Introduction and Scope

I like bankruptcy law, and I especially like Section 363 of the Bankruptcy Code. Section 363 allows a firm to sell its assets free and clear of claims to them and without a voted-on plan. All that's required is notice and hearing. This blog, which I don't expect anybody but me to read, will chronicle the arguments surrounding the expanded use of 363 sales (particularly comprehensive 363 sales, which I define as a sale of at least 50% of a firm's assets), both my own and others'. The first line of posts will contain my evaluations of others' arguments. From there, I plan to move to my own normative discussion of how 363 sales should be administered by bankruptcy courts. In particular, what standards should judges employ when deciding to approve or reject a motion for sale? Along the way, I might post on particular cases.

I'm going to focus on roughly the last decade of scholarship. After all, major changes, such as the increase in and normalization of creditor control (including DIP-financer control and the recent surge in secured credit) have occurred in the last ten years in this area. Additionally, the last ten years' scholarship includes a good deal of what went on before the last ten years, so I'm sticking to this model. Two exceptions I'll make for books: Skeel's "Debt's Dominion," which was published in 2001, and Jackson's "The Logic and Limits of Bankruptcy Law," which was originally published in 1986. Of course, when it comes to the books, I'll focus on the portions related to Chapter 11 and, in Skeel's case, the history of reorganization generally.