McLachlan, Countryman, Westbrook. More than most areas of bankruptcy law, the bankruptcy law of leases and contracts has been influenced by law professors. McLachlan is generally credited for inventing the bankruptcy law of leases and executory contracts; specifically, for drafting section 70(b) of the Bankruptcy Act-the predecessor of section 365. Countryman's law review articles based on work he did for the Commission to Study the Bankruptcy Laws of the United States led to the "Countryman definition" of "executory contracts." Additionally, Westbrook's article urging the elimination of the term "executory contract" and a clarification of the consequences of rejection shaped the work of the National Bankruptcy Review Commission. Unfortunately, Congress, in amending section 365(b) in 2005, ignored the work for the National Bankruptcy Review Commission. And Mclachlan. And Countryman. And Westbrook. While newly revised section 365(b) can fairly be described as a "piece of work," it can not be blamed on the work of law professors.
David G. Epstein and Lisa Normand, Real-World and Academic Questions about Nonmonetary Obligations under the 2005 Version of 365(b), 13 Am. Bankr. Inst. L. Rev. 617 (2005).