Law Review: Grosgahl, Bruce- Working to Make Bankruptcy Work: The First Hundred Years of the National Conference of Bankruptcy Judges Part II, 100 Am. Bankr. L.J. 189, 274–75 (2026).

Available at:  https://www.ablj.org/volume-100-issue-2/

Bankruptcy judges were mere “referees” under the 1898 Bankruptcy Act, with none of the protections, judicial authority, or compensation of Article III judges. Bankruptcy law little resembled what it has become. The formation of the National Conference of Bankruptcy Judges (NCBJ) 100 years ago this year was a turning point — the referees organized themselves into a formidable judicial organization and political force.  Part II of Prof. Grohsgal’s history of the NCBJ, Working to Make Bankruptcy, picks up where Part I left off, with the NCBJ’s not inconsiderable role in the enactment of the Bankruptcy Code which gave the judges 14-year terms and proper judicial authority.  It then turns to Chief Justice Burger’s unsuccessful effort in 1984 to strip the bankruptcy judges of their judgeships, and the NCBJ’s success later that decade in achieving stable and reasonable (if unequal) compensation for bankruptcy judges.  Part II concludes with considering how and why the NCBJ’s role has changed somewhat since then, and some of the challenges that it now faces and likely will face in the future.

Summary & Commentary

Bruce Grohsgal’s Working to Make Bankruptcy Work: The First Hundred Years of the National Conference of Bankruptcy Judges, Part II, 100 Am. Bankr. L.J. 189 (2026), is both a history of the National Conference of Bankruptcy Judges and, in substantial part, a history of the modern bankruptcy system itself.

It is also often a surprisingly collegial and humorous history. Grohsgal relies heavily on the recollections and oral histories of bankruptcy judges who were personally involved in these battles, and the personalities come through. The article even includes photographs of bankruptcy “referees” embracing the title quite literally—appearing in full black-and-white striped football-referee regalia rather than the black judicial robes that bankruptcy referees were then beginning to adopt as part of their campaign to be recognized as genuine judicial officers. The institutional history is serious, but Grohsgal does not drain it of the personalities, friendships, rivalries, and occasional absurdities that accompanied it.

The NCBJ was founded in 1926 as the National Association of Referees in Bankruptcy, with the goals of improving cooperation among bankruptcy referees, educating its members, and improving bankruptcy administration.

Part II focuses heavily on the battles of the 1960s, 1970s, and 1980s over the status and independence of bankruptcy judges. The NCBJ pushed for greater judicial authority, better compensation, and ultimately Article III status. Chief Justice Warren Burger vigorously opposed giving bankruptcy judges Article III protection, even personally lobbying senators and later urging President Carter to veto the compromise legislation.

Congress nevertheless enacted the Bankruptcy Reform Act of 1978, giving bankruptcy judges fourteen-year terms and dramatically expanding the modern bankruptcy court system.

Perhaps the most remarkable episode came after Northern Pipeline v. Marathon. Following Congress’s 1984 jurisdictional fix, the Administrative Office of the United States Courts effectively attempted to eliminate the office of bankruptcy judge, offering the judges positions as “special magistrates” or “consultants” instead. The NCBJ and several bankruptcy judges fought back in court and preserved the judiciary Congress had created. The organization later helped secure salaries tied to those of district judges and statutory retirement benefits.

Grohsgal also asks an interesting question: why was the NCBJ so influential in bankruptcy legislation during its earlier decades but seemingly less successful in more recent fights, including its opposition to BAPCPA and its support for residential mortgage modification during the foreclosure crisis?

His answer is largely institutional restraint. Bankruptcy judges remain judges, not legislators, and the NCBJ has understandably been most assertive when judicial administration, independence, or the functioning of the bankruptcy system itself is at stake.

But Grohsgal’s history also suggests that there may be value in the NCBJ returning, at least to some degree, to a more active legislative role.

That would not necessarily mean choosing substantive winners and losers. It could instead mean bringing the practical experience of bankruptcy judges more directly to Congress when proposed legislation would make the bankruptcy system work better—or when existing law plainly does not.

The National Bankruptcy Conference offers a useful comparison. It has continued to advance concrete statutory proposals, including a proposed new 11 U.S.C. § 708 that would permit carefully regulated postpetition payment of Chapter 7 attorneys’ fees.

The proposal would allow a prepetition fee agreement to remain enforceable after discharge only with substantial safeguards, including full disclosure, court review of reasonableness, restrictions on interest, assignment, liens, and collection, and continuing court supervision.

Similarly, revisions to the Bankruptcy Code’s treatment of student loan discharge are an area where the practical experience of bankruptcy judges could materially improve the law. Bankruptcy judges see, case after case, how these statutory rules actually operate for debtors, creditors, trustees, attorneys, and the courts.

Greater NCBJ involvement in proposing or supporting carefully considered reforms in areas such as Chapter 7 attorney compensation or student loan discharge could therefore do more than merely revive an earlier tradition. It could both honor the organization’s history and help produce better bankruptcy laws.

That role would not make the NCBJ just another bankruptcy trade association. Its institutional credibility comes precisely from the expertise and neutrality of its members. Used carefully, that credibility could make a more active legislative role particularly valuable.

That history is especially timely because this week is the NCBJ Annual Conference in San Diego, during the organization’s 100th anniversary year.

Grohsgal closes by emphasizing that, despite enormous changes in bankruptcy law and practice, the NCBJ has continued to serve as a forum for collegiality, education, and the exchange of ideas. At the start of its second century, the question may be whether it should also reclaim a little more of the legislative ambition that helped shape its first.