Title

Negotiating Bankruptcy Legislation through the News Media

Abstract

During the last cycle of major bankruptcy legislation, federal lawmakers have not permitted most bankruptcy lawyers, judges, or academics to be directly involved with the legislation or even to correct drafting errors. Instead, advocates of the omnibus bankruptcy bill have been dismissive of so-called “bankruptcy establishment” concerns and input. Relying on research from sociology and other disciplines, however, I argue that the news media helped the bankruptcy establishment by re-framing the debates about bankruptcy law and legislation. Once predominantly justified by debtor irresponsibility and a runaway bankruptcy system, the bankruptcy bill also became a story of credit industry power, a story of loopholes for the rich, and, perhaps most effectively, a women’s issue. This article evaluates these emerging stories in light of presumed bankruptcy establishment goals by asking three questions about each: 1) did it heighten the bill’s controversy?; 2) did it improve the bill?; and 3) did it advance the public’s understanding of the real issues at stake in the law and legislation? In response, I posit that some stories may have increased the controversy of the bill and slowed its progress. Yet, framing bankruptcy in these ways only rarely led to improvements in the bill. In addition, only the third frame – bankruptcy as a women’s issue – had substantial educational value for the public, notwithstanding bill proponents’ assertions that this characterization was contrived. I conclude that the news media (and the establishment it empowered) may have affected present and future development of bankruptcy law. This is an important lesson for anyone involved in the legal system and is not limited to bankruptcy. Arguably, however, the lawmaking process would be better served by reincorporating the establishment players back into legislative negotiations, even if they do not gain the level of control they once enjoyed.

Disciplines

Bankruptcy Law | Commercial Law | Law and Politics | Legislation

Date of this Version

February 2004