Legal Commentary

Bankruptcy Reform Instead of Bailouts

By Jonathan H. Adler

Nobody likes bailouts, but what?s the alternative?  Stanford economist John Taylor has an interesting op-ed in today?s WSJ suggesting that proper reforms of the bankruptcy code could reduce the need for the federal government to retain legal authority to bail out ailing financial firms.  Here is the core of his proposal:

During the past year since the administration proposed its financial reforms, bankruptcy experts have been working on a reform to the bankruptcy law designed especially for nonbank financial institutions. Sometimes called Chapter 11F, the goal is to let a failing financial firm go into bankruptcy in a predictable, rules-based way without causing spillovers to the economy and permitting, if possible, people to continue to use its financial services?just as people flew on United Airlines planes, bought Kmart sundries and tried on Hartmax suits when those firms were in bankruptcy.What would a Chapter 11F amendment look like? It would create a special financial bankruptcy court, or at least a group of ?special masters? consisting of judges knowledgeable about financial markets and institutions, which would be responsible for handling the case of a financial firm.

In addition to the normal commencement of bankruptcy petitions by creditors or debtors, an involuntary proceeding could be initiated by a government regulatory agency as prescribed by the new bankruptcy law, and the government would be able to propose a reorganization plan?not simply a liquidation. Defining and defending the circumstances for such an initiation?including demonstrating systemic risk using quantitative measures such as interbank credit exposures?is essential.

Third, Chapter 11F would handle the complexities of repurchase agreements and derivatives by enabling close-out netting of contracts in which offsetting credit exposures are combined into a single net amount, which would reduce likelihood of runs.

Fourth, a wind-down plan, filed in advance by each financial firm with its regulator, would serve as a blueprint for the bankruptcy proceedings.

According to Taylor, such reforms of Chapter 11F are preferable to the proposed ?orderly liquidiation? authority, though this sort of reform would face political obstacles.  I would be curious to see what VC readers think of this approach.

Full post as published by The Volokh Conspiracy on May 03, 2010 (boomark / email).