At the end of a forthcoming Columbia Law Review article, Lucian Bebchuk and Assaf Hamdani propose that Congress establish a National Corporate Law Commission to comprehensively review corporate law and — not surprisingly given their prior work — determine which aspects should be federalized.  Bebchuk and Hamdani mention in a footnote (fn 184 to be exact) that their preferred model for the corporate commission is . . . the National Bankruptcy Review Commission. 

Putting aside whether corporate law should be federalized, I’m wondering whether the bankruptcy commission is the right model.  For one thing, the bankruptcy commission had a limited existence (I remain hopeful that the provision in a recent Senate bill proposing to forcibly reconvene the bankruptcy commission will never become law).  But Bebchuk and Hamdani suggest in the article that they think a standing commission is preferable.  I’ll leave to the public choice scholars to discern the implications of the distinction here for purposes of turning commission recommendations into law.    In addition, the bankruptcy commission’s members were selected not only by Congress, as the authors indicate they desire for the corporate commission, but by the President and by the Chief Justice.  I suspect it was well understood that the late Chief Justice Rehnquist would choose federal judges for the bankruptcy commission (he chose one circuit judge and one bankruptcy judge). Given the underlying federalization mission that Bebchuk and Hamdani advocate for this commission, identifying the right judicial members of such a commission could be delicate. 

In any event, Bebchuk and Hamdani would like the corporate commission to consider the creation of a specialized federal corporate law court (they don’t advocate for the specialized court but note its possibility as a response to those who like the idea of the Delaware Chancery Court).  Here’s another place where the bankruptcy experience might be useful.  Bankruptcy cases are part litigation, part transactional, part administrative.  Assuming a specialized federal forum is justified at all, it seems that this is a better reason than in-depth knowledge of a substantive legal field.   Notably, the recently-created "business courts" in states like Nevada are far broader in jurisdictional scope than the Delaware Chancery Court (admittedly, the new courts would probably go out of business quickly if their jurisdiction was limited to corporate disputes as traditionally defined).  Even the Delaware Chancery Court is getting a bit more generalist; the state of Delaware has given the court jurisdiction over money damage technology disputes and mediation-only business disputes.   All this being said, one federalization possibility — certainly controversial — would be to expand the bankruptcy court to include corporate and related matters.  Greater legal integration of shareholders and creditors would be a good development, and perhaps more exposure to the governance of financially healthy corporations would aid courts in presiding over the bankruptcy cases of insolvent corporations.