The End of Bankruptcy

Abstract

The law of corporate reorganizations is conventionally justified as a way to preserve a firm’s going-concern value: Specialized assets in a particular firm are worth more together in that firm than anywhere else. This paper shows that this notion is mistaken. Its flaw is that it lacks a welldeveloped understanding of the nature of a firm. Initially, it is easy to confuse size with specialization and overstate the extent to which assets are dedicated to a particular enterprise. Even when such dedicated assets exist, they often do not need to stay in the same firm. As Coase taught us, as the costs of contracting go down, so too does the value of keeping assets in a particular firm. But even when specialized assets must be kept inside a firm, two other forces limit the need for a traditional law of corporate reorganizations. Capital structures are increasingly designed with financial distress in mind. For these firms, control rights shift from one set of investors to another as the firm encounters difficulty. Such firms either never file for bankruptcy, or, if they do, it is only to vindicate the predetermined allocation of control rights. Even where control rights are not sensibly allocated, a quick sale of the firm restores order. When firms can be sold as going concerns, the need for the traditional negotiated plan of reorganization disappears. The vast majority of firms in financial distress never enter bankruptcy. Today the Chapter 11 of a large firm is an auction of the assets, followed by litigation over the proceeds. To the extent we understand the law of corporate reorganizations as providing a collective forum in which creditors and their common debtor fashion a future for a firm that would otherwise be torn apart by financial distress, we may safely conclude that its era has come to an end. * Harry A. Bigelow Distinguished Service Professor, University of Chicago Law School. Forthcoming in the Stanford Law Review. ** Associate Dean for Academic Affairs and Professor of Law, Vanderbilt Law School. We thank Barry Adler, Marcus Cole, Michael Hilgers, Richard Levin, Alan Littmann, Eric Posner, Mark Ramseyer, and David Skeel for their help. Prior versions of this Article were presented at the University of Chicago Law School and the Annual Meeting of the American Law and Economics Association. For his support and insight throughout this project, we are especially grateful to our colleague Edward Morrison. We also thank the John M. Olin Foundation, the Sarah Scaife Foundation, the Lynde & Harry Bradley Foundation, and the Dean’s Fund at Vanderbilt for research support. Baird & Rasmussen, page 2