Blog Quiz #1 Answers

NCBJ Blog Quiz: How Well Do You Know Your Bankruptcy History and Bankruptcy Community?

by Professor Karen M. Gebbia

Golden Gate University School of Law

To take Blog Quiz #1, click here (bankruptcy organization acronyms plus bonus question).

To take Blog Quiz #2, click here (identify which one does not belong).

Blog Quiz #1 Answers:

ABA American Bar Association
ABI American Bankruptcy Institute
AIRA Association of Insolvency and Restructuring Advisors
ALI American Law Institute
BBC Business Bankruptcy Committee, of the ABA
BCSIP Bankruptcy Court Structure and Insolvency Process Committee, of the ABA
CBL Commission on the Bankruptcy Laws of the United States, aka Bankruptcy Commission
CFPB Consumer Financial Protection Bureau
CLLA Commercial Law League of America
INSOL International Association of Restructuring, Insolvency & Bankruptcy Professionals
IWIRC International Women’s Insolvency & Restructuring Confederation
NAAI National Association of Accountants in Insolvency (later known as AIRA)
NABT National Association of Bankruptcy Trustees
NACBA National Association of Consumer Bankruptcy Attorneys
NACM National Association of Credit Management
NAFER National Association of Federal Equity Receivers
NARB National Association of Referees in Bankruptcy (later known as NCBJ)
NBC National Bankruptcy Conference
NBRC National Bankruptcy Review Commission
NCBJ National Conference of Bankruptcy Judges
NCBT National Convention of Boards of Trade, 1881
NCRCB National Convention of Representatives of Commercial Bodies, 1889
TMA Turnaround Management Association

Answer to Bonus Question:
Hon. Paul King, bankruptcy referee, first Chairperson of the National Association of Referees in Bankruptcy, 1926
Prof. Lawrence P. King, Charles Seligson Professor of Law, New York University, Advisory Committee on Bankruptcy Rules to the Judicial Conference of the United States, consultant to the Commission on the Bankruptcy Laws of the United States, Senior Advisor to the National Bankruptcy Review Commission, Editor-in-Chief of Collier on Bankruptcy.

NCBJ Blog Quiz #1: How Well Do You Know Your Bankruptcy History and Bankruptcy Community?

NCBJ Blog Quiz: How Well Do You Know Your Bankruptcy History and Bankruptcy Community?

by Professor Karen M. Gebbia

Golden Gate University School of Law

In a series of short quizzes, Professor Gebbia invites readers to test their knowledge of bankruptcy history and the role the bankruptcy community has played in shaping bankruptcy law. To learn more, attend the American Bankruptcy Law Journal / American Bar Association Symposium at the NCBJ Meeting: The NCBJ at Ninety: Evolution and Revolution, on October 27, 2016, in San Francisco.

Quiz #1: Bankruptcy Organization Acronyms

How many of these organizations can you accurately identify by their acronyms? In this quiz, Professor Gebbia invites readers to test their knowledge of common acronyms by which bankruptcy related professional organizations are known. Some are exclusively bankruptcy organizations; others touch on bankruptcy law in important ways. Some have been active for decades, others are defunct, others are newer to the scene, some are downright tricky – just to keep you on your toes. Watch for more questions about these organizations in the next quiz.

ABA
ABI
AIRA
ALI
BBC
BCSIP
CBL
CFPB
CLLA
INSOL
IWIRC
NAAI
NABT
NACBA
NACM
NAFER
NARB
NBC
NBRC
NCBJ
NCBT
NCRCB
TMA

Bonus Question: Name two famous bankruptcy Kings.

For Blog Quiz #1 answers, click here

To take Blog Quiz #2, click here.

Check back from time to time for more quizzes.

Pachulski Stang Ziehl & Jones’ Annual NCBJ Party

After a fun and hugely successful event last year, Pachulski Stang Ziehl & Jones is thrilled to once again host the official NCBJ “After Party.” PSZJ, the nation’s leading corporate restructuring boutique, has hosted the annual event since 1999, and is well known in the bankruptcy and insolvency community for its capacity-crowd parties. After a week of learning and networking at the NCBJ conference, a night of live music, food and drinks is the perfect way to relax and socialize.

On a related note, NCBJ will be hosting its sixth Next Generation Program at the San Francisco Conference. The Next Generation Program provides an opportunity for up-and-coming attorneys with five to ten years of experience to connect with bankruptcy judges and other bankruptcy professionals in a round table setting. In addition, there is a peer and senior practitioner networking reception, along with a reunion of former Next Generation Program participants. We are proud that PSZJ Partner John Lucas has been a NextGen board member for two consecutive years and that, over the years, several PSZJ attorneys have been selected to participate in the Next Generation Program.

Below are some photos from last year’s PSZJ After Party.

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Next Generation Announces 2016 Participants

The Next Generation program provides up-and-coming attorneys with a unique opportunity to connect with bankruptcy judges and develop connections with other bankruptcy professionals.  We are pleased to announce the 2016 Next Generation participants:

  • Ryan Bartley, Young Conaway Stargatt & Taylor
  • Andrew Behlmann, Lowenstein Sandler
  • Kevin Capuzzi, Benesh, Friedlander, Coplan & Aronoff
  • Kimberly Cohen, Shipman & Goodwin
  • Christian Cooper, Public Counsel
  • Michael Delaney, BakerHostetler
  • Roma Desai, Bernstein Shur
  • Catherine Douglas, Akerman LLP
  • Jeffrey Eaton, Menter, Rudin & Trivelpiece
  • Beth Gaschen, Lobel Weiland Golden Friedman
  • Kate Harmon, Elliott Greenleaf
  • Kathryn Harrison, Campbell & Levine
  • Teri Havron, Goldenberg, Heller & Antognoli
  • Andrew Helman, Marcus, Clegg & Mistretta
  • J. Luke Hendrix, Desmond, Nolan, Livaich & Cunningham
  • Matthew Hinker, Greenberg Traurig
  • Jarret Hitchings, Duane Morris
  • Laura Hughes, Bryan Cave
  • Kizzy Jarashow, Goodwin Procter
  • Stephanie Kanan, Lindquist & Vennum
  • Ryan Kelley, Pierce Atwood
  • Bernice Lee, Shraiberg, Ferrara & Laudau
  • Natalie Levine, Cassels Brock & Blackwell
  • Jennifer Lyday, Womble Carlyle Sandridge & Rice
  • Leslie Maxwell, Walker & Associates
  • James McGhee III, Kaplan & Partners
  • Abigail O’Brient, Mintz Levin
  • Matthew Olson, Macdonald Fernandez
  • Amanda Perach, McDonald Carano Wilson
  • Cara Porter, U.S. Bankruptcy Court
  • Kelly Roberts, Bankruptcy Law Offices of James Schwitalla
  • Isaac Rothschild, Mesch Clark Rothschild
  • Natella Royzman, Royzman Law Firm
  • Anne Shiau, Lincoln Law
  • Kristen Siracusa, Miles & Stockbridge
  • Kristina Stanger, Nyemaster Goode
  • Lisa Updike Starks, Barnes & Thornburg
  • J. Patrick Warfield, Burr & Forman
  • Carl Wedoff, Jenner & Block
  • Erin West, Godfrey & Kahn
  • Sirena Wilson, Murray & Murray
  • Andrew Wimmer, Marco Wimmer

 

 

The NCBJ Today – At 90 Years

The National Conference of Bankruptcy Judges has evolved considerably in the ninety years since the formation of the National Association of Referees in Bankruptcy in 1926 (click here for an article about NARB).  NARB’s founder, Paul H. King, would have been proud.  Over 312 of the nation’s 350 active bankruptcy judges (about 82%) are members of NCBJ, including judges from all 94 federal judicial districts.  NCBJ’s mission is to provide continuing legal education to judges, lawyers and other involved bankruptcy professionals, to promote cooperation among bankruptcy judges, to secure a greater degree of quality and uniformity in the administration of the bankruptcy system, and to improve the practice of law in the bankruptcy courts of the United States.

NCBJ’s structure consists of a Board of Governors, Executive Committee, Executive Director, Standing Committees, Special Committees, and Ad Hoc Committees.

Executive Committee and Board of Governors

NCBJ’s five officers serve on its Executive Committee: a president, president-elect, immediate past president, treasurer and secretary.  The sixteen member Board of Governors is comprised of four at-large governors, eleven regional circuit governors (one from each circuit), and a retired judge governor.  Members of the Board of Governors serve three year terms.  The Elections Committee recommends candidates for open positions for approval by the membership of the NCBJ.

Hon. Mary Grace Diehl, N.D. Ga, is NCBJ’s current president.  Hon. Mary Walrath, D. Del., will serve as president for the 2016-2017 fiscal year, and Hon. Michael E. Romero, D. Colo., for the 2017-2018 year.

Executive Director

NCBJ’s Executive Director performs numerous essential administrative tasks, including budgeting; website design and maintenance; planning the Annual Conference and Mid-Year meetings; administrative support for the Board, Executive Committee and other committees; and facilitating communications with members.  Jeanne Sleeper is NCBJ’s Executive Director.

Meetings

The Executive Committee meets monthly by telephone, and more often as necessary.  The Board of Governors and Executive Committee meet in person twice a year, at the Annual Conference where the “annual members’ meeting” is held and at a “Mid-Year Meeting.”  The Board of Governors meets more often by telephone, as needed.  Members of the Board are invited to attend the monthly telephonic Executive Committee meetings.  Different committees meet at different intervals, some more often than others.

Standing and Special Committees

NCBJ’s five Standing Committees are Elections, Endowment for Education, Finance, Legislative, and Technology.  NCBJ’s Special Committees consist of Bylaws; Cost Containment/Judicial Relations; Annual Conference Education Program; Ethics; Federal Rules Advisory; Hispanic Bar; International Judicial Relations; Legal Review; various Liaisons; Membership Services; NBA/Blackshear; Next Generation Program; Marketing; Newsletter; Public Outreach; Retired Judges; Schwartz Roundtable; and Security.  Much of the heavy lifting is done by the committees.  The President has authority to appoint Ad Hoc committees for special projects.  Much of the heavy lifting is done by the committees.

The Annual Conference Education Program, Cost Containment/Judicial Relations; Endowment for Education; Ethics; Federal Rules Advisory; Finance; International Judicial Relations; Legislative; Liaison; NCBJ/NBA Blackshear; Newsletter; Next Generation; Public Outreach; Schwartz Roundtable; and Technology Committees are among the most active committees.

  • The Annual Conference Education Program Committee plans the education programs for the NCBJ Annual Conferences. Its goal is to provide timely, challenging education on bankruptcy and related topics.
  • The goal of the Cost Containment/Judicial Relations Committee is to explore methods for bankruptcy courts to increase their cost savings efforts consistent with the long term and short term mission of the court, and to foster good relationships with Article III and other federal judges, as well as, where appropriate, state court judges.
  • The Endowment for Education Committee funds bankruptcy research and education for charitable purposes, particularly including empirical research.
  • The Ethics Committee assists NCBJ officers, directors and other members on ethics issues in connection with their NCBJ activities taking into account the Code of Conduct for U. S. Judges and general ethical concepts.
  • The Federal Rules Advisory Committee evaluates proposed amendments to the Federal Rules of Civil Procedure, Bankruptcy Procedure, and Evidence and prepares proposed comments on the amendments for NCBJ to submit to the Standing Committee on Rules of Practice and Procedure as NCBJ’s comments.
  • The Finance Committee monitors NCBJ’s financial condition, and makes recommendations to the Board and Executive Committee to assure NCBJ maintains adequate financial reporting and controls and that its finances are prudently managed.
  • The International Judicial Relations Committee fosters productive engagement between NCBJ members and judges in other countries, sponsors International Judicial Roundtable discussion programs, encourages and supports NCBJ member judges with an interest in international technical assistance work, and conducts outreach to existing and potential NCBJ International Judicial Affiliate members.
  • The Legislative Committee works with the Federal Judges Association and Federal Magistrate Judges Associate to educate Congress for the betterment of the federal judiciary as a whole, and educates and informs Congress on matters of interest to the bankruptcy courts.
  • Liaison Committees. The missions of various liaison committees is to advance cooperation and communication between NCBJ and other bankruptcy-focused organizations, including ABA, ABI, ABJA, CLLA, FBA, IWIRC, NABT, NACTT, NBA, NCBC, TMA, and UST.
  • The NCBJ/NBA Blackshear Committee sponsors Blackshear Lectures and Receptions for law students and pre-law undergraduate students in the cities where each NCBJ Annual Conference is held to encourage diverse law and undergraduate students at local colleges and universities to consider bankruptcy and restructuring law as a practice area. The Blackshear Committee presents annual fellowships to minority bar members.
  • The Newsletter Committee publishes the NCBJ Conference News quarterly, typically 32 to 42 pages, for circulation to NCBJ members. Its committee members include an editor-in-chief, assistant editor, issue editors and photographers.  Published articles include such items as a message from the president, news from the annual conferences and mid-year meetings, committee activities, and activities and accomplishments of members.
  • The Next Generation Committee sponsors a program at each NCBJ Annual Conference that provides 40 up-and-coming bankruptcy attorneys with five to ten years of experience a unique opportunity to connect with bankruptcy judges and develop connections with other bankruptcy professionals.
  • The mission of the Public Outreach Committee is to develop and offer a continuous framework of programs and activities that educate and inform the public and the non-bankruptcy judiciary about bankruptcy law.
  • The Schwartz Roundtable Committee organizes sitting bankruptcy judge-only roundtable explorations of legal issues and decisional approaches of particular concern to the bankruptcy bench. Committee members develop issues for discussion, provide participant judges with background information and materials, and facilitate discussions.
  • The Technology Committee makes sure the NCBJ websites are well designed and functioning properly (a task performed mostly by the Executive Director); advises the Executive Committee and Board on technology issues affecting NCBJ; sponsors the Annual Conference Blog; and undertakes special projects.

American Bankruptcy Law Journal and NCBJ Conference News

The Journal of the National Association of Referees in Bankruptcy changed its name in 1966 to The Journal of the National Conference of Referees in Bankruptcy to reflect the change in name of the organization in 1965.  In 1971, the National Conference of Referees in Bankruptcy (NCRB) divided the academic and news aspects of the Journal into two publications: The American Bankruptcy Law Journal and the Conference Newsletter.

The American Bankruptcy Law Journal  is the world’s premier law journal devoted to bankruptcy topics.  ABLJ’s staff consists of an editor-in-chief; immediate past editor-in-chief; business manager; four bankruptcy judge associate editors; and a six member advisory board comprised of law professors, lawyers in private practice and bankruptcy judges.

Hon. Conrad K. Cyr, D. Me., served as ABLJ’s first editor-in-chief.  Hon. Jeffery A. Deller, W.D. Pa, is editor-in-chief today.  The January 1971 inaugural issue of The American Bankruptcy Law Journal, published as 45 Am. Bankr. L.J., contained commemorative letters from Richard M. Nixon, President of the United States; Warren E. Burger, Chief Justice of the United States; the Director of the Federal Judicial Center; both Chairmen of the House and Senate Judiciary Committees; the Director of the Administrative Office of United States Courts; the Chairman of the National Bankruptcy Conference; the President of the National Conference of Referees in Bankruptcy; and the President of the Commercial Law League.  [Click here to see the ABLJ Commemorative Letters].  The inaugural issue contained original articles by Professor Vern Countryman, Honorable Asa S. Herzog, John Honsberger, Q.C., Honorable Joe Lee, Honorable William J. O’Neill, and Professor Charles Seligson.

Hon. A. David Kahn, N.D. Ga, served as the first editor-in-chief of the then monthly Conference Newsletter launched in 1971.  The Conference Newsletter later became the NCBJ Conference News, published quarterly.  Hon. Kay Woods, N.D. Ohio, serves as its editor-in-chief today.

The goals of the National Association of Referees in Bankruptcy when formed in 1926 were to work towards the adoption of at least some uniform practices among referees, formulate administrative practices to improve efficiency, foster communication among referees, establish ethical guidelines, and improve the public’s perception of bankruptcy.  Today, NCBJ undertakes a much wider variety of projects to educate, promote cooperation among bankruptcy judges, improve quality and uniformity in the administration of the bankruptcy system, and generally to improve the practice of law in the bankruptcy courts of the United States.

Photos – United States Supreme Court

Although a little off topic, I am posting photos of the United States Supreme Court building I took in June 2016 and a photo of two portraits former justices within the building.

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Justices Louis Brandeis and Oliver Wendell Holmes

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The Supreme Court building has been widely photographs.  Here are a few more.

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1926: The National Association of Referees in Bankruptcy is formed. What else?

Judicial Branch

In 1926, there were ten judicial circuit courts of appeal: the U.S. Court of Appeals for the District of Colombia and the U.S. Courts of Appeal for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Circuits.

In 1929, the Eighth Circuit was divided into the Eighth and Tenth Circuits.  In 1980, the Fifth Circuit was divided into the Fifth and Eleventh Circuits.  The U.S. Court of Appeals for the Federal Circuit was formed in 1982.

William Howard Taft (Ohio) served as the 10th Chief Justice of the United States Supreme Court from 1921 to 1930.  He was the 27th President of the United States from 1909 to 1913.  President/Chief Justice Taft is credited with convincing Congress to pass a bill for the construction of the present Supreme Court building.  You can find photos of the Supreme Court building here.

Executive and Legislative Branches in 1926

  • President: Calvin Coolidge (R-Massachusetts)
  • Vice President: Charles G. Dawes (R-Illinois)
  • Speaker of the House of Representatives: Nicholas Longworth (R-Ohio)
  • Senate Majority Leader: Charles Curtis (R-Kansas)

Attorney Organization

The National Bar Association was formed July 26, 1926.

Jazz Musicians

The great John Cotrane (sax) and Miles Davis (trumpet) were born in 1926.

NCBJ’s Formation 90 Years Ago as the National Association of Referees in Bankruptcy

The National Conference of Bankruptcy Judges, formerly known as the National Association of Referees in Bankruptcy, turns 90 this year.  It was formed in 1926.

In 1920 Referee Herbert M. Bierce of Winona, Minnesota became concerned that support in Congress could develop to repeal the Bankruptcy Act of 1898.  He thought about forming an organization of Referees in Bankruptcy.  Referee Bierce heard that Referee Paul H. King of the Eastern District of Michigan was “a man of personal magnetism, high ideals and splendid organizing ability.”  In 1923, he wrote Referee King about the concept of forming an organization for Referees in Bankruptcy.  Referee King was interested.   At the time, there was no centralized list of Referees in Bankruptcy.  Referee King compiled a list by contacting each of the Clerks of Court across the county, which showed there were approximately 535 active Referees in Bankruptcy in the continental United States.  For many years, Referee Bierce maintained the only reasonably accurate roster of referees in the country.  He estimates there were as many as 800 referees earlier in the century.

Referee King then wrote a letter to each Referee in Bankruptcy in the country inquiring as to their interest in forming a national organization of referees.  He received a positive response.  Referee Bierce recounts what happened next:

“Late in the Spring of 1925 a Rotary district conference was held at Hibbing, Minn., on the ‘Iron Range’, which Mr. King attended as the representative of Rotary International. There I met him. We discussed pushing the organization, with a meeting to be held in Detroit. He readily agreed to undertake the detailed task and to so proceed. He secured the cooperation of the Michigan and Detroit Bar Associations and the Detroit Lawyers Club all of which appointed committees to assist him. His ‘boss’, U S. District Judge Arthur J. Tuttle, who shared the federal judicial work in the Eastern District of Michigan with, now, Circuit Judge Charles C. Simons, was enthusiastic for the movement. Both judges were very proud of the Detroit bankruptcy court organization and were anxious that its virtues be made known. The Book-Cadillac, a new edifice in place of a smaller popular hostelry, was selected as headquarters and July 9th and 10th, 1926, Friday and Saturday, were chosen as dates. Mr. King issued the call and continued, by one method or another, to secure pledges of attendance. As soon as a Referee indicated his intention to attend, Mr. King made this intention certain by drafting such Referee to participate in the program. Thus he early built up an interesting program, as the idea worked admirably.”

In July 1926, a conference of bankruptcy referees from across the nation was held at Detroit’s Book Cadillac Hotel, organized by Referee King.  Eighty-two referees from 24 states and the District of Columbia attended. There were The National Association of Referees in Bankruptcy (NARB) “was organized July 9, 1926, when, on motion of Referee J. F Hendricks, Doylestown, N.Y., seconded by many, it was unanimously decided to form a permanent organization ‘even though the Referees would not necessarily be permanently in office.'”

Paul H. King was elected the first President.  Referee Watson B. Adair of Pittsburgh was elected Vice President.  Referee Herbert M. Bierce of Winona, Minnesota was elected Secretary-Treasurer and became the first Editor of the Journal of the National Association of Referees in Bankruptcy.  A Board of Directors was elected, one member from each of the nine regional circuits then in existence.  Four committees were formed: Ethics, Legislation, Resolutions, and Uniformity of Practice.  Membership on each committee consisted of one member judge from each of the nine circuits.

This is an excerpt of an article published in December, 1926, in the first issue of the first volume of the Journal of the National Association of Referees in Bankruptcy about NARB’s formation at Detroit’s Book Cadillac Hotel:

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NCBR Article

Until the formation of NARB, the more than five hundred bankruptcy referees serving nationwide in 84 judicial districts were mostly isolated within their respective districts.  There were no uniform practices.  Referees were criticized as being inefficient, having conflicts of interest, and disproportionately paying estate assets for costs of administering the estate.  Prominent law firms did not practice in the bankruptcy arena dominated by small cliques of attorneys and other professionals.  Referees, appointed by district courts for two-year renewable terms, served a judicial function and administered the estate, and routinely had ex parte communications.  Decisions of bankruptcy referees were not reported.

It was in this environment that the National Association of Referees in Bankruptcy was formed.  Initially, NARB’s principal goals were to work towards the adoption of at least some uniform practices, formulate administrative practices to improve efficiency, foster communication among referees, establish ethical guidelines, and improve the public’s perception of bankruptcy.  Toward these ends, NARB began publishing a Journal called the Journal of the National Association of Referees in Bankruptcy.  In 1971, the academic aspect of the Journal became the American Bankruptcy Law Journal, and the news aspect the Conference Newsletter, now known as the NCBJ Conference News.  Ultimately, formal rules establishing uniform practices among referees were adopted after bankruptcy administration was brought within the Administrative Office of the United States Courts in 1946.

During Paul King’s year as NARB’s first president, NARB conducted a comparative statistical study to identify the most and least efficient referees measured by administrative fees and creditor distributions, and prepared a Code of Ethics for Referees.  The Code of Ethics for Referees was adopted at NARB’s second annual conference held August 29 and 30, 1927 in Buffalo, NY.

Referee Watron B. Adais, NARB’s second president, describes the purpose of NARB and the Journal of the National Association of Referees in Bankruptcy in his introduction to the 1927, No. 1, Journal issue:

“This issue of the Journal reports the proceedings at the second Annual Conference, as well as the current news of the Association.  The success of the two conferences and the interest shown in the various issues of the Journal prove the value of both.  With rare exceptions, each referee in bankruptcy works alone, consulting with no other referee and having inadequate knowledge of how things are done by other referees.  If this Association could make available the experience of each referee for the information of all it would really benefit both the referees and the public.  The Journal serves as a line of communication among the referees and as a forum for discussion of bankruptcy practices and policies.  These services can be further developed.”

In 1965, NARB changed its name to the National Conference of Referees in Bankruptcy (NCRB).  In 1973, NCRB changed its name again to the National Conference of Bankruptcy Judges (NCBJ) to coincide with adoption of new Federal Rules of Bankruptcy Procedure, effective October 1, 1973, which referred to bankruptcy referees as bankruptcy judges for the first time.  Today, over 80% of the nation’s active bankruptcy judges are members of the National Conference of Bankruptcy Judges, which has continued and expanded upon the pioneering efforts of NARB.

Sources for this article include Herbert M. Bierce, Twenty-five Years of Association Activity: In Retrospect, 25 J. Nat’l Ass’n Ref. Bankr. 67 (1951); Russell L. Hiller,  A Conference Anniversary – Fifty Years in Retrospect, 51 Am. Bankr. L.J. 31 (1977); Paul King and the Making of the Modern Bankruptcy Courts by Kevin Ball, published by The Historical Society for the United States District Court, in the Court Legacy, Vol. XVI, No. 3, © 2009; and several other issues of the Journal of the National Association of Referees in Bankruptcy.   You can find Kevin Ball’s interesting article here: 200909_Court_Legacy

San Francisco Photos by Judge K. Rodney May

This post is made by Bankruptcy Judge K. Rodney May, M.D. Fla.  Judge May took these photos.

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The ABLJ/ABA Symposium on The NCBJ at 90: The Evolution, Role, and Impact of Bankruptcy Courts from 1926 to 2016

This post is made by Hon. Colleen A. Brown, Chief Bankruptcy Judge, D. Vt.  The abstracts of the Symposium topics are by each of the professors presenting the topic.

The ABLJ/ABA Symposium onThe NCBJ at 90:  The Evolution, Role, and Impact of Bankruptcy Courts from 1926 to 2016

This year the NCBJ will present its Second Annual American Bankruptcy Law Journal Symposium on Thursday October 27th, from 3:00 to 5:00 p.m.  It is open to all NCBJ Conference registrants. The ABLJ is delighted to welcome the ABA as its Symposium co-sponsor. The Symposium is a unique program at the NCBJ Conference. It focuses on scholarly exploration of topics based on recent empirical studies.

The Symposium is unique both in its content and format. The content of this year’s Symposium celebrates the NCBJ’s 90th anniversary.  The presenters are four nationally respected bankruptcy scholars who conducted empirical studies on topics reflecting the evolution of the bankruptcy courts over the last 90 years in the areas of municipal law, exercise of equitable powers, valuation techniques, and collaboration among the various constituents of the bankruptcy community.

The format will be more of a conversation than a presentation. In describing the evolution of the bankruptcy courts, each of the four scholars will present the results of their empirical study and the conclusions they draw from the data.  They will also discuss among themselves how their conclusions complement or raise questions about the findings of their colleagues on the dais.  The ABLJ will publish an article by each scholar covering their respective Symposium topics, in a single special edition of the Journal available in early 2017.

The topics, described in more detail below, are:

  • Professor Karen M. Gebbia, Golden Gate University School of Law: Keepers of the Code: Evolution of the Bankruptcy Community from 1926 to the Present
  • Professor John A. E. Pottow, Michigan Law School: The Rise and Fall of Bankruptcy Courts’ Equitable Powers Over the Past 90 Years
  • Professor: Melissa B. Jacoby, University of North Carolina Law School: Municipal Bankruptcies and Bankruptcy Courts: Then and Now
  • Professor Michael Simkovic, Seton Hall University School of Law: The History of Valuation Techniques in the Bankruptcy Court, 1926-2016

We hope to see you there!

THE KEEPERS OF THE CODE: EVOLUTION OF THE BANKRUPTCY COMMUNITY 1926 – 2016 © 2016,

by Professor Karen M. Gebbia

At the Symposium, Professor Gebbia will examine the development and influence of the modern bankruptcy community over the past 90 years, since the founding of the National Conference of Bankruptcy Judges. She will articulate essential characteristics of the bankruptcy community, and describe the fundamental ways in which that community has evolved over several distinct eras. She will then hypothesize that the bankruptcy community’s influence on bankruptcy law might vary depending on the nature of the debate. To explore this question, she will argue that the evolution of bankruptcy law, both historically and today, centers on three interrelated arcs:

(i) bankruptcy law’s substantive balancing of equities among creditors and debtors; (ii) the locus of control over, and essential nature of, the system that administers bankruptcy law; and (iii) the clarity and coherence of bankruptcy law. Professor Gebbia will employ this framework to explain the role the bankruptcy community has played at critical junctures in the development of modern bankruptcy law. Finally, she will apply this perspective to make specific recommendations regarding the manner in which the bankruptcy community, including the NCBJ, may most effectively engage in today’s ongoing debates over the future of bankruptcy law.

MUNICIPAL BANKRUPTCY AND BANKRUPTCY COURTS: THEN AND NOW

by Professor Melissa B. Jacoby; Abstract as of June 1, 2016

The National Conference of Bankruptcy Judges, now celebrating its Ninetieth birthday, was created relatively shortly before the establishment of a novel municipal bankruptcy law. Both the bankruptcy judiciary and municipal bankruptcy have changed dramatically since that time – both with and without statutory amendment – but there has been little attention to how they intersect. At first, municipal bankruptcies were not only minimalist in scope and detail (essentially a prepackaged bond restructuring), but also handled by generalist Article III judges of the federal district court. Today, bankruptcy judges play central roles in shaping both the procedure and substance of chapter 9 cases, which look completely different from the municipal bankruptcies contemplated in the 1930s legislation, and bearing considerably more resemblance to “freefall” chapter 11s. Yet, at the time of this writing, Congress is considering requiring that the largest- ever government bankruptcy on the horizon (Puerto Rico) be managed by a district judge. That decision would be a big mistake, reflecting a misunderstanding of the evolution of both municipal bankruptcy and the bankruptcy judiciary over the last 80-90 years.

THE EVOLUTION OF VALUATION IN BANKRUPTCY

by Professor Michael Simkovic

Financial analyses such as valuation, solvency, and capital adequacy play a crucial role in bankruptcy.  They are central to allowance of claims, adequate protection, avoidance actions such as fraudulent transfer and preference, and plan confirmation.  Today, the established methods of financial analysis accepted by most bankruptcy courts include discounted cash flow (DCF), comparable companies and comparable transactions.  However, newer methods based on market prices for equity, debt, or options and derivatives are supplementing, and in some cases supplanting more established approaches.  The new market-based methods are generally considered to be more objective, free of hindsight bias, harder to manipulate, and less expensive to implement.  However, courts may not fully understand how market information should be interpreted, and have correctly noted that such information could be of limited value if critical contemporaneously known information was not available to investors.  In this time of transition between methods of financial analysis, it may be helpful to look back, tracing the evolution of methods of valuation in bankruptcy.  Today’s “established” methods—DCF and comparables—were also once new, less than fully understood, and met with suspicion by the courts.  Understanding how these methods went from novel and controversial to established and accepted can help shed light on what we might expect to see during the anticipated transition from DCF and comparables toward more fully market-based approaches.