What Should Judges Do in Chapter 11?

18 Pages Posted: 30 Apr 2015

See all articles by Melissa B. Jacoby

Melissa B. Jacoby

University of North Carolina School of Law

Date Written: November 14, 2014


This piece contends that doctrinal corporate bankruptcy reforms, however wise, will be incomplete without deeper consideration of the role of various institutional actors, particularly judges and courts. The bankruptcy system sends mixed messages to judges. Drafters of the 1978 Bankruptcy Code exhorted judges to be no more or less than umpires of discrete disputes raised by the parties. Today's bankruptcy system, however, imposes greater, and conflicting, expectations: to promote quick resolution of disputes through encouraging party settlement, but also to exercise independent oversight even if no party in interest objects - sometimes without a clear sense of how the court should gather the information to make such a judgment. These tensions are not unique to bankruptcy; they also arise in civil actions, both simple and complex, in federal district courts. Managing them, however, is essential to changing the dynamics of modern corporate bankruptcy and, therefore, to the project of reform.

Keywords: bankruptcy, chapter 11, federal courts, settlement, independent duty, managerial judging

JEL Classification: K22

Suggested Citation

Jacoby, Melissa B., What Should Judges Do in Chapter 11? (November 14, 2014). University of Illinois Law Review, 2015, UNC Legal Studies Research Paper No. 2595276, Available at SSRN: https://ssrn.com/abstract=2595276

Melissa B. Jacoby (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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