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Workshop on Bankruptcy
May 17–19, 2001
St. Louis, Missouri
Marjorie L. Girth
Georgia State University College of Law
I. The scholarly tradition from which an interest in empiricism developed
II. Defining “empirical research” in this context
Most scientific definition: the application of statistical techniques of inference to large bodies of data
Other possibilities:
Case studies or data drawn from random samples of selected geographical areas, both of which can be targets of challenges to claims of representativeness on their behalf
Predominantly anecdotal work that illustrates the power of personalized examples
III. Should untenured scholars undertake empirical or “field research” projects ?
As part of the educational experience that they are attempting to produce when they teach a basic bankruptcy course ?
Issue becomes the traditional one of the tradeoff involved in the cost of not covering other materials
Is shaking up students' preconceptions about who the bankrupt debtors are or how much creditors actually participate worth that kind of cost ?
The risk that what students observe will undermine positive educational goals.
As part of the research that accumulates before a tenure decision ?
Risks of individual research
Tenured colleagues may be unsympathetic to this kind of research.
It may take so long that the number of pre-tenure publications seems very low by comparison with others' tenure files being reviewed by either the law school faculty or university officials.
Delays may be aggravated by problems in data collection and/or coding (the familiar scourge of “junk in, junk out”.
Research results based upon useable data may not be reflective of “what everybody knows”, a development that can have either positive or negative effects, depending upon the politics of particular academic environments.
Added risks of collaborative research with colleagues who are more expert in statistical methodology
Different scholarly cultures
How extensive should footnoting be?
At what level of precision will data be considered useable ?
Will law faculty colleagues give the same kind of credit to collaborative research as they would to individual research or will they feel “unable to evaluate” it ?
IV. Should tenured faculty members undertake such research ?
As a significant part of their post-tenure scholarly agenda ?
Increasingly widespread use of post-tenure review may make such research more risky than it has seemed in the past.
With the hope of having an impact upon bankruptcy legislation itself or upon other laws that impact upon creditors' or bankrupt debtors' experience ?
Risks of involvement with the legislative process
Unpredictable, emergency-oriented timing
Primacy of political over academic agendas
The ability of the powerful anecdote to overwhelm more systematic data
V. Examples of bankruptcy issues that have drawn the attention of scholars with an interest in empirical research
Selected issues affecting consumer bankruptcy
the demographics of the bankruptcy petitioners and the causes of their decision to pursue a remedy under the bankruptcy laws
the experience of female bankruptcy petitioners
the “legal culture” that has affected consumer petitioners' choices between financial liquidation under the present Chapter 7 and financial reorganization under the present Chapter 13
the economic incentives for non-business debtors under our present bankruptcy legislation, including research on exemptions, reaffirmations and discharges
the questions of whether Chapter 13 proceedings can be viewed as successful and of whether that remedy should be retained
the potential impact of the “means test” proposed in pending legislation upon creditors' recoveries in consumer bankruptcy cases
Selected issues affecting business bankruptcy
the financial characteristics of bankrupt businesses
economic analysis of a comparison between Chapter 11 and out-of-court financial reorganizations
questions concerning the definition of success in Chapter 11 and whether that remedy should be retained
analyzing the frequency of confirmation as a measure of success
the extent to which judge-shopping occurs in large Chapter 11 reorganizations
analysis of various kinds of decision-making in the Chapter 11 reorganization of large, publicly held companies
assessing the quality of disclosure statements in Chapter 11 reorganizations
Selected issues concerning business bankruptcy, cont'd.
the impact of section 1113 upon the rejection of collective bargaining agreements analysis of the overall administrative costs of Chapter 11
specifically, are lawyers' fees too high?
analysis of industry-wide effects of corporate bankruptcy announcements
Selected examples of research on other issues affecting bankruptcy proceedings
scholarship that analyzes the methodological problems of doing such studies
analysis of the quality of data in bankruptcy schedules
attempts to analyze the impact of empirical research upon policy-making
analysis of the demographics of the bankruptcy bar
analysis of whether Chapter 7 trustees are adequately compensated
analysis of the probability that the U.S. Supreme Court will grant certiorari in bankruptcy cases