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Three Ages of Bankruptcy

35 Pages Posted: 17 Nov 2016 Last revised: 2 May 2017

Mark J. Roe

Harvard Law School

Date Written: April 26, 2017

Abstract

During the past century, three decision-making systems have arisen to accomplish a bankruptcy restructuring—judicial administration, a deal among the firm’s dominant players, and a sale of the firm’s operations in their entirety. Each is embedded in the Bankruptcy Code today, with all having been in play for more than a century and with each having had its heyday, its dominant age. The shifts, rises, and falls among decision-making systems have previously been explained by successful evolution in bankruptcy thinking, by the happenstance of the interests and views of lawyers that designed bankruptcy changes, and by the interests of those who influenced decision-makers. Here I argue that these broad changes also stem from baseline market capacities, which shifted greatly over the past century; I build the case for shifts underlying market conditions being a major explanation for the shifts in decision-making modes. Keeping these three alternative decision-making types clearly in mind not only leads to better understanding of what bankruptcy can and cannot do, but also facilitates stronger policy decisions today here and in the world’s differing bankruptcy systems, as some tasks are best left to the market, others are best handled by the courts, and still others can be left to the inside parties to resolve.

Keywords: Bankruptcy, Restructuring, Priority, Rent-Seeking, Creditors' Bargain, Reorganization, Derivatives, Financial Crisis, Repo, Special Purpose Vehicle

JEL Classification: G18, G30, C34, G38, J52, K11, K12, K22, L21, L62

Suggested Citation

Roe, Mark J., Three Ages of Bankruptcy (April 26, 2017). Available at SSRN: https://ssrn.com/abstract=2871625 or http://dx.doi.org/10.2139/ssrn.2871625

Mark J. Roe (Contact Author)

Harvard Law School ( email )

Griswold 502
Cambridge, MA 02138
United States
617-495-8099 (Phone)
617-495-4299 (Fax)

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