Harvey Miller, Bankruptcy Trailblazer, Dies at 82

Bankruptcy law pioneer Harvey R. Miller has died at 82 after a battle with ALS. Mr. Miller, a partner at the New York law firm Weil, Gotshal & Manges, LLP, was a trailblazer in elevating the field of bankruptcy law from a dusty corner of the legal world to its key place today in most major law firms.

Mr. Miller, who created Weil’s bankruptcy practice, played a major role in almost all of the landmark Chapter 11 case—among them Lehman Brothers, General Motors, Worldcom and Enron—of recent years. He was also a valued contributor to Bankruptcy Beat, where his honest opinions and prodigious legal knowledge were equally admired.

As a tribute to Mr. Miller, here is an excerpt from his last column for us, from December.

The Examiners: Boost Bankruptcy Judges’ Powers

If you could make one change to the bankruptcy code, what would it be?

The question is a daunting one. It has been approximately 35 years since the effective date of the bankruptcy code. The world, and particularly the domains of finance and economics, has changed in a seismic sense since then.

Bankruptcy law must be attuned to the real world and be flexible enough to deal with changing circumstances as they occur. At the time of the enactment of the Bankruptcy Reform Act in 1978, it was universally agreed among all interested parties that a new, comprehensive bankruptcy law was necessary to protect the interests of the nation and to preserve the ability of distressed businesses to rehabilitate and reorganize themselves. Reorganization and rehabilitation were viewed as infinitely better than liquidation. At that time, it was a much simpler world. Financing of businesses was relatively uncomplicated. To a large extent, it was premised on unsecured credit. The bankruptcy code, as enacted, focused on resolution of unsecured credit as the primary source of distress for businesses and individuals. Since that time, the nature of financing has changed dramatically, as almost all credit extended in today’s economy is collaterally secured by liens and encumbrances against the borrower’s assets. The evolving economic changes—with the emergence of a new economy facilitated by a shadow banking system, hedge funds, distressed debt traders and activists—has caused major changes in the administration of bankruptcy cases and the reorganization paradigm. The application of the underlying principles and philosophy of the bankruptcy code has been left to the judgment and discretion of bankruptcy judges to construe provisions of an antiquated bankruptcy code to achieve effective results. This has led to non-uniform and sometimes inconsistent results.