In an earlier article, "The Uneasy Case for the Priority of
Secured Claims in Bankruptcy" 105 Yale Law Journal 857 (1996),
we suggested that the case for a full priority of secured claims
in bankruptcy is an uneasy one. In this paper -- which has been
prepared for a symposium on the priority of secured debt to be published
by the Cornell Law Review -- we address various reactions and objects
to our analysis that have been offered by the contributors to the
symposium. We also further develop some of the main elements of
the analysis in our earlier article -- with respect to both our
analysis of the comparative merits of full and partial priority
and our analysis of how a partial priority regime could be implemented.The
four main arguments that have been raised against the view that
we have put forward -- and to which we respond in this paper --
are as follows: (1) that full priority is required by fundamental
principles of contract and property law (and therefore that a rule
of partial priority would be inconsistent with these principles);
(2) that the economic costs of full priority which we have identified
in our earlier article are likely to be small or even negligible;
(3) that, in any event, the costs associated with a partial priority
rule (especially the costs resulting from a reduction in the availability
of credit) are bound to be higher; and (4) that parties would be
able to circumvent easily any partial priority rule so that the
adoption of such a rule could have little beneficial effect.Our
analysis of these issues, and of the available empirical evidence,
suggests that none of the above four argument should be accepted.
The analysis confirms our earlier conclusion that the case for a
full priority of secured claims in bankruptcy is an uneasy one.