The Past, Present, and Future of Bankruptcy Law in America

As this Review was being written, Congress once again failed to pass the bipartisan bankruptcy-reform bill, although many expect it to be enacted at some point in the near future. At the same time, WorldCom, Enron, Global Crossing, and their ignominous peers continue to set records for the size, expense, and public attention drawn to business bankruptcy. For the first time, consumer bankruptcies surpassed the 1.5 million per year mark, continuing an irresistible upward trend. Meanwhile, law firms announce layoffs and salary freezes in most departments, and bankruptcy professionals prosper amidst the despair, billing $1 million per day on the Enron case alone – even as creditors and shareholders sit by awaiting payment. Clearly we are witnessing a profound and unprecedented change in the political, social, and economic framework of bankruptcy. How did we get here and where are we headed? These are the questions brilliantly addressed by David A. Skeel, Jr., in Debt’s Dominion: A History of Bankruptcy Law in America. Told with a sound understanding of theory and law, and an eye for detail, Skeel’s book is an instant classic – a comprehensive and intriguing history of bankruptcy law in America. But to characterize the book as “history” is to slight its reach and importance. In a concise and readably 250 pages, Skeel brings to life not only the political and economic history of bankruptcy law, but also the fascinating history of the bankruptcy bar itself. Finally, Skeel deftly leads the reader through the fundamental theoretical debates that have shaped bankruptcy law during the past century, including the contentious intellectual debates between “Progressive” academic theorists and their rivals from the “Law and Economics School.” Skeel has written a book that will serve as both the definitive work on the history of bankruptcy law for bankruptcy experts as well as a comprehensive guide on the development of the modern American bankruptcy system for the interested generalist in law or business. This Review considers the past, present, and future of bankruptcy law through the lens of Skeel’s analysis. Part I provides an overview of Skeel’s historical thesis, including the novel theoretical methods he uses to advance his analysis. Part II examines the current state of bankruptcy law, focusing particularly on the political and economic battles involving bankruptcy reform during the past several years. Part III considers Skeel’s predictions as to the future evolution of bankruptcy law and practice in America and abroad.