By Alex Huang (University of Hong Kong)
Bankruptcy law professors often remind their students that although the Bankruptcy Code has remained largely stable, the practice of bankruptcy has been anything but static. Over time, Chapter 11 practice has undergone a paradigm shift: from debtor control to creditor control.
How, then, might one document a legal paradigm shift? Two dimensions offer insight. The first is case outcomes, which record the effects of law: who wins, what is approved by judges, and what events occur. The second is case content, which captures how law is interpreted and applied. Judges are expected to articulate the legal rationales that justify case outcomes, drawing on statutes, precedents, and doctrines.
In Chapter 11’s paradigm shift, many empirical studies have documented changes in case outcomes: increased CEO turnover, shorter case durations ending in rapid going-concern sales, and reduced recovery rates for shareholders. Yet systematic research on case content remains largely absent. Has case content in Chapter 11 changed? If so, how has it evolved?
Bankruptcy Law’s Doctrinal Evolution: An Empirical Study, forthcoming in the American Business Law Journal, addresses the questions above. It finds a doctrinal evolution from unbundling to bundling.
Building on prior work, this article adopts a framework that maps bankruptcy law onto two dimensions: operational issues and distributional issues. Sections accordingly fall into two categories: operational sections, which govern the deployment of assets and access to new financing—for example, Sections 363 and 364—and distributional sections, which determine how value is allocated among creditors, most prominently Sections 1121–1129.
This study traces the doctrinal evolution of Chapter 11 over more than three decades based on approximately 6500 opinions. In the earlier periods (1982–1993 and 1994–2005), operational and distributional decisions were made largely in isolation. By contrast, in the most recent period (2006–2017), they increasingly appear to have been made simultaneously.
The paper links stronger co-citation patterns to evolving deal structures. In modern bankruptcy practice, distributional decisions are increasingly bundled with operational ones. Bundling strategically circumvents the priority rule by leveraging the threat of firm-value destruction, thereby securing favorable distributions for certain creditors. As judges oversee more bundled transactions, sections of different types are co-cited more frequently.
The study begins with an individual-level co-citation analysis, which serves as a proxy for doctrinal relationships by capturing how judges connect sections in their reasoning. This approach is valid as judges tend to co-cite sections that are doctrinally related.
The study further constructs a global-level network representation of Chapter 11 cases, treating sections as nodes and co-citation links as edges. Applying community detection algorithms reveals structural shifts in the bankruptcy law network. From the 1980s through the early 2000s, operational and distributional communities remained largely distinct. In later years, however, these communities began to converge, as sections such as 363 and 364—once firmly situated within the operational cluster—became integrated into the distributional community.
This article contributes to the bankruptcy law literature by showing how case content has evolved. Bundling emerges as the legal mechanism through which creditor control is exercised. More broadly, the computational doctrinal framework developed here is applicable to other areas of statutory law.
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