The American Bankruptcy Law Journal (“ABLJ”) is proud to be celebrating its 100th anniversary (together with the National Conference of Bankruptcy Judges (“NCBJ”)) throughout 2026. For the past 100 years, the ABLJ has published scholarly articles addressing cutting edge and timely issues in the bankruptcy and commercial law fields. The ABLJ continues this tradition with the release of Volume 100:1, which features four impressive articles that every bankruptcy professional must read.

The Issue opens with the first of a two-part series by Professor Bruce Grohsgal that explores the history of the ABLJ and the NCBJ. Professor Grohsgal’s work is not just a historical piece but a reminder of bankruptcy’s past and how that might inform its future. We look forward to publishing part two in Issue 100:2. Professor Steven Schwartz and Isabelle Stewart continue this trend of reviewing the past to learn about the future in their article discussing how bankruptcy professionals should and should not analyze contract recharacterization disputes. The third article is an insightful empirical piece by Professors Vincent S.J. Buccola, Adi Marcovich Gross, and Matthew R. McBrady, concerning ad hoc creditor groups that underwrite or “backstop” a debtor’s capital raise and how that structure impacts value allocation in the chapter 11 plan process. Finally, Professor Bartell offers a thorough examination of the history to, and expansion of, a trustee’s powers under section 544(a) of the Bankruptcy Code and its implications for bankruptcy cases.

We hope you enjoy each of these articles and come away with at least one new or different perspective on current bankruptcy practice. The ABLJ strives to inform, inspire, and enhance the work of those in the bankruptcy and commercial law fields.

Honorable Michelle M. Harner
Editor in Chief

IN THIS ISSUE

The National Conference of Bankruptcy Judges (the NCBJ), from its formation as an association of bankruptcy referees 100 years ago, has played an outsized role in the development of United States bankruptcy law. This article, Part I of two Parts, recounts the NCBJ’s crucial involvement in the Depression-era Chandler Act that in 1938 overhauled the law, the NCBJ’s surviving an existential crisis in the 1940s when both filings and the number of bankruptcy referees dropped precipitously, and the NCBJ’s unflagging efforts beginning in the 1960s to increase the referees’ judicial authority and status and ensure adoption of the 1973 Bankruptcy Rules that renamed them “judges.”

Read it, here.

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“Recharacterizing Contracts: the Sale-versus-Loan Problem of Receivables Financing” addresses the recurring issue of how to distinguish a sale of receivables from a loan secured by receivables. The authors note that the present caselaw is “muddled and inconsistent” and veers far from the basic contract and property rights analysis that is necessary to examine these agreements. This uncertainty impairs receivables financing and stunts the growth of corporations who have substantial receivables that could be used to fuel their development. The Article offers a multi-part analysis that while rigorous, is consistent with the fundamental legal principles underlying these contracts: 1) the intention of the parties (examining, for example, how the parties label the contract and whether it contains explicit “this is a sale” language), 2) the transfer of risks – the degree to which the risks associated with the receivables have been shifted from transferor to transferee, including the degree of recourse, and 3) the transfer of benefits – whether the benefits associated with the receivables have sufficiently shifted from the transferor to the transferee to constitute a sale, including an examination of any alienability restrictions.

Read it, here.

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The fairness of backstop financing commitments in the recapitalization of chapter 11 debtors has beguiled constituents in the bankruptcy practice. Based upon an empirical examination of leading cases, the arguments, consequences, and rewards of this form of financial support by backstop creditors are here scrutinized, balanced, and, in part, rebuked. The continued utility of this form of financial accommodation in sizeable chapter 11 reorganizations inevitably invites deeper scrutiny of its necessity and risks in each case, and consideration of the imposition of process protections to reasonably serve principles of equality of treatment, enhanced transparency, fundamental fairness, and similar opportunities for similar constituents.

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Should a trustee’s avoidance powers be Herculean or be limited to that of a mere mortal? Over time, a trustee’s “rights and powers” to avoid claims under § 544 have expanded in some courts to include claims of not just lien creditors (hypothetical or not), but to all creditors. In her article The Strong Arm Power on Steroids – Expanding Non-Avoidance Trustee Claims Under § 544(a)(1), Professor Larua B. Bartell from Wayne State University Law School examines the history and evolution of trustee avoidance powers from the Act to the Code and concludes that the creeping expansion of the scope of trustee’s avoidance powers over time, despite the potential benefits to the trustee, creditors, and the estate, is contrary to both the language of the Code and Congressional intent. Ultimately, she argues that the trustee’s avoidance “muscles” should not be “pumped up,” but instead should be deflated back to the levels supported by the Code and Congressional intent.

Read it here.

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