Rescuing Business: The Making of Corporate Bankruptcy Law in England and the United States

By Bruce G. Carruthers; Terence C. Halliday | Go to book overview

8 Privatization and Nationalization of
Bankruptcy Administration

NEGOTIATING THE PUBLIC-PRIVATE BOUNDARY

Over the past years, political struggles in many advanced capitalist democracies have centered on the limits of the state. Dramatically exemplified by the policies of Thatcherism and Reaganism, political ideologies of the right have championed the expansion of the market as the most efficient means of allocating goods and services, with a correlative contraction of the state. This general restructuring of the public and private domains has direct and indirect consequences for the field of bankruptcy law and corporate reorganization. The more that the state intervenes directly to administer bankruptcies, the less work remains for private practitioners. Moreover, what kinds of bankruptcy work remain in the market or state affect status and monetary incentives for practitioners. The location of bankruptcy administration over the publicprivate boundary therefore directly implicates the jurisdictional interests of professionals.1

Reforms of bankruptcy law coincided with the exhaustion of Keynesian policies in Britain and disaffection with state interventionism in the United States. Inevitably, therefore, bankruptcy reforms were partially framed within widening policy debates over the relative merits of markets and states as agents of just and efficient public purpose. Indeed, the bankruptcy reforms embraced a rhetoric centered on the appropriate values to appraise market and state performance. Issues of efficiency and fairness co-existed with questions of commercial morality, public interest, protection of citizens, and public order.

____________________
1
In the field of bankruptcy, the Thatcher initiatives have a curiously reminiscent tone to legal historians. The central debate over bankruptcy administration in 19th cent. Britain turned precisely on this point: the degree of state intervention in the administration of bankruptcy. In the Victorian era, the location of bankruptcy administration manifested one aspect of the wider political debate over the scope of "officialism." The ambivalence of business and professionals over "officialism," and its benefits or detriments, not only divided government ministers, but resulted in oscillating policies that swung bankruptcy work back and forth between lawyers and accountants in the private market and civil service administration. Indeed, through much of the 19th cent., bankruptcy work represented one of the largest branches of public administration, exceeding the Home Office, and even the revenue departments ( Lester 1995).

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