Bankruptcy by Another Name

Abstract

In a recent Essay, Abbe Gluck, Elizabeth Chamblee Burch, and Adam Zimmerman object to the increasing use of bankruptcy to resolve mass tort claims. They and others are concerned that bankruptcy reduces plaintiff voice, impedes the development of state law remedies, and limits discovery that can drive state and federal regulation regulatory interventions. This Online Response Essay addresses these critiques. Contrary to popular descriptions of the bankruptcy system, bankruptcy courts do not simply aim to maximize economic efficiency and financial recoveries. Bankruptcy includes numerous procedures, including robust disclosure, bellwether trials, future claims representatives, and voting, to ensure a fair process and promote non-economic goals. These provisions provide precisely the values that critics argue are missing from the bankruptcy process. And, to the extent that bankruptcy is insufficiently attentive to non-economic values, it is reasonably easy to tweak the system we have to more effectively accommodate these goals.