The Market for Bankruptcy Courts: A Case for Regulation, Not Obliteration

Abstract

Large corporate debtors typically file for bankruptcy only after conducting a thorough analysis as to the most favorable venue for the case. Recent legislation has proposed to severely limit all corporate debtors’ ability to select bankruptcy venue. The messaging behind calls for venue reform is outwardly altruistic: it is said to be necessary to facilitate access to justice and to prevent abuse of the system. However, the push for venue reform is largely driven by professional envy and a distrust of specific judges based on unpopular high-profile rulings. Placing new constraints on the ability to choose venue will not achieve the reform’s stated goals and may instead harm debtors and their creditors by limiting their ability to have complex bankruptcy issues heard in the venue to which they are best suited. A better approach is to facilitate a market selection process in which both debtors and creditors can participate, simultaneously enacting reforms that will facilitate creditor involvement and encourage uniformity among courts in matters of substantive and procedural law.

Keywords: bankruptcy, venue, venue reform, forum shopping, access to justice, bankruptcy bar, creditors, legislation