forthcoming in Buffalo Law Review


This paper is part of a symposium discussing Lynn LoPucki’s provocative book, Courting Failure. In that book, Professor LoPucki discusses the systemic problems created by forum shopping in large chapter 11 bankruptcy reorganizations. He explores how and why debtors started selecting first New York and then Delaware’s bankruptcy court as a venue and how other bankruptcy courts reacted by competing for large debtors, with what he believes to be corrupting effects. This paper focuses first on what the author describes as an “eye-poking phenomenon,” that is, how LoPucki has gone out of his way to incite controversy – and successfully. The heart of the paper explores the manner, means, and motivation of LoPucki’s avowedly confrontational style, and asks whether such inflammatory rhetoric was warranted. The proofs of LoPucki’s thesis are tested. The latter part of the paper turns to an exploration of alternative solutions to the forum-shopping problem. Ideas examined include: (1) limiting venue choice; (2) direct congressional regulation of questionable practices; (3) limiting and normalizing professional fees; (4) resurrecting the mandatory appointment of a trustee; (5) enacting a threshold feasibility test; and (6) making a number of structural changes to the court system.


Law and Economics

Date of this Version

November 2005