Lawyers, Judges and Unwritten Rules

Professor Bruce Markell adds to the discussion on Professor Baird’s piece by offering a different perspective on the origin and enforcement of the unwritten rules. The author agrees with Professor Baird’s conclusions, but differs on what has shaped both the current set of unwritten rules and the role of the judge in their application. He first explains his understanding of the role of fraud in avoiding transactions. He then assesses Professor Baird’s perception of the role of the bankruptcy judge in corporate reorganizations.

He concludes with a counternarrative, based on the Marquess of Queensbury’s rules for boxing, for the role of the judge.