increase the focus on transactional work and on exposure to more practical skills such as interpretation of statutory codes and applicable rules, contract drafting, negotiation and so on. I have also seen ebbs and flows in students’ interest in bankruptcy law.
C: It appears you have a strong interest in bankruptcy jurisdiction…what trends do you see as challenges for the bankruptcy bar in that area?
SBL: Part of my interest stems from the fact that my bankruptcy court clerkship and position at the House Judiciary Committee happened to coincide with the Marathon decision and Congress’s efforts to salvage bankruptcy practice after Marathon, so I was immediately immersed in these issues. The topic remains interesting to me. The Supreme Court’s focus on Article III was not readily predictable and still hasn’t produced a cohesive and settled body of law. With a current trend toward challenges to the constitutionality of the administrative state, we may see Supreme Court jurisprudence that continues to narrow bankruptcy court jurisdiction. I hope not, but I wouldn’t be surprised.
C: You have also done extensive work over the years in two other areas – cross-border international issues and challenges to consumer credit regulation. On the international side, what trends or issues will be center-stage in the next few years?
SBL: My focus here has been to evaluate and study the role of international organizations in formulating international law and legislation on issues surrounding debt and financial decision making. In our book, Global Lawmakers, International Organizations in the Crafting of World Markets, Terence Halliday and I explore the role of the United Nations lawmaking efforts. Notably, Chapter 15 of the Bankruptcy Code, now adopted in about 45 nations, emerged in part from the UN’s work through its Commission on International Trade Law (UNCITRAL). As the legislation is applied and interpreted by the courts in the 45 countries that have adopted UNICTRAL’s Model Law on cross-border insolvency, the trail will be fascinating to keep track of.
C: On the consumer side, you are working on a new article about a common law implied warranty of fitness for ordinary purposes. Can you explain?
SBL: Yes, this draft, written with Ted Janger of Brooklyn Law School, is mostly a thought experiment. But not wholly. Because the American Law Institute (ALI) is working on a new Restatement of Consumer Contracts, we view the interplay of consumer financial protection through common law and regulation as more than just an academic interest. Janger and I assess boilerplate provisions in consumer finance contracts from the perspective of contract law, but quickly conclude that the tenets of contract law are deeply problematic when applied to contracts of adhesion. Because consumers don’t and really can’t negotiate over contract terms to protect themselves, Janger and I turn to the doctrines of implied obligations of good faith and implied warranties for help with consumer protection. Exploring these common law concepts – sounding as much in tort as in contract law – allows us in this draft article to explore the foundations of such protection; in future work, we plan to turn back to the subject of consumer financial protection through regulation.
C: We appreciate the breadth of your interest in many facets of bankruptcy law and look forward to your input and impact on College discourse. Are there any thoughts would you like to leave our Fellows with as you start this new role for the College?
SBL: Only that I’m excited to interact with the finest bankruptcy minds and look forward to interaction whether at conferences, programs or by email. I’m genuinely interested in knowing what issues practitioners are facing. I am sure that I am going to learn as much or more from acting in this new role as I may add as teacher or educator.
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