A Response to Professor Baird’s Essay on Unwritten Law: Writing Some Unwritten Law

Rich Levin comments that Professor Baird makes a useful point about the bankruptcy judge’s policing role and the importance of the boundaries of the field in which the players joust. Levin argues, however, that Baird’s unwritten rules are, in fact, available in writing to all who would search. Levin does not consider case law to be unwritten rules and concludes that we appoint judges to provide the elasticity in the rules so that they are applied sensibly and constructively to achieve fair and equitable results in reorganization cases that are consistent with Congress’s design.