Available at: https://ssrn.com/abstract=6135608
Abstract:
The prevailing academic consensus is that bankruptcy judges are specialists presiding over specialized courts. This Article contends that this description is incomplete and, in some respects, inaccurate. Drawing on scholarly models of judicial specialization and historical surveys of the field, this Article contends that bankruptcy judges reflect a hybrid design choice: procedural specialization combined with substantive generalism. This model delivers many of the observed benefits of judicial specialization (including efficiency and technical competence) while preserving the cross-pollination of ideas and other benefits associated with the generalist tradition of American judging.
This Article also reflects on contemporary developments—most notably the rise of the “complex case panel” that attracts a disproportionate number of large public company reorganizations. This trend has resulted in a handful of bankruptcy judges serving as de facto reorganization specialists. In doing so, it has disrupted the generalist design of the bankruptcy courts by increasing case concentration and attendant risks, including tunnel vision.
By recharacterizing the bankruptcy judges as generalists as well as specialists, this Article offers a fresh lens for evaluating decision makers in the field. It also contributes to the broader literature on judicial specialization. Previous accounts have emphasized that particular institutions exist along a continuum between true generalism and focused specialization. Through a focus on the bankruptcy field, this Article suggests that procedural and substantive expertise represent separate and potentially independent dimensions of specialization.
Summary:
Alexander Gouzoules’ “The Bankruptcy Judge and the Generalist Tradition” is a quietly subversive article. It challenges a premise that bankruptcy lawyers, judges, and academics often take for granted: that bankruptcy judges are specialists in the same sense as tax judges, patent judges, or administrative law judges. Gouzoules’ central claim is more nuanced—and far more faithful to the lived reality of bankruptcy practice. Bankruptcy judges, he argues, are procedural specialists but substantive generalists, occupying a hybrid role that preserves the generalist tradition of American judging while delivering the efficiency and competence that specialization can bring .
This is not just a semantic exercise. Gouzoules shows that how we conceptualize bankruptcy judges has real consequences for institutional design, prestige, legitimacy, and—ultimately—outcomes.
The Core Insight: Procedural Specialization, Substantive Generalism
Gouzoules’ key move is to separate procedure from substance, something much of the judicial-specialization literature fails to do. Bankruptcy judges undeniably specialize—but what they specialize in is process:
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the automatic stay,
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claims allowance,
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plan confirmation mechanics,
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valuation,
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mediation pressure, and
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the collective-action machinery of insolvency.
On substance, however, bankruptcy judges are forced—by statute and design—to be generalists. A single docket can require facility with:
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state property law (Butner),
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tort law,
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contract law,
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labor law,
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environmental law,
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constitutional law,
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consumer protection statutes, and
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domestic relations spillover issues.
In this sense, bankruptcy judging looks far closer to Article III generalism than is commonly acknowledged. Bankruptcy courts do not replace nonbankruptcy law; they apply it through a specialized procedural lens. That distinction matters.
A Direct Contrast with Pardo: Permanence vs. Judicial Identity
This framing sits in productive tension with Rafael Pardo’s “Specialization and the Permanence of Federal Bankruptcy Law”. Pardo’s focus is institutional and doctrinal: specialization as a mechanism for entrenchment—how bankruptcy law becomes sticky, insulated, and resistant to external legal change. His concern is that specialization hardens bankruptcy into a self-referential system.
Gouzoules, by contrast, is asking a different (and complementary) question: What kind of judge is a bankruptcy judge supposed to be?
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Pardo worries about specialization as permanence.
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Gouzoules defends generalism as a design choice, one that has historically prevented bankruptcy from collapsing into a technocratic silo.
Read together, the two pieces form a warning label and a blueprint. Pardo tells us what can go wrong when bankruptcy becomes too insular; Gouzoules explains why the system was originally structured to resist exactly that outcome.
Corporate Chapter 11 vs. Consumer Bankruptcy: The Ugly Split
Where Gouzoules’ article becomes most unsettling—and most relevant for consumer lawyers—is his discussion of modern case concentration, especially in large Chapter 11s. He notes that:
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a small number of judges now function as de facto reorganization specialists,
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particularly through complex-case panels and venue concentration, and
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this development actively undermines the generalist design of the bankruptcy courts.
But the corporate side is only half the story.
On the consumer side, the specialization/generalism divide takes on a darker tone. Gouzoules explicitly refers to consumer debtors as “a long stigmatized group”, and his framework helps explain why the treatment of consumer cases in “high prestige” districts is so troubling. In places like Delaware:
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consumer cases are often segregated to one or two judges,
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while other judges remain “pure,” high-status Chapter 11 specialists,
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creating a two-tier judiciary within the same court.
That segregation is not neutral. It carries unmistakable institutional and cultural signals—about prestige, about value, and, unavoidably, about race and class. Consumer bankruptcy becomes the judicial equivalent of the service elevator: necessary, but carefully kept out of sight.
This is specialization not as efficiency, but as containment.
Why This Matters for Consumer Bankruptcy
For consumer practitioners, Gouzoules’ article is quietly validating. It provides a theoretical foundation for something consumer lawyers have long known instinctively:
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consumer bankruptcy is not “simpler” law,
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it is broader law, applied under intense procedural pressure,
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and it demands judges who are genuinely comfortable as legal generalists.
Segregating consumer cases does not just stigmatize debtors; it distorts judging. It encourages tunnel vision, reduces cross-pollination of ideas, and reinforces the false hierarchy that treats corporate distress as sophisticated and consumer distress as routine.
Ironically, Gouzoules’ analysis suggests that consumer cases may be more faithful to the generalist tradition than elite Chapter 11 practice.
Bottom Line
Gouzoules reframes bankruptcy judging in a way that should make both corporate and consumer lawyers uncomfortable—but for different reasons. Bankruptcy judges were never meant to be cloistered specialists. They were designed to be generalist judges operating inside a specialized procedural system.
When districts segregate consumer cases or funnel mega-cases to a handful of prestige judges, they are not perfecting the system—they are breaking it.
In that sense, this article pairs perfectly with Pardo’s cautionary account. One shows how specialization hardens law; the other shows how it reshapes judges. Together, they underscore a simple but powerful lesson: bankruptcy works best when it resists the temptation to become too pure, too elite, or too specialized—for anyone.
And while there is certainly no appetite in Congress or the rest of the quavering federal judiciary, this points to yet another reason (along with Alexander Hamilton's still pertinent arguments in Federalist No. 78 regarding the "steady, upright, and impartial administration of the laws") for lifetime tenure for bankruptcy judges as well.
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To read a copy of the transcript, please see:
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