State Defiance of Bankruptcy Law

Bankruptcy is the principal device by which failing businesses and financially-troubled families get one last chance to reorganize their affairs back to financial health. It is also the graveyard for business failures, the place where we bury dead corporations and divide their remaining assets among their surviving creditors. In the last decade, the bankruptcy system has given seven million middle-class families a way to start over-an opportunity to save their homes from foreclosure, rid themselves of overwhelming debts, and reintegrate themselves into the workforce as productive citizens. It has also been the way that 10,000 corporations have restructured their way from failure to health, avoiding the disruptive costs of dissolution and liquidation and instead preserving jobs, stabilizing community tax bases, and fueling the longest period of economic expansion in United States history. Another 100,000 less fortunate corporations have had their funerals in bankruptcy, as their creditors have divided their assets and facilitated the redistribution of capital and labor resources that must accompany liquidation. Bankruptcy is the safety valve in America\u27s capitalist system: technical and arcane, but so important. For the last 100 years, bankruptcy has functioned efficiently, providing a vital lubricant at the rough edges of the American economy. We do not expect individuals to live life without hope and force them into the underground economy to avoid a mountain of debt. Nor do we discourage entrepreneurs from starting new ventures by holding them personally liable if that corporate venture fails. Instead, we give each individual and business person a fair chance to start over. This second chance breeds innovation and risk taking that puts the United States at the cutting edge of technological and scientific development. When our corporations experience liquidity problems, we do not allow lenders to shut them down and break them up. Rather, we permit sick businesses to file under chapter 11 to provide a breathing spell to rehabilitate themselves; if rehabilitation cannot be accomplished, we provide a forum for liquidation of the businesses for the collective good of all creditors

9th Biennial Judge Joe Lee Bankruptcy Institute

Materials from the 9th Biennial Judge Joe Lee Bankruptcy Institute held December 1999

No Exit? Withdrawal Rights and the Law of Corporate Reorganizations

Bankruptcy scholarship is largely a debate about the comparative merits of a mandatory regime on one hand and bankruptcy by free design on the other. By the standard account, the current law of corporate reorganization is mandatory. Various rules that cannot be avoided ensure that investors’ actions are limited and they do not exercise their rights against specialized assets in a way that destroys the value of a business as a whole. These rules solve collective action problems and reduce the risk of bargaining failure. But there are costs to a mandatory regime. In particular, investors cannot design their rights to achieve optimal monitoring as they could in a system of bankruptcy by free design. This Article suggests that the academic debate has missed a fundamental feature of the law. Bankruptcy operates on legal entities, not on firms in the economic sense. For this reason, sophisticated investors do not face a mandatory regime at all. The ability of investors to place assets in separate entities gives them the ability to create specific withdrawal rights in the event the firm encounters financial distress. There is nothing mandatory about rules like the automatic stay when assets can be partitioned off into legal entities that are beyond the reach of the bankruptcy judge. Thus, by partitioning assets of one economic enterprise into different legal entities, investors can create a tailored bankruptcy regime. In this way, legal entities serve as building blocks that can be combined to create specific and varied but transparent investor withdrawal rights. This regime of tailored bankruptcy has been unrecognized and underappreciated and may be preferable to both mandatory and free design regimes. By allowing a limited number of investors to opt out of bankruptcy in a particular, discrete, and visible way, investors as a group may be able to both limit the risk of bargaining failure and at the same time enjoy the disciplining effect that a withdrawal right brings with it