Law and macro finance of corporate debt: Managing the business cycle through bankruptcy

Abstract

This article proposes that, as a matter of policy, the bankruptcy law protections of creditors offering to lend money to large firms in a boom should be weaker than those of creditors offering to lend to such firms in a bust. The policy goals of bankruptcy law under this proposal, inspired by the theoretical framework for Law and Macro Finance, are to curb booms, mitigate the effects of booms gone bust, and protect the productive capacity of the economy in the long term. Bankruptcy courts play a central role in the implementation of this framework. This article discusses examples of legal doctrines the courts could employ for that purpose, such as deepening insolvency and equitable subordination. The courts' role in the countercyclical management of creditor expectations concerning recoveries distinguishes the Law and Macro Finance framework for corporate debt from the more conventional Law and Finance framework. Under the Law and Finance framework, the primary policy objective of bankruptcy courts is to maximise creditor recoveries. Under the Law and Macro Finance framework, that objective is to help manage creditors' expectations concerning recoveries across the credit cycle.