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91 Mich. L. Rev. 1773 (1992-1993)
The Fantastic Wisconsylvania Zero-Bureaucratic-Cost School of Bankruptcy Theory: A Comment

handle is hein.journals/mlr91 and id is 1797 raw text is: CORRESPONDENCE The Fantastic Wisconsylvania Zero-Bureaucratic- Cost School of Bankruptcy Theory: A Comment James W. Bowers* We must beware of the pitfall of antiquarianism, and must re- member that for our purposes our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. Oliver Wendell Holmes, Jr.1 In two recently published articles,2 Wisconsin Law Professor Lynn LoPucki and Pennsylvania Law Professor Elizabeth Warren, nearly simultaneously, fired the latest shots in one of academia's hottest ongoing debates: whether any good reason for having bankruptcy law exists.3 Justice Holmes once opined that the future belonged to the * Professor of Law, Louisiana State University Law Center. B.A. 1964, LL.B. 1967, Yale. - Ed. My thanks to John Church and Lucy McGough for helpful comments on earlier drafts. Credit for saving me from errors, but no blame for those remaining, is also due to Bob Rasmussen and Bruce Markell. Lynn LoPucki and Elizabeth Warren also graciously suggested improvements, some of which I made. They are obviously innocent of any sins that are left. 1. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REv. 457, 474 (1897). 2. Lynn M. LoPucki, Strange Visions in a Strange World: A Reply to Professors Bradley and Rosenzweig, 91 MICH. L. Rlv. 79 (1992); Elizabeth Warren, The Untenable Case for Repeal of Chapter 11, 102 YALE L.J. 437 (1992). The text identifies these authors with the institutions with which they were affiliated at the time these articles were written. Professor LoPucki has subsequently joined the faculty of Washington University in St. Louis, and Professor Warren has joined the Harvard Law School faculty. 3. The current debate began with Thomas M. Jackson, Bankruptcy, Non-Bankruptcy Entitle- ments, and the Creditors'Bargain, 91 YALE L.J. 857 (1982) (arguing that state grab-law credi- tors' remedies were inefficient, and that creditors would therefore agree ex ante to a collective remedy system resembling bankruptcy in order to overcome those inefficiencies). Douglas G. Baird, The Uneasy Case for Corporate Reorganizations, 15 J. LEGAL STUD. 127 (1986), fired the next salvo, arguing that the justification for bankruptcy law probably did not apply to publicly traded companies. This work elevated the matter to the state of a recognized debate by provok- ing an exchange in the University of Chicago Law Review between Baird and Professor Elizabeth 1773

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