This paper ultimately seeks to promote a discussion that would have ideally been held before the safe harbors – defined as the provisions that allow market participants to ignore the core provisions of the Bankruptcy Code and other insolvency laws – were adopted by legislatures throughout...

In the Fall of 2008, Lehman Brothers had a $35 trillion derivatives portfolio, representing about 5% of the worldwide derivatives market. It was a party to approximately one million trades, under more than 6,000 ISDA master agreements.Lehman's derivatives were not the direct cause of its...

Sovereignty and sovereign immunity occur along a continuum. The kings and queens of old at one end; the North Hudson Sewerage Authority and its ilk at another. The need for a bankruptcy system to address financial distress varies inversely with a sovereign's place on the continuum. Queens and...

The absolute priority rule describes the basic order of payment in bankruptcy. Secured creditors get paid first, unsecured creditors get paid next, and only then do shareholders get paid, if at all. The rule has obtained a kind of unassailable, near scriptural status in the corporate...

Corporate debtors facing financial distress have a choice: file bankruptcy in their home jurisdiction or file in the United States. And some number of foreign corporations do file bankruptcy petitions in the United States.We expect this trend to increase in the coming years for two simple...

Clearinghouses are central to our financial system after Dodd-Frank. And they will remain central even if Dodd-Frank is repealed. But clearinghouses themselves are apt to be quite fragile in times of extreme financial stress, like that experienced in 2008. And strangely Dodd-Frank only addresses...

Among the collective wisdom about large corporate bankruptcy cases, the following points are almost undisputed: Longer chapter 11 cases cost more; Prepackaged chapter 11 cases cost less; Cases filed in New York or Delaware cost more; Fee examiners control the costs of big chapter 11 cases. But...