Photo by nromagnaI recently found yet another striking illustration of the stark contrast between U.S. and European legislative efforts to explore comparative (foreign) solutions.
When the U.S. Congress was considering the wholesale revision of the Bankruptcy Act in the early 1970s, the Bankruptcy Commission report contained a section on "Contemporary Bankruptcy Experiences in Other Nations." I was excited to see this early openness to comparative analysis . . . until I read the two-paragraph section. After a number of observations on how different the "legal, economic, and social conditions" are in the U.S. and elsewhere, and without saying anything about the approach(es) taken by foreign systems, the report concluded glibly "the bankruptcy experience of other countries is not a useful resource." [H.R. Doc. No. 93-137, Pt. I, at 66 (1973)] Sigh. Granted, at least in my area of interest (consumer bankruptcy), there wasn't much to compare in the early 1970s, but one might have expected a bit more effort from U.S. policymakers . . .
In contrast, when Denmark set out to consider adopting the first consumer insolvency law in Continental Europe, it took careful account of comparative lessons to be learned. Like the U.S. commission's report, the 1982 report of the Danish commission assigned to explore this issue contains a section on "Foreign Law." [Betænkning on Gældssanering, nr. 957 (1982)] This section, though, is not two paragraphs, and it doesn't dismiss all foreign legislation as "not a useful resource." Instead, it undertakes an impressively sophisticated analyis of consumer bankruptcy legislation and practice in England, Ireland, the U.S., Canada, and New Zealand (11 pages). Though the approaches of these "Anglo-American" systems was ultimately rejected as inconsistent with Danish-Continental legal philosophy and practice, at least they considered--quite carefully and sensitively--relevant foreign models.
Note that the language of all of the systems considered by the Danes was English. So there's one less excuse for the U.S. Commission's failure to consider these comparative models. But it gets better! Midway through the Danish report's comparative consideration of U.S. law, it directs the reader to consider a lengthy passage from the legislative history of the U.S. Bankruptcy Code, enacted a few years earlier. The entire page-and-a-half passage is reproduced in English! The message is clear and impressive: Any educated reader of this Danish report would read English well enough as to not require a translation of the legislative history of the U.S. law. Stunning. Granted, a country with a language not widely in use, like Danish, might be expected to take seriously the notion of English proficiency, but the contrast between the attitudes and abilities of the Danish and U.S. bankruptcy commissions is shocking.
Unlike in the early 1970s, U.S. legislators now have a wealth of comparative analysis of both legislation and practice in European bankruptcy systems, especially consumer bankruptcy. Doug Boshkoff pioneered this area of research with his 1982 empirical article on the discharge process in England (Limited, Conditional, and Suspended Discharges in Anglo-American Bankruptcy Proceedings, 131 U. Pa. L. Rev. 69 (1982)). The rapidly developing consumer insolvency systems in Continental Europe have also been explored in detail in recent years (see, e.g., here and here).
So when Congress returned to the drafting table to revise (many would say deform) the consumer bankruptcy law in 2005, did they consider comparative experience then? I searched in vain for any comparative reference in the legislative history of BAPCPA (the 2005 reform law's acronym). So is Congress afraid, or does it just not care . . . ?
