The Bankruptcy Code Without Safe Harbors

American Bankruptcy Law Journal, Vol. 84

Seton Hall Public Law Research Paper No. 1569627

24 Pages Posted: 17 Mar 2010 Last revised: 8 Apr 2010


In prior work I have argued that the derivative “safe harbors” in the Bankruptcy Code should be either repealed, or at least greatly reduced in scope. This argument is based on the mismatch between the safe harbors and their stated goal – reducing systemic risk.

But upon repeal of the safe harbors, what happens next? Is it sufficient to remove the safe harbors from the Bankruptcy Code, or must the Code be further adapted to reflect the prevalence of derivatives throughout the economy? And if repeal is not enough, what kinds of issues should the Bankruptcy Code legitimately accommodate, and what issues are simply disguised versions of the general plea of all creditors to be excused from the normal consequences of default?

This short paper examines these and other related questions, and begins to sketch a roadmap for reforming the Code’s handling of financial contracts.

Keywords: Chapter 11, safe harbors, derivatives, Lehman, AIG, bankruptcy, systemic risk, financial reform, SIVs, repos

JEL Classification: K22, G28, G33, G38, K20, K23, G34, G32, G33

Suggested Citation

Lubben, Stephen J., The Bankruptcy Code Without Safe Harbors. American Bankruptcy Law Journal, Vol. 84, Seton Hall Public Law Research Paper No. 1569627, Available at SSRN:

Stephen J. Lubben (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8857 (Phone)

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