Thursday, October 6, 2011

Bankruptcy's Per Se Rule

I wonder if there are any thoughts on this proposition:

"Bankruptcy states a per se rule that reflects the following proposition: the number of instances in which there is broader economic benefit to be derived from competition policy considerations, and the magnitude of those benefits, taken together are insufficient to warrant the harm to the constituents of the bankruptcy estate from the loss of the assets."

Here's the idea: bankruptcy does not concern itself with economic efficiency, preferring instead the preservation of value to the constituents of the estate. That obviously reflects an implicit policy decision that the broad efficiency benefits from competition policy are insufficient to overcome the localized value preservation that bankruptcy champions.

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