interpretation. The data set consists of all bankruptcy decisions superseded by amendments to the Bankruptcy Code 1978-1998 (N=58), but the results have meaningful implications for theory and practice in interpreting statutes outside the bankruptcy field as well. Analysis of the bankruptcy decisions indicates that the cases subsequently overruled by statute are much more likely to adopt textualist methods of interpretation (p<.001) than randomly selected cases. If rational and efficient development and administration of complex statutory schemes in a manner consistent with democratically selected policies is the primary goal of interpretation, this evidence supports judicial reconsideration of textualism and should reinforce pragmatists' commitment to pragmatic interpretation. Analysis of legislatively overruled bankruptcy decisions also lends insight into other variables (including court, region, age, prevailing party and chapter) associated empirically or theoretically with statutory overruling and the efficacy of legislative error-correction by amendment.

“Litigate or settle” is the choice generally available to disputants in American courts, including federal bankruptcy courts. In authorizing examiners, however, the Bankruptcy Code provides one very specific procedural device peculiarly suited to introduce inquisitorial process into a chapter 11 case. Until recently, examiners were seldom employed, and even when employed were not a true inquisitorial alternative to “litigate or settle.” Rather, examiners would determine the legal sufficiency of a disputed claim but not opine on the merits or undertake to resolve factual disputes. In "A Third Way: Examiners As Inquisitors," 90 Am. Bankr. L. J. 59 (2016), I identify and assess an emerging new approach to the bankruptcy examiner’s role. While not quite fully embracing an inquisitorial alternative to traditional bankruptcy dispute resolution, In re Tribune Co. and a series of post-Tribune investigations show that inquisitorial methods may be productively employed in certain large bankruptcy cases to resolve complex legal disputes. It may well be that chapter 11 examiners are the perfect persons to launch the inquisitorial experiment in American civil process. This Symposium Article discusses the professional responsibility implications of conducting an inquisitorial-style bankruptcy examination. The inquisitorial bankruptcy examiner faces unique ethical quandaries and considerations, and requires a code of ethics tailored to his role if he is to fully achieve the promise of improving chapter 11 through the introduction of inquisitorial investigative methods. This Article points the way towards developing guidelines to regulate the conduct of examiners that mitigate real, potential and perceived abuses, and further the legitimacy of such investigations.

For thirty years, American lawyers have labored under an onerous dis-qualification rule precluding them from being “directly adverse” to a client in a matter unrelated to that on which the client has engaged the lawyer. The rule is ahistorical, idiosyncratic, and has led to anomalous and untoward consequences. It derives from a misconception of the lawyer’s role and duty. It should be abrogated.

In bankruptcy, business realities collide with legal rules that themselves create conflicting rights. Unsurprisingly, accommodations are made. Consent bridges gaps among conflicting legal rules and business realities, justifying pragmatic solutions to problems that could not otherwise be imposed under prevailing legal rules. Consent’s transformative power is so essential to the bankruptcy process, that resort to consent, in principle and in rhetoric, is reflexive in bankruptcy. Manufacturing consent to support practical accommodations, rather than simply mirroring prebankruptcy entitlements, is at the heart of bankruptcy law as it has evolved in the United States. Bankruptcy uses a panoply of tools to generate consent: inertia, ambiguity, proxies, relaxed standards for establishing consent, novel procedures and institutional structures, and new substantive rights. New circumstances in the twenty-first century, and the teachings of experience, require close reexamination of how consent operates in bankruptcy, including whether certain consent requirements should be further relaxed or tightened. We critique current consent standards and practices in connection with (i) home mortgage modification; (ii) the one-consenting-class rule; (iii) sale free and clear orders; (iv) third-party releases; (v) sales of substantially all assets; (vi) balloting of conflicted parties; and (vii) proxy consents by official creditors’ committees. Recently, most notoriously in the restructurings of Chrysler and General Motors, the advantages of reaching solutions by manufacturing consent rather than imposition have been too casually abandoned.