Justice And Bounded Moral Rationality In Bankruptcy
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Authors
Lee, Jooho
Issue Date
2017-03
Volume
50
Issue
2
Type
Journal Article
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Abstract
INTRODUCTION|What is corporate reorganization about? How ought we treat firms under financial distress? Should we even allow them to reorganize at all? These questions have motivated an ongoing debate about the purpose of Chapter 11 of the Bankruptcy Code- and about bankruptcy law in general- that one commentator has dubbed the "Great Normative Debate in bankruptcy theory. The Great Normative Debate is often seen as a debate between two major camps of scholars who hold "radically different views of the underlying normative bases of the role of bankruptcy law and the aims of legal scholarship." On one side are the "proceduralists" who deny the preservation of firms as an aim of bankruptcy, pay special attention to ex-ante effects of policymaking, and place limits on judicial discretion. On the other side are "traditionalists" who desire to see firms preserved for the sake of non-creditor stakeholders, pay special attention to the ex-post determination of rights and needs of those who are involved in bankruptcy proceedings, and advocate for broader judicial discretion in satisfying the aims of bankruptcy...
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Publisher
Creighton University School of Law