{"id":5246,"date":"2025-02-15T20:20:17","date_gmt":"2025-02-16T01:20:17","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/hblr\/?page_id=5246"},"modified":"2025-08-19T12:44:23","modified_gmt":"2025-08-19T16:44:23","slug":"bankruptcy-restructuring","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/hblr\/bankruptcy-restructuring\/","title":{"rendered":"Bankruptcy & Restructuring"},"content":{"rendered":"\n
VOLUME 11 \u2022 COLUMNS<\/h5>\n\n\n\n

ESTIMATING THE NEED FOR ADDITIONAL BANKRUPTCY JUDGES IN LIGHT OF THE COVID-19 PANDEMIC<\/a><\/strong><\/h3>\n\n\n\n
Benjamin Iverson, Jared A. Ellias, and Mark Roe1<\/a><\/sup>BYU Marriott School of Business; University of California, Hastings College of the Law; and Harvard Law School. The authors thank Jacob Barrera, Denise Han, Jessica Ljustina, Spencer Kau, Victor Mungary, Julia Staudinger, and Sara Zokaei for research assistance. We earlier, at the very beginning of the COVID-19 crisis, wrote a report on the potential pressure on bankruptcy judicial capacity due to the Covid-19 crisis, on which this document is based. That report was endorsed by a group of bankruptcy academics and then forwarded to Congress. For recent Congressional action related to our report, see infra note 8.<\/span><\/h6>\n\n\n\n

In this Article, we present the first effort to use an empirical approach to bolster the capacity of the bankruptcy system during a national crisis\u2014here, the COVID-19 crisis. We provide two analyses, one using data from May 2020, very early on in the crisis, and another using data from September 2020, closer to the publication of this Article. Our analysis is based on an empirical observation: Historically, an increase in the unemployment rate has been a leading indicator of a rise in bankruptcy filings. If this historical trend continues to hold, the May 2020 unemployment rate of 13.3% would have predicted a substantial increase in bankruptcy filings and the lower September 2020 level would still predict noticeably increased filings. Clearly, governmental assistance, the unique features of the COVID-19 pandemic, the possibility of a quick economic recovery, and judicial triage are likely to reduce the volume of bankruptcies and increase the courts\u2019 capacity to handle those that occur. It is also plausible that the recent unemployment spike will be short-lived\u2014indeed, by September 2020, the rate had declined to 7.9%. Further, medical solutions to the underlying pandemic\u2014such as the recent initial distribution of an effective vaccine\u2014would further reduce the pressure on the bankruptcy system. Yet, even assuming that the worst-case scenarios are averted, our analysis suggests that a substantial investment in the bankruptcy system resources should be considered, even if only on a standby basis.<\/p>\n\n\n\n

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VOLUME 7 \u2022 ISSUE 1 \u2022 PRINT<\/h5>\n\n\n\n

TOO IMPORTANT TO FAIL: BANKRUPTCY VERSUS BAILOUT OF SOCIALLY IMPORTANT NON-FINANCIAL INSTITUTIONS<\/a><\/h3>\n\n\n\n
Shlomit Azgad-Tromer<\/strong><\/em><\/h6>\n\n\n\n

Systemically important financial institutions are broadly considered to impose a risk to the entire economy upon failure; thus taxpayers act upon their failure, providing them with an implied insurance policy for ongoing liquidity. Yet taxpayers frequently provide de facto liquidity insurance for non-financial institutions as well. Taxpayer money is used to rescue hospitals, utility providers, and major employers.<\/p>\n\n\n\n

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VOLUME 14 \u2022 ISSUE 1 \u2022 PRINT<\/h5>\n\n\n\n

THREE AGES OF BANKRUPTCY<\/a><\/h3>\n\n\n\n
Mark J. Roe<\/em><\/strong><\/h6>\n\n\n\n

During the past century, three decision-making systems have arisen to accomplish a bankruptcy restructuring\u2014judicial administration, a deal among the firm\u2019s dominant players, and a sale of the firm\u2019s operations in their entirety. Each is embedded in the Bankruptcy Code today, with all having been in play for more than a century and with each having had its heyday, its dominant age. The shifts, rises, and falls among decision-making systems have previously been explained by successful evolution in bankruptcy thinking, by the happenstance of the interests and views of lawyers that designed bankruptcy changes, and by the interests of those who influenced decision-makers. Here I argue that these broad changes also stem from baseline market capacities, which shifted greatly over the past century; I build the case for shifts underlying market conditions being a major explanation for the shifts in decision-making modes. Keeping these three alternative decision-making types clearly in mind not only leads to better understanding of what bankruptcy can and cannot do, but also facilitates stronger policy decisions today here and in the world\u2019s differing bankruptcy systems, as some tasks are best left to the market, others are best handled by the courts, and still others can be left to the inside parties to resolve.<\/p>\n\n\n\n

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VOLUME 6 \u2022 ISSUE 2 \u2022 PRINT<\/h5>\n\n\n\n

BARGAINING BANKRUPT: A RELATIONAL THEORY OF CONTRACT IN BANKRUPTCY<\/a><\/h3>\n\n\n\n
Jonathan C. Lipson<\/strong><\/em><\/h6>\n\n\n\n

This Article studies the growing use of contract in bankruptcy. Sophisticated \u201cdistress\u201d investors (for example, hedge funds and private equity funds) increasingly enter into contracts amongst themselves and corporate debtors during bankruptcy in order to evade \u201cmandatory\u201d rules on the priority of distribu- tions, thus preferring themselves at the expense of other stakeholders (for example, employees of the corporate debtor). Bankruptcy courts that supervise these cases struggle with these priority-shifting contracts. They are asked to approve them, but have little theoretical or doctrinal guidance on how to assess them.<\/p>\n\n\n\n

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VOLUME 5 \u2022 ISSUE 1 \u2022 PRINT<\/h5>\n\n\n\n

SOVEREIGN DEBT RESTRUCTURING: EVALUATING THE IMPACT OF THE ARGENTINA RULING<\/a><\/h3>\n\n\n\n
Laura Alfaro<\/strong><\/em><\/h6>\n\n\n\n

Recent rulings in the ongoing litigation over the pari passu clause in Argentinian sovereign debt instruments have generated considerable controversy. Some public sector participants and academic articles have suggested that the rulings will disrupt or impede future sovereign debt restructurings by encouraging holdout creditors to litigate for full payment instead of participating in negotiated exchange offers. This paper critically examines this claim and argues that the incentives for holdout litigation are limited because of (1) significant constraints on creditor litigation, (2) substantial economic and reputational costs associated with such litigation, and (3) the availability of contractual provisions and negotiating strategies that mitigate the debtor\u2019s collective action problems. It also argues that the fact-specific equitable remedy in the current Argentina case was narrowly tailored to Argentina\u2019s unprecedented disregard for court opinions and for international norms of negotiating sovereign debt restructurings and is therefore unlikely to be used in future debt restructurings.<\/p>\n\n\n\n

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VOLUME 5 \u2022 COLUMNS<\/h5>\n\n\n\n

WHY THE LACK OF INTEREST IN INTEREST? ANOTHER LOOK AT PREFERENCES AND SECURED CREDITORS<\/strong><\/a><\/h3>\n\n\n\n
Samuel D. Krawiecz<\/em><\/h6>\n\n\n\n

The Bankruptcy Code (sometimes referred to herein as the Code) disallows preferential payments made to creditors. Preference law is \u201cdesigned to prohibit insolvent debtors, on the eve of filing for bankruptcy, from paying off their debts held by \u2018preferred\u2019 creditors\u2014those creditors whom the soon-to-be bankrupts wish to favor.\u201d The preference rule has five elements. The payment must be (1) a transfer to a creditor, (2) for the benefit of an antecedent debt, (3) while the debtor was insolvent, (4) within ninety days of the filing of the petition (unless the creditor is an insider), and (5) the payment must \u201cenable[] such creditor to receive more than such creditor would receive\u201d in a Chapter 7 liquidation. This Article will analyze how the fifth and last element is applied, particularly with regard to fully secured creditors.<\/p>\n\n\n\n

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VOLUME 5 \u2022 COLUMNS<\/h5>\n\n\n\n

LOSING MOMENTIVE: A ROADMAP TO HIGHER CRAMDOWN INTEREST RATES<\/strong><\/a><\/h3>\n\n\n\n
Evan D. Flaschen, David L. Lawton & Mark E. Dendinger<\/em><\/h6>\n\n\n\n

There has been a lot of press regarding the lengthy Momentive, bench ruling delivered in late 2014. In Momentive, the Bankruptcy Court for the Southern District of New York held that debtors could satisfy the \u201ccramdown\u201d requirements of section 1129(b) of the Bankruptcy Code by distributing to secured creditors replacement notes paying below-market interest rates based on small margins. Several months later, the Ninth Circuit Bankruptcy Appellate Panel (\u201cBAP\u201d) issued an unpublished decision in which it took a more nuanced approach to cramdown interest rate calculation. Instead of identifying a defined range for acceptable margins, as was the case in Momentive, the Ninth Circuit BAP concluded that creditors should shoulder the evidentiary burden to prove the risk factors used to determine the appropriate cramdown rate. In the wake of Momentive, the Ninth Circuit BAP has offered undersecured creditors a roadmap to higher cramdown interest rates under the right circumstances.<\/p>\n\n\n\n

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VOLUME 5 \u2022 COLUMNS<\/h5>\n\n\n\n

FATALLY FOREIGN: EXTRATERRITORIAL RECOVERY OF AVOIDABLE TRANSFERS AND PRINCIPLES OF COMITY IN THE MADOFF SECURITIES SIPA LIQUIDATION PROCEEDING<\/strong><\/a><\/h3>\n\n\n\n
Timothy Graulich, Brian M. Resnick & Kevin J. Coco<\/em><\/h6>\n\n\n\n

Extraterritorial application of the Bankruptcy Code and international comity require courts to examine congressional intent while balancing the competing interests of different jurisdictions. Absent contrary intent within the statute, debtors and trustees in cases under both SIPA and the Bankruptcy Code likely face an uphill battle in overcoming the presumption against extraterritoriality. The recent gravitation toward universalism and respect for foreign laws reinforces that presumption and seeks to establish international deference as the governing baseline.<\/p>\n\n\n\n

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VOLUME 5 \u2022 COLUMNS<\/h5>\n\n\n\n

MAKE-WHOLE CLAIMS AND BANKRUPTCY POLICY<\/strong><\/a><\/h3>\n\n\n\n
Douglas P. Bartner and Robert A. Britton<\/em><\/h6>\n\n\n\n

Although the payment of make-whole amounts clearly may be enforced under applicable state law in many instances, there appears to be tension between a claim in bankruptcy for such a payment and public policies underlying the bankruptcy code, including maximizing recoveries and the fair treatment of all creditors. In this article, we will discuss the state of the law regarding the enforceability in bankruptcy proceedings of make-whole provisions, as well as policy considerations that suggest the beneficiaries of make-wholes may be unfairly enriched at the expense of other creditors.<\/p>\n\n\n\n

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VOLUME 3 \u2022 ISSUE 1 \u2022 PRINT<\/h5>\n\n\n\n

CHAPTER 13 DEBTORS’ HOME LOSS IN THE FORECLOSURE CRISIS<\/a><\/h3>\n\n\n\n
Joshua L. Boehm<\/strong><\/em><\/h6>\n\n\n\n

The foreclosure crisis that began in 2007 and continues as of 2012 has heightened interest in whether chapter 13 bankruptcy helps families in financial distress save their homes and prevent foreclosure. This Note studies whether homeowners who filed chapter 13 bankruptcy were able to keep their homes during the foreclosure crisis. Using a sample of homeowners who filed chapter 13 bankruptcy in 2007 in Broward County, Florida, a hard-hit area in the foreclosure crisis, I find that half of chapter 13 debtors lose their homes within three years of seeking bankruptcy relief. An additional 22% of the sample continued to own their homes but were in foreclosure. I estimate linear regression models on home loss and find that being in foreclosure at the time of filing bankruptcy, the months in arrears at filing, and debtors\u2019 mortgage-to-income ratios and loan-tovalue ratios predict home loss. In the foreclosure crisis, chapter 13 was only modestly effective in saving homes. Drawing on these findings, I offer implications for financial regulatory reform, including Consumer Financial Protection Bureau rulemaking and legislative proposals on mortgage modification. For chapter 13 to become a useful instrument in combating foreclosures, I conclude, policymakers must focus on the need for troubled homeowners to file bankruptcy sooner in the home default process.<\/p>\n\n\n\n

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VOLUME 2 \u2022 ISSUE 1 \u2022 PRINT<\/h5>\n\n\n\n

SOVEREIGN DEBT RESTRUCTURING OPTIONS: AN ANALYTIC COMPARISON<\/a><\/h3>\n\n\n\n
Steven L. Schwarcz<\/strong><\/em><\/h6>\n\n\n\n

The recent financial woes of Greece, Ireland, Portugal, and other nations have reinvigorated the debate over whether to bail out defaulting countries or, instead, restructure their debt. Bailouts are expensive, both for residents of the nation being bailed out and for parties providing the bailout funds. Because the IMF, which is subsidized by most nations (including the United States), is almost always involved in country debt bailouts, we all share the burden. Yet bailouts are virtually inevitable under the existing international framework; defaults are likely to have systemic consequences, whereas an orderly debt restructuring is currently impractical. This Article analyzes and compares debt restructuring alternatives to bailouts. Under a free-market option, sovereign debtors and their creditors attempt to consensually negotiate a debt restructuring, aided by collective-action clauses and by exchange offers with exit consents. Under a statutory option, sovereign debtors and their creditors would be bound by an international convention that sets forth a process to facilitate debt restructuring. The absence of any systematic comparison of these options has made it difficult to facilitate country debt restructurings. This Article attempts to provide that comparison.<\/p>\n\n\n\n

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VOLUME 2 \u2022 ISSUE 1 \u2022 PRINT<\/h5>\n\n\n\n

SOVEREIGN DEBT RESTRUCTURING: PROBLEMS AND PROSPECTS<\/a><\/h3>\n\n\n\n
Mark L. J. Wright<\/strong><\/em><\/h6>\n\n\n\n

This Article reviews the history of sovereign debt restructuring operations with private sector creditors with a view toward diagnosing the factors that lead to inferior outcomes. The Article also attempts to forecast potential problems that may arise in sovereign debt restructuring negotiations in the future and reviews possible modifications of existing institutions. The future potential problems range from the role of credit default swaps in discouraging creditor participation in voluntary exchange offers to the potential for manipulation of aggregation clauses. Other potential issues include the possibility of de facto sovereign default on state contingent debts through statistical manipulation, more widespread use of appeals to the notion of odious or illegitimate debts, and the extent to which recent regulatory changes aimed at restricting litigation against sovereigns in default might reduce the incentive for sovereigns to repay their debts in the future.<\/p>\n\n\n\n

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VOLUME 2 \u2022 COLUMNS<\/h5>\n\n\n\n

RESTRUCTURING SOVEREIGN DEBT UNDER LOCAL LAW: ARE RETROFIT COLLECTIVE ACTION CLAUSES EXPROPRIATORY?<\/strong><\/a><\/h3>\n\n\n\n
Melissa A. Boudreau<\/em><\/h6>\n\n\n\n

The European sovereign debt crisis has generated a number of controversial restructuring proposals that would have seemed appropriate only for emerging markets just a few years ago, but now are among the few options available to sustain the Eurozone. The leading proposal involves legislation that would mandate collective action clauses in untendered bonds governed under local law.  This Note evaluates whether enacting this legislation and utilizing it in a debt restructuring would engender successful investor claims of invalid expropriation against the sovereign in American courts, and concludes that a successful claim of invalid expropriation is unlikely.<\/p>\n","protected":false},"excerpt":{"rendered":"

VOLUME 11 \u2022 COLUMNS ESTIMATING THE NEED FOR ADDITIONAL BANKRUPTCY JUDGES IN LIGHT OF THE COVID-19 PANDEMIC Benjamin Iverson, Jared […]<\/p>\n","protected":false},"author":109,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"footnotes":""},"class_list":["post-5246","page","type-page","status-publish","hentry"],"jetpack_shortlink":"https:\/\/wp.me\/PgKEUK-1mC","jetpack-related-posts":[{"id":4844,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-11\/","url_meta":{"origin":5246,"position":0},"title":"Volume 11 (2020\u20132021)","author":"wgu","date":"January 11, 2021","format":false,"excerpt":"TAXATION \u2022 TECHNOLOGY & INNOVATION RETHINKING TAX FOR THE DIGITAL ECONOMY AFTER COVID-19 Tarc\u00edsio Diniz Magalh\u00e3es and Allison Christians Before COVID-19 arrived, policymakers from around the world were busy working on the makings of a new global tax consensus to reflect structural changes in the world economy as a result\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4429,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-7-issue-2\/","url_meta":{"origin":5246,"position":1},"title":"Volume 7, Issue 2 (2017)","author":"ehansen","date":"November 10, 2017","format":false,"excerpt":"BANKRUPTCY & RESTRUCTURING THREE AGES OF BANKRUPTCY Mark J. Roe During the past century, three decision-making systems have arisen to accomplish a bankruptcy restructuring\u2014judicial administration, a deal among the firm\u2019s dominant players, and a sale of the firm\u2019s operations in their entirety. Each is embedded in the Bankruptcy Code today,\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4332,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-6-issue-2\/","url_meta":{"origin":5246,"position":2},"title":"Volume 6, Issue 2 (2017)","author":"ehansen","date":"January 5, 2017","format":false,"excerpt":"TAXATION EVALUATION BEPS: A RECONSIDERATION OF THE BENEFITS PRINCIPLE AND PROPOSAL FOR UN OVERSIGHT Reuven S. Avi-Yonah & Haiyan Xu The Financial Crisis of 2008 and Great Recession that followed have exacerbated income inequality within and between countries. 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Two accidents of Boeing 737 Max resulted in the deaths of 346 people and revealed the flawed engineering safety control of Boeing.\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4232,"url":"https:\/\/journals.law.harvard.edu\/hblr\/hblr-online-volume-5\/","url_meta":{"origin":5246,"position":5},"title":"Volume 5 (2014-2015)","author":"ehansen","date":"July 31, 2016","format":false,"excerpt":"SECURITIES & FINANCIAL REGULATION NEW MARGIN REQUIREMENTS FOR UNCLEARED SWAPS Craig Stein One of the fundamental changes that the Dodd-Frank Wall Street Reform and Consumer Protection Act (\u201cDodd-Frank Act\u201d) made in the financial markets has been to force most over-the-counter swap transactions onto exchanges and impose regulations on transactions that\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/5246","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/users\/109"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/comments?post=5246"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/5246\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/media?parent=5246"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}