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Copyright (c) Notre Dame Law Review, 2004.
University of Notre Dame


February, 2004

79 Notre Dame L. Rev. 633


Thomas E. Plank*


Bankruptcy courts and other federal courts in bankruptcy 1 wield considerable power in our society. In addition to deciding a substantial volume of commercial and business law disputes, 2 they play a significant role in mass tort litigation, 3 environmental litigation, 4 and other noncommercial litigation. 5 More significantly, their influence extends well beyond litigation. Their pronouncements influence how the parties to a myriad of business transactions, aggregating trillions of dollars, structure and price those transactions in light of the costs that bankruptcy law creates. Indeed, the entire securitization industry, involving more than six trillion dollars of outstanding securities, developed in the last twenty years as a response to the costs that bankruptcy law imposes on traditional secured creditors. 6

This influence extends well beyond federal law. Although the Bankruptcy Code (Code) 7 is a comprehensive federal statute, it essentially establishes a method for adjusting the relationship between an insolvent debtor and his, her, or its creditors. 8 The underlying debtor-creditor relationship exists under nonbankruptcy law, and the Bankruptcy Code itself recognizes this reality. The Code contains more than fifty references to "applicable law," "nonbankruptcy law," "state law," "local law," "common law," other federal law, a specific type of law, and even the "law merchant." 9 In addition, the definitions of the two most important concepts in the Bankruptcy Code - "property of the estate" 10 and "creditor" 11 - depend on nonbankruptcy law. Although some nonbankruptcy law is federal law, 12 the ...
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