The Law and Economics of Investing in Bankruptcy in the United States

33 Pages Posted: 24 Apr 2020 Last revised: 2 Mar 2021

Date Written: February 10, 2020


Claims trading has become a significant and controversial feature of American bankruptcy practice over the past thirty years. This Report chronicles the rise of claims trading in the second decade of the Bankruptcy Reform Act of 1978 and analyzes the various policy concerns it raises. Most importantly, claims trading has led to, and been accelerated by, the development of an industry of specialized distressed investors who raise billions of dollars of capital to buy and sell the claims of Chapter 11 debtors. Despite attracting periodic concerns from policy-makers, the legal institutions of Chapter 11 appear to have mostly proven capable of handling the concerns raised by claims trading. In sum, the best interpretation of the available empirical evidence is that claims trading and activist investing has, at the very least, not harmed Chapter 11 or distressed corporations and may have actually improved the capacity of the American bankruptcy system to reorganize distressed assets.

Keywords: bankruptcy; activist investors; corporate governance; restructuring; corporate finance

JEL Classification: K22; G33

Suggested Citation

Ellias, Jared A., The Law and Economics of Investing in Bankruptcy in the United States (February 10, 2020). Available at SSRN: or

Jared A. Ellias (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States


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