Of Contractarians and Bankruptcy Reform: A Skeptical View

Abstract

In response to Professor Barry Adler’s paper, Bankruptcy Primitives, where he argued that "[b]ankruptcy law could better serve its basic functions with greater freedom of contract both for individual and corporate debtors," this short essay argues that a non-waivable bankruptcy system, with a supervised bankruptcy process, and a non-waivable discharge right, are not only important, but are necessary and essential. In short, this essay seeks to support the proposition that bankruptcy should be a mandatory rule, rather than merely a default rule.