Mark J. Roe, Bankruptcy and Debt: A New Model for Corporate Reorganization, 83 Colum. L. Rev. 527 (1983).
Abstract: Two of the core determinations made in a reorganization proceeding under chapter 11 of the Bankruptcy Code' are simply stated: Who gets how much? What will the new capital structure be? To resolve these simply stated questions of valuation and recapitalization, bankruptcy courts loosely oversee a lengthy bargaining process that is widely thought to be cumbersome, costly, and complex. The strain of extended financial stress results in lost sales when customers seek a more secure supply source, in consumption of valuable management time spent resolving financial difficulties, and in forgone opportunities to obtain new projects. Additional costs are borne by the employees, customers, and suppliers of the bankrupt company, as well as the comnunities in which it operates. Furthermore, while contraction of the bankrupt firm is usually in order, parts of the firm may sometimes be liquidated even though liquidation value is less than operational value. Finally, the firm often emerges from reorganization with an unnecessarily complex capital structure. Such a complex capital structure can cause the reorganized firm to adopt poor operational strategies, prevent it from raising new capital, and pose a barrier to a healthy merger.