The time has come to cast a discerning eye at chapter 11 and examine how it is currently broken and what fixes can be made to improve it. This Article first explains what the congressional reformers of the 1970s dreamed that chapter 11 could and should be, and identifies five core normative...

This paper takes the position that a legal regime best promotes entrepreneurial activity if that regime offers a viable system to resolve the financial affairs of a distressed individual entrepreneur. I call this a “failure resolution system” (FRS). Consciously recognizing the need for and...

The Chrysler and General Motors bankruptcy reorganizations represent the culmination of a sea-change in corporate restructuring practice that has occurred largely over the course of just the past decade. A bankruptcy reorganization has traditionally been effectuated though a chapter 11 plan of...

It is part of the received wisdom in bankruptcy jurisprudence that the Fifth Amendment Takings Clause independently limits the exercise of the bankruptcy power under the Bankruptcy Clause. In particular, secured creditors in bankruptcy are assumed to enjoy a constitutional right to receive the...

With the recent amendments Congress made to the Bankruptcy Code in 1994, this article examines the history of bankruptcy legislation prior to the Bankruptcy Code's enactment in 1978, the history of the passage of the Bankruptcy Code in 1978, bankruptcy legislation subsequent to the Bankruptcy...

This article examines the proper scope of the financial fresh start provided an individual debtor by the discharge in bankruptcy. The legal effect of the discharge is powerful in its simplicity: the debtor is freed from the obligation to pay prebankruptcy debts. A difficulty lies, however, in...

Sometime over the past decade-and-a-half, the conventional wisdom that a chapter 11 reorganization was more "economically efficient" than a liquidation shifted dramatically to the point where intelligent people take seriously the suggestion that chapter 11 should be repealed. This article...

Dating back to the Bankruptcy Act of 1898, it was acknowledged that Congress has always, in the history of bankruptcy legislation, "carefully endeavored to preserve a distinction between what may be termed guilty and innocent preferences." This article argues that many of the currently protected...

This article examines several of the National Bankruptcy Review Commission's proposals regarding bankruptcy preference law, after the Commission completed two years of intensive study of the Bankruptcy Code. After reviewing the conceptual underpinnings of bankruptcy preference law and the...

In response to Professor Barry Adler's paper, Bankruptcy Primitives, where he argued that "[b]ankruptcy law could better serve its basic functions with greater freedom of contract both for individual and corporate debtors," this short essay argues that a non-waivable bankruptcy system, with a...