Bankruptcy has a tort problem. Chapter 11 predictably subordinates the claims of tort and other involuntary creditors to those of financial lenders, a fact which encourages firms to rely excessively on secured debt and discount the interests of those they might incidentally harm. For this...

Corporate reorganization under Chapter 11 of the Bankruptcy Code is built on the foundation of the absolute priority rule, which requires that senior creditors be paid in full before any value can be distributed to junior creditors. The standard law and economics understanding is that absolute...

In RadLAX Gateway Hotel, LLC v Amalgamated Bank, the Supreme Court's statutory interpretation focuses on an emerging theme of its bankruptcy jurisprudence: the proper domain of the bankruptcy judge. While one might expect the Court to approach that question of domain as it has for administrative...

Bankruptcy scholarship is largely a debate about the comparative merits of a mandatory regime on one hand and bankruptcy by free design on the other. By the standard account, the current law of corporate reorganization is mandatory. Various rules that cannot be avoided ensure that investors'...

This article provides a framework for analyzing side agreements in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by one party to remain silent – to waive some procedural right they would...

This Article reconsiders the implementation of Article III in the bankruptcy context. Recent rulings limiting the delegation of adjudicative power to non-Article III tribunals have generated only uncertainty and a profusion of litigation. The reason for this is that the Court's Article III cases...

A fundamental question for corporate bankruptcy law is why it exists in the first place. To put it another way, why do we have special rules that apply only in financial distress? The conventional law-and-economics answer—known as the Creditors' Bargain Theory—identifies two core purposes of...

Many current bankruptcy debates—from critical vendor orders to the Supreme Court's decision last year in Czyzewski v. Jevic Holding Corporation—begin with bankruptcy's distributional rules and questions about how much discretion a judge should have in applying them. It is a mistake, however,...

Defining failures and pathologies can be difficult. Finding and fixing them can be even more difficult. This is the main lesson of Morrison and Uettwiller's essay on Consumer Bankruptcy Pathologies (Morrison and Uettwiller, 2017). The essay is a major contribution to the literature on consumer...

In this article, I attempt to clarify the appropriate government tools for responding to different forms of market distress in times of crisis. I provide my analysis in the context of the United States responses to market distress related to the COVID-19 pandemic.With the exception of measures...