Jonathan M. Seymour

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Volume 89.8
Against Bankruptcy Exceptionalism
Jonathan M. Seymour
Associate Professor, Duke University School of Law.

I thank Douglas Baird, Stuart Benjamin, Elisabeth DeFontenay, Deborah DeMott, Craig Goldblatt, Melissa Jacoby, Margaret Lemos, Adam Levitin, Joshua Macey, Troy McKenzie, John Pottow, and Steven L. Schwarcz, as well as participants in two early-stage discussion groups at Duke Law School, and at the Global Bankruptcy Scholars Workshop at Brooklyn Law School, for helpful comments and feedback. I am also grateful to Wenxin Lu, Leping Sun, and Andrew O’Shaughnessy for valuable research assistance. I was first immersed in the issues discussed in this article while practicing as a bankruptcy litigator. In the interest of disclosure, I note that I was among counsel in two of the Supreme Court cases I discuss in this article: Harris v. Viegelahn, 575 U.S. 510 (2015) (representing the respondent), and Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017) (representing petitioners). I also assisted with my then–law firm’s representation of petitioners in both Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652 (2019), and City of Chicago v. Fulton, 141 S. Ct. 585 (2021). The views expressed in this Article are, of course, my own.

Within the world of bankruptcy, in other words, it is commonly understood that bankruptcy is a special field that requires an exceptional approach—one rooted in the norms, commitments, and assumptions that underlie the values of the bankruptcy community. I examine this disjunction and consider whether there is any principled justification for bankruptcy exceptionalism. I explain the sources of the disjunction and show how the bankruptcy courts’ exceptional approach has driven outcomes in the ongoing Purdue Pharma opioid crisis bankruptcy saga and other hotly contested and socially consequential cases. I conclude that there are many singular aspects of bankruptcy but none that justify treating it specially. Bankruptcy is distinctive, but it is not exceptional.

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v90.4
Against Bankruptcy Exceptionalism
Jonathan M. Seymour
Associate Professor, Duke University School of Law.

I thank Douglas Baird, Stuart Benjamin, Elisabeth DeFontenay, Deborah DeMott, Craig Goldblatt, Melissa Jacoby, Margaret Lemos, Adam Levitin, Joshua Macey, Troy McKenzie, John Pottow, and Steven L. Schwarcz, as well as participants in two early-stage discussion groups at Duke Law School, and at the Global Bankruptcy Scholars Workshop at Brooklyn Law School, for helpful comments and feedback. I am also grateful to Wenxin Lu, Leping Sun, and Andrew O’Shaughnessy for valuable research assistance. 

 

 

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