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Approximately one million bankruptcy cases are filed each year, involving billions of dollars of debt. All commercial transactions are structured with bankruptcy implications in mind. To this end, the bankruptcy system should provide predictability as well as economically efficient structures for dealing with the consequences of financial failure of various types of enterprises.
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Bankruptcy Judge Robert E. Ginsberg (N.D. Ill.) succeeds former Congressman Mike Synar, who resigned December 19, 1995. Synar died in January 1996, following a long illness.
Q: When was the National Bankruptcy Review Commission formed, and what is its mandate?
A: The National Bankruptcy Review Commission was created by the Bankruptcy Reform Act of 1994. All commission members were appointed by January of 1995, funding was received in July of 1995, and the first meeting was held on October 20, 1995.
The charge to the commission is to (1) investigate and study issues and problems relating to the bankruptcy code; (2) evaluate the advisability of proposals and current arguments with respect to such issues and problems; (3) prepare and submit a report; and (4) solicit divergent views of all parties concerned with the operation of the bankruptcy system.
Q: How is the commission structured, and what special areas of expertise or interest do its commissioners bring to the commission?
A: There are nine commissioners, all appointed for the life of the commission. Three members were appointed by the President, one each appointed by the majority and minority leaders of the House and Senate, and two were appointed by the Chief Justice.
The President also designates the commission chair and he selected former Oklahoma Congressman Mike Synar. Synar, who had been active in virtually every change in bankruptcy law since the Bankruptcy Reform Act of 1978, passed away in early January of 1996, after a 6-month fight with brain cancer. As with every project he ever undertook, Mike Synar led the commission with dignity and principle, and we shall miss him tremendously, both as a leader and a friend.
President Clinton also appointed Babette A. Ceccotti, a New York attorney specializing in labor and pension law and bankruptcy, and Jay Alix, a CPA and turnaround management specialist based in Michigan, the only non-lawyer on the Commission. Former Senate Majority Leader George Mitchell appointed Jeffrey J. Hartley, who had worked closely with Senator Howell T. Heflin on bankruptcy legislation for a number of years. Senator Bob Dole, then Senate Minority Leader, named James I. Shepard, a bankruptcy and insolvency tax consultant. Former House Minority Leader Robert H. Michel chose M. Caldwell Butler, a former congressman from Virginia who was very active in the 1978 Bankruptcy Reform Act, and who went into bankruptcy practice after leaving Congress. Former Speaker of the House Thomas Foley appointed John A. Gose, a Seattle attorney specializing in real estate and bankruptcy litigation. Chief Justice Rehnquist appointed Judge Edith H. Jones (5th Cir.). Judge Jones had an active bankruptcy practice for several years before being appointed to the federal bench. I was also appointed by the Chief Justice, and Synar asked me to serve as vice-chair, an appointment that was ratified by the commissioners at their first meeting. When Synar resigned from the commission shortly before he died, I became acting chair, and I will continue to serve in that capacity until the President designates a permanent chair.
In addition, Synar appointed and the commission confirmed Elizabeth Warren, who is the Leo Gottlieb Professor of Law at Harvard Law School, as the chief reporter of the commission. Based in the commis-sion's Washington, D.C., office, Jarilyn Dupont is the executive director and general counsel of the commission, working with a deputy counsel and administrative officer.
Q: The National Bankruptcy Reform Act of 1994 was one of the most sweeping pieces of bankruptcy legislation in the last 15 years. What areas of bankruptcy will the commission focus on in the immediate future, and how will these areas be determined?
A: At its November 1995 meeting, the commission identified six general areas to investigate. Each will be the substantive focus of a meeting where the commission will invite participants with expertise in the area to speak. These areas are (1) bankruptcy administration; (2) consumer bankruptcy; (3) environmental issues, tax, banking, insurance, regulated industries, future claims, mass torts, Chapter 9; (4) employees, labor, pensions; (5) business bankruptcy, partnerships, transnational; and (6) who can be a debtor; the role of bankruptcy, and bankruptcy as commercial law. Of course, these identified areas are quite broad and the commission cannot hope to address all elements of each.
The first topic addressed by the commission was bankruptcy administration, and this was the focus of a meeting on February 23, 1995, in Washington, D.C. The commission will then turn to the subject of consumer bankruptcy.
Q: Do you anticipate the commission's role as fine-tuning or as overhauling the bankruptcy system?
A: Minor tinkering with the provisions of the bankruptcy code is something that is addressed through the technical amendments bill that currently is moving through Congress. While the commission has not made a definitive statement on this matter, the work plan that the commission has laid out thus far indicates the propensity to take more of a macro approach. Synar was of the view that Congress' charge invited the commission to take a broad approach, looking, inter alia, into how the bankruptcy code impacts the domestic economy and how it affects the role of the United States in the world economy.
Q: The National Bankruptcy Commission has been tasked by Congress with soliciting divergent views on the operation of the bankruptcy system. How will the commission accomplish this task?
A: The commission tries to maintain an active presence in the bankruptcy community so that it can solicit the views of as many parties as possible. To this end, it held a public hearing in conjunction with the National Conference of Bankruptcy Judges on November 1, 1995. In addition, members of the commission have attended dozens of meetings of other groups to report on progress and to exchange ideas. The commission's chief reporter, with commission staff, is putting together teams of experts to make submissions at the public hearings and is soliciting the view of those in academia. The commission welcomes comments and suggestions from the public. Correspondence can be sent to the commission's office at One Columbus Circle, N.E., Suite G-350, Washington, D.C. 20002, or to commissioners directly. The commission also can be reached via e-mail at [email protected]
Q: Congress has formed similar commissions in the past, and Congress continues to carefully examine the bankruptcy laws. Why is changing the bankruptcy system so important?
A: Approximately one million bankruptcy cases are filed each year,
involving billions of dollars of debt. All commercial transactions are
structured with bankruptcy implications in mind. To this end, the
bankruptcy system should provide predictability as well as economically
efficient structures for dealing with the consequences of financial
failure of various types of enterprises. The reach and effect of
bankruptcy is almost without limit when one considers the Orange County
municipal bankruptcy, mass tort cases, and airline bankruptcies, among
others. Likewise, in consumer cases, the bankruptcy code must balance
the rights of debtors and creditors in far reaching ways. For example,
the Bankruptcy Reform Act of 1994 overhauled family law in such a way to
strengthen perceived family values in the bankruptcy context-at the
expense of the debtor's fresh start. Therefore, Congress has a strong
interest in creating and maintaining a workable bankruptcy system
from The Third Branch, February 1996
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