Halting, Altering and Agreeing
Southern University Law Review, Forthcoming
48 Pages Posted: 15 Nov 2010 Last revised: 6 Dec 2010
Date Written: 2011
Utilizing Felstiner, et al.’s Naming, Blaming and Claiming as a conceptual framework, I argue that the Chapter 11 bankruptcy process represents a dispute transformation mechanism. Disputes are transformed through a series of stages I call Halting, Altering and Agreeing. This transformative dispute process can be conceptualized as a form of disputing that accomplishes many of the goals of ADR, while avoiding the ideological and substantive critiques outlined by Harrington, Engle Merry, Yngvesson, and others. Finally, the development of this dispute mechanism is historically situated in light of the transition to the modern form of contract law and welfare state considerations as outlined by Collins’ corporatist model, Friedman’s conception of welfare state expansion being fueled by changes in legal culture and changing expectations of what government can do, and Kamenka and Tay’s notion of an emphasis on Gemeinschaft and bureaucratic administrative concerns.
Keywords: Chapter 11, Bankruptcy, Dispute Transformation
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