Optimal Deterrence and the Preference Gap

67 Pages Posted: 13 Feb 2018 Last revised: 9 Aug 2018

See all articles by Brook Gotberg

Brook Gotberg

BYU Law School; University of Missouri School of Law

Date Written: August 9, 2018


It is generally understood that the way to discourage particular behavior in individuals is to punish that behavior, on the theory that rational individuals seek to avoid punishment. Laws aimed at deterring behavior operate on the assumption that increasing the likelihood of punishment or the severity of punishment, or both, will decrease the behavior, and the success of these laws is evaluated by how much the targeted behavior decreases. The law of preferential transfers, which punishes creditors who have been paid prior to the bankruptcy at the expense of other, unpaid creditors, has been defended on the grounds that it deters a race to collect from a struggling debtor. However, deterrence theory indicates that the low likelihood of punishment and the cap on punishment associated with preference law make it a very poor deterrence. Further, empirical evidence drawn from interviews with affected creditors, debtors, and attorneys on both sides demonstrate that in practice, preference law does little or nothing to deter targeted behavior, and in the process imposes significant costs. The weaknesses of preference law call for its significant revision, to place a greater focus on specific categories of creditors to be punished on account of their pre-bankruptcy activities.

Keywords: bankruptcy, deterrence, preferential transfers, chapter 11, trade creditors

Suggested Citation

Gotberg, Brook and Gotberg, Brook, Optimal Deterrence and the Preference Gap (August 9, 2018). University of Missouri School of Law Legal Studies Research Paper No. 2018-16, Available at SSRN: https://ssrn.com/abstract=3119695 or http://dx.doi.org/10.2139/ssrn.3119695

Brook Gotberg (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

BYU Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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