The Yale Law Journal

Bankruptcy

Article

Governance Reform and the Judicial Role in Municipal Bankruptcy

Clayton P. Gillette & David A. Skeel, Jr.

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and limitations of using the Bankruptcy Code to adjust municipal debt. In this Article, we contend that, to resolve fully the distress of a substantial city, mun…

Note

Debtor’s Dilemma: The Economic Case for Ride-Through in the Bankruptcy Code

Amber J. Moren


122 Yale L.J. 1594 (2013).

Following the 2005 amendments to the Bankruptcy Code, a Chapter 7 debtor hoping to retain an encumbered asset such as a motor vehicle after bankruptcy faces at least five options. The Bankruptcy Code allows a debtor to redeem the asset, reaffirm the debt, or convert to a Ch…

Note

Bankruptcy-Proof Finance and the Supply of Liquidity

Nathan Goralnik


122 Yale L.J. 460 (2012).

The 2008 financial crisis has prompted widespread criticism of the bankruptcy safe harbors for repurchase agreements (repos) and derivatives, which allow a failed firm’s counterparties to enforce these contracts outside of the bankruptcy process. The emerging consensus holds…

Feature

Bankruptcy, Backwards: The Problem of Quasi-Sovereign Debt

Anna Gelpern


121 Yale L.J. 888 (2012).

This Feature considers the debts of quasi-sovereign states in light of proposals to let them file for bankruptcy protection. States that have ceded some but not all sovereign prerogatives to a central government face distinct challenges as debtors. It is unhelpful to analy…

Note

The Economic Logic of the Lease/Loan Distinction in Bankruptcy

Daniel Hemel

120 Yale L.J. 1492 (2011). 

The Bankruptcy Code accords much more favorable treatment to lessors than to secured lenders, but legal scholars have yet to identify a normative justification for the disparate treatment of the two transaction types. Law-and-economics scholars have written off the lease…

Note

Bankruptcy as Constitutional Property: Using Statutory Entitlement Theory To Abrogate State Sovereign Immunity

Joseph Pace

119 Yale L.J. 1568 (2010). 

In the decade following Seminole Tribe’s ruling that Article I is not a grant of authority to abrogate state sovereign immunity, scholars and courts overwhelmingly agreed that the Eleventh Amendment barred Congress from subjecting states to suit in bankruptcy proceedings…

Article

Antibankruptcy

Douglas G. Baird & Robert K. Rasmussen

119 Yale L.J. 648 (2010). 

In large Chapter 11 cases, the prototypical creditor is no longer a small player holding a claim much like everyone else’s, but rather a distressed debt professional advancing her own agenda. Secured creditors are more pervasive and enjoy much more control than they had e…

Comment

Applying the Absolute Priority Rule to Nonprofit Enterprises in Bankruptcy

Amelia Rawls

118 Yale L.J. 1231 (2009).

Article

The Case for Symmetry in Creditors' Rights

Richard Squire

118 Yale L.J. 806 (2009).

 

Using an original framework for evaluating bankruptcy rules, this Article casts doubt on the efficiency of legal arrangements that give some creditors an absolute advantage over others in the division of a debtor’s assets. Such arrangements, which I classify as asymmetr…

Essay

Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain

Douglas G. Baird & Donald S. Bernstein

115 Yale L.J. 1930 (2006)

In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation…

Note

Bailing Out Congress: An Assessment and Defense of the Air Transportation Safety and System Stabilization Act of 2001

Jonathan Lewinsohn

115 Yale L.J. 438 (2005)

This Note provides the first detailed account of the conception, impact, and success of the Air Transportation Safety and System Stabilization Act (ATSSSA) of 2001, an $18 billion federal bailout of the airline industry passed eleven days after the terrorist attacks of Septem…

Comment

The Unfinished Business of Bankruptcy Reform: A Proposal To Improve the Treatment of Support Creditors

Bryan W. Leach

115 Yale L.J. 247 (2005)

Amid the controversy surrounding the recently enacted Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (2005 Act), few commentators have focused on the Act's provisions designed to enhance the protection of "support creditors"--a class of creditors consisting …

Note

More Equal than Others: Defending Property-Contract Parity in Bankruptcy

Blake Rohrbacher

114 Yale L.J. 1099 (2005)

Contracts create property; contractual rights and obligations are property. In bankruptcy, however, this aspect of nonbankruptcy law is often not recognized. This Note argues that bankruptcy law and policy should recognize the property in contract. This Note examines instanc…

Article

A Dilution Mechanism for Valuing Corporations in Bankruptcy

Barry E. Adler & Ian Ayres

111 Yale L.J. 83 (2001)

This Article proposes a new mechanism for valuing firms in bankruptcy. Under the "senior dilution" mechanism, a court would dilute the reorganized stock issued to senior claimants by issuing additional shares to junior claimants until there was no excess demand for the stock a…

Article

Currency Policies and Legal Development in Colonial New England

Claire Priest

110 Yale L.J. 1303 (2001)

This Article presents a new interpretation of the relation of law to economic development in colonial New England. Prior legal historical scholarship has focused almost exclusively on judicial decisionmaking, emphasizing judges' role in adapting the law in some optimal way …