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Copyright (c) 2006 National Conference of Bankruptcy Judges
The American Bankruptcy Law Journal

ARTICLE: Globalization, Bankruptcy and the Myth of the Broken Bench

Spring, 2006

80 Am. Bankr. L.J. 219


by Sandor E. Schick*


Since Chapter 11 of the Bankruptcy Code first took effect in the United States in 1979, it has been a basis for bankruptcy reform around the world. 1 Chapter 11 has inspired imitation largely because of its central purpose, reorganization of the debtor. 2 Chapter 11's concern with rehabilitation contrasts with another approach that prevailed in the United States, and elsewhere, before the emergence of Chapter 11, 3 in which the principal purpose of bankruptcy was to liquidate the debtor's property for the benefit of creditors, and in which punishment of the debtor was often a correlate of liquidation. 4 The international diffusion of Chapter 11 is seen by some as the culmination of an historic process that began with the introduction of discharge in England in 1706, advanced with the inclusion of discharge and voluntary bankruptcy in the first "permanent" national bankruptcy law in the United States in 1898, and has accelerated since the advent of Chapter 11 in 1979. 5 The spread of Chapter 11 is thus understood in some quarters as part of the march of progress, an affirmation of the American approach to bankruptcy, 6 and an inevitable incident of globalization. 7

In this view, before the innovations in English and American bankruptcy law, bankruptcy everywhere tended to be primitive and punitive. Thus, we are told that "over the past three thousand years, the hapless debtor ... has been chastised and blamed, beaten and maimed, shunned by society, sold into slavery, and even put to ...
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