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Strategic Judgment Proofing

By Yeon-koo Che and Kathryn E. Spier


A liquidity-constrained entrepreneur needs to raise capital to fi-nance a business activity that may cause injuries to third parties — the tort victims. Taking the level of borrowing as fixed, the entrepreneur finances the activity with senior debt in order to shield assets from the tort victims in bank-ruptcy. Interestingly, senior debt serves the interests of society more broadly: it creates better incentives for the entrepreneur to take precautions than either ju-nior debt or outside equity. Unfortunately, the entrepreneur will raise a socially excessive amount of senior debt, reducing his incentives for care and generat-ing wasteful spending. Giving tort victims priority over senior debtholders in bankruptcy prevents over-leveraging but leads to suboptimal incentives. Lender liability exacerbates the incentive problem even further. A Limited Subordina-tion Rule, where the firm may issue senior debt up to an exogenous limit after which any further borrowing is treated as junior to the tort claim, dominates these alternatives. Mandatory liability insurance and punitive damages are also discussed

Topics: the judgment proof problem, strategic judgment proofing, capital structure, subordination, lender liability, limited subordination 2
Year: 2005
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