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...

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...

In this paper we focus on the concern that a preference for quick sales over traditional reorganization cases - which we see in both the United States and Canada - might allow the debtor's management to work with secured lenders to extract assets from the debtor in a way that would not be...

I use the occasion of my inaugural Wiley lecture to set forth my understanding of corporate governance. I will refer to my model of corporate governance as the “horizontal model” of corporate governance, because my central argument is that the key aspects of corporate governance – which I...

In this paper our goal is to identify the core of corporate bankruptcy law that parties cannot achieve on their own, no matter how robust their contract law. Our approach takes organizational law as starting point and we posit that bankruptcy law is a necessary addition to organizational law....

This comment letter was recently submitted to the FDIC in response to their Single Point of Entry (SPOE) Strategy for implementing Dodd Frank's Orderly Liquidation Authority (Federal Register/Vol. 78, No. 243).In the comment letter, I describe SPOE as a promising first start, but urge the agency...

We are in the midst of the most significant financial crisis since the New Deal, yet chapter 11 is notable mostly for its absence. Chapter 11 is thing that wrecked Lehman Brothers, and perhaps the credit markets. And the thing that the Federal Reserve and Treasury worked so hard to keep AIG and...

Over the last decade, the availability of credit default swaps (CDS) has dramatically transformed the markets for credit insurance by providing participants efficient avenues through which to share credit risks. These risk-sharing benefits notwithstanding, the growth of credit default swaps...