UC Hastings Law Professor Jared A. Ellias will present his new article “Bankruptcy Hardball,” which is forthcoming in the California Law Review in 2020, at this year’s prestigious Yale/Stanford/Harvard Junior Faculty Forum. The Article is co-authored with Robert Stark of Brown Rudnick LLP, a leading bankruptcy practitioner based in New York.
The Article coined the term “bankruptcy hardball” to describe the contemporary era of debtor-creditor relations, which Ellias and Stark argue is now characterized by a level of chaos and rent-seeking unchecked by norms that formerly restrained managerial opportunism. Ellias and Stark attribute the shift, in part, to a series of Delaware court decisions that signaled an end of the 200+ year judicial tradition of using equitable doctrines to protect creditors from opportunistic behavior. The trouble with this change in law is that it was predicated on the faulty assumption that creditors are fully capable of protecting their bargain during periods of distress with contracts and bankruptcy law.
In the Article, Ellias and Stark argue through a series of case studies how the creditor’s bargain is, contrary to that undergirding assumption, often an easy target for opportunistic repudiation and, in turn, dashed expectations once distress sets in.
The Article was posted on the Social Science Research Network for public distribution in November of 2018 and quickly became the most downloaded bankruptcy and reorganization practice Article in SSRN’s history and the subject of widespread press commentary and discussion among practitioners and scholars.
The Yale/Stanford/Harvard Junior Faculty Forum is meant to encourage the work of law professors with less than seven years’ worth of teaching experience.
Ellias also presented at the conference in 2017.
This year’s conference will be held June 5-6 at Yale Law School.