Chapter I Preface

• Jurisdiction: United States

I. Preface

In 2011, contemporaneously with the formation of ABI's Commission to study the reform of chapter 11, I initiated the launch of a column in the ABI Journal entitled "Problems in the Code."

Our column is designed to be a parallel effort alongside the Commission's efforts to study the first major overhaul of our nation's business bankruptcy laws in over thirty years. The purpose of the column is to augment and support the Commission's work, by highlighting areas of the Bankruptcy Code and Rules that have proven to be problematical in theory and/or application, and offer legislative solutions to the problems, in both business and consumer cases.

Examples of situations that have given rise to "Problems in the Code" include:

• Circuit "Splits," whereby interpretation varies by jurisdiction, leading to inconsistent application of laws and forum shopping;
• Areas where courts and/or attorneys have created "workarounds" to adapt the Code to the reality of business necessities and practice of law, such as the so-called "Jay Alix Protocol" in the Third Circuit; and
• Situations where one or more of the ultimate purposes of bankruptcy, e.g., creating fair opportunities for debtors to be rehabilitated, treating creditors of the same class equally, etc.—just aren't being served well by the Code and Rules as written.

In addition to the public hearings held by the Commission, the "Problems in the Code" column serves as another "voice of the people"—ABI members who are prominent or emerging bankruptcy law practitioners, and who have observed first-hand the imperfections of our system of bankruptcy laws.

Several months after launching the column, Frank Volk, Law Clerk in the U.S. District Court in Charleston, WV, joined me as a Coordinating Editor. Frank focuses on soliciting and editing articles about consumer bankruptcy, and I focus on business bankruptcy.

Our articles follow the general format of:

1. Here's the problem

2. Here's why it's a problem

3. Here's the suggested legislative solution

Over the past sixteen months, our column has published a prolific stream of articles in nearly every issue of ABI Journal (listed at: http://journal.abi.org/category/column-name/problems-code-0).

We have been struck by the breadth of subjects in need of legislative attention. This published body of work is more evidence for the need for reform of Title 11.

Here is a list of article subjects published to date, in our current queue or in...