Law Review: Seymour, Jonathan- Bankruptcy in Conflict

Available at: https://ablj.org/bankruptcy-in-conflict-vol-98-issue-3-pdf/

Abstract:

In a continuation of his criticism of the claim of bankruptcy exceptionalism, in his symposium article Bankruptcy in Conflict, Professor Jonathan Seymour discusses three potential consequences to so-called bankruptcy specialization. Utilizing artwork from the New Yorker’s View of the World, he examines how the self-characterization as specialists can result in bankruptcy lawyers’ viewing ordinary legal issues through the proverbial camera-lens of bankruptcy. Seymour next applies recent Supreme Court trends away from deference to specialized courts or agencies to utilize their knowledge to fill gaps in governing law in support of his argument that we must move from a telephoto to panoramic lens. Finally, with these concepts in mind, he considers how these two principals are seen in recent Supreme Court decisions resolving conflicts between statutes, specifically the need for the removal of the filter on a lens that severely limits consideration of policy considerations. At its core, Seymour highlights a need for bankruptcy specialists to reconsider their lens selection and reframe their view on the world away from exceptionalism and towards resolving bankruptcy contests using ordinary (and not extraordinary) tools of statutory interpretation.

Commentary:

This article  betrays its prejudice through the  general omission of "corporate"  as a preceding descriptive adjective.  Whether in statements  that "only a handful of ... judges sit on the courts that handle the bulk of the largest corporate  (omitted in the original) cases that set the trends of practice"  or that "the needs of corporate   (omitted in the original)  bankruptcy often do 'win' when faced  with actual of perceived conflict with norm, objectives or even substantive rules from outside the world of corporate   (omitted in the original)  bankruptcy",  the assumption that corporate bankruptcy is the real bankruptcy whereas the word "consumer"  is only mentioned four times,  briefly in passing,  despite the vastly greater number of bankruptcy cases being consumer case rather than the infrequent corporate ones.

This persistent academic bias may come from the greater  prestige assigned to corporate cases,  including from tenure committees. Related is  the fact that corporate attorneys,  with hourly rates  reaching astronomical heights in excess of $2,500 an hour in those trend setting districts,  are able to generously donate both to law schools and other organizations,  while consumer  bankruptcy lawyers are pilloried for making a pittance in comparison.

This leads  to missed opportunities,  including in the present article to discuss how in the Supreme Court's  Midland Funding, LLC v. Johnson decision,  bankruptcy rules  "won"  over the Fair Debt Collections Practices Act.  Related as this is to Prof.  Pamela Foohey's article (in the same issue), The Periphery of Bankruptcy Law: The Importance of Non-Bankruptcy Issues in Consumer Bankruptcy,  it would both have been a nice bit of cross-promotion byt the American Bankruptcy Law Journal,  but would have also allowed insight into how even Supreme Court Justices  inexplicably  deferred to the bankruptcy expertise of Chapter 13 trustees by holding that the FDCPA did not apply "where a knowledgeable trustee is available" to protect against illegal Proofs of Claim.

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