The Fraudulent Conveyance Origins of Chapter 11: An Essay on the Unwritten Law of Corporate Reorganizations

In the first few decades of the Bankruptcy Code, experienced reorganization professionals followed a set of norms that ensured that parties, notwithstanding their conflicting positions, would continue bargaining with each other. Such norms helped keep the parties bargaining with each other, and these norms followed a few familiar patterns. In this Essay, Professor Baird contends that time and tradition have produced unwritten rules with respect to the conduct of a reorganization. These unwritten rules are now an essential feature of corporate reorganization practice.

Baird reconceptualizes the role of the judges, who he argues no longer are neutral arbiters of disputes, and are more like vigilant referees, intervening if one of the players violates these unwritten rules.