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- Introduction
- I. The Essential Role of Organizational Law and the Economic Efficiency of Asset Partitioning
- Introduction
- I. The Corporate Theory Debate on Asset Partitioning in the U.S.
- II. Enhancing the U.S. Debate on Asset Partitioning in Light of the Civil Law Tradition
- III. The Historical Evolution of the Asset Partitioning Doctrine
- A. The Historical Evolution of the Asset Independence Doctrine in the Civil Law Tradition
- 1. The Unity and Indivisibility of the Patrimony Doctrine in the Eighteenth and Nineteenth Centuries
- 2. The Estate as an Entity Doctrine and the Commitment of Assets to a Specific Purpose
- 3. The Substitution of the Indivisibility of the Patrimony Doctrine with the «Numerus Clausus» of Asset Independence Principle
- B. The Historical Evolution of Affirmative Asset Partitioning in the United States
- IV. Affirmative Asset Partitioning and Asset Independence: A Functional Analysis
- A. The “Funds Committed to a Specific Purpose” of the Italian Civil Code v. a Corporate Subsidiary
- 1. Preliminary Considerations
- 2. The Italian “Committed Funds”
- 3. Lower Monitoring Costs
- 4. Matching Capital Structure and Asset Type
- 5. Agency Costs
- 6. Value of Switching Options and Hold-Up Problem
- 7. Tracking of Value
- 8. The Asset Partitioning Effect
- 9. Specialized Creditors' Protection
- 10. Informational Economies
- 11. Other Advantages
- B. Asset Securitization
- 1. Overview of Asset Securitization
- 2. Asset Securitization in Italy
- 3. Asset Securitization in the U.S.
- 4. The Case of Multiple Transactions
- 5. Cost and Benefit Comparison of the Two Systems
- C. Mutual Funds
- 1. Overview of Mutual Funds
- 2. Mutual Series Funds in Italy
- 3. Mutual Series Funds in the U.K. and the U.S.
- 4. The Delaware Series Regulation
- V. Conclusions: Convergences between Civil Law and Common Law Traditions
- A. Broadening Horizons of the Common Law Tradition
- B. Broadening Horizons of the Civil Law Tradition
- 1. The Civil Law «Fiducia»
- 2. The French «Entreprise Individuelle à Responsabilité Limitée»
- II. The Essential Role of Secured Transactions Law and the Economic Efficiency of Later-In-Time Financing
- Introduction
- I. The Natural Tension between First-in-Time and Later-in-Time Financing: A Descriptive Analysis
- A. Incentives to Resort to First-in-Time Secured Financing and Blanket Security Interests
- B. Incentives to Resort to Later-in-Time Secured Financing
- C. Expanding the Descriptive Analysis
- II. Coordinating the Interests of Dominant Creditors and Specialized Creditors: A Comparative Analysis
- A. Priority Rules under Secured Transactions Law: The Common Law Tradition
- 1. The Floating Lien under U.C.C. Article 9
- 2. The PMSI under U.C.C. Article 9
- 3. From Generic to Specific: The Opposite Nature of Floating Lien and PMSI Collaterals
- 4. Other Exceptions to the First-in-Time, First-in-Right Principle under U.C.C. Article 9
- 5. The Floating and Fixed Charge under English Law
- 6. Reservation of Title and the Carve-Out under English Law
- B. Priority Rules between Secured Transactions Law and Ownership: The Civil Law Tradition
- 1. From Roman Law to Nineteenth Century’s European Civil Codes
- 2. The Contemporary Trend: Back to a Blanket, Non-Possessory Security Interest?
- 3. Later-in-Time Creditors and the Principle of Title-Retention
- C. The Convergence Toward Allowing Later Secured Financing
- III. Foundation of Dominant and Specialized Secured Financing: A Normative Analysis
- A. The Proprietary Foundation of Secured Transactions Law
- 1. Reducing Transaction and Monitoring Costs
- 2. The Continuum of Property Law: From Organizational Law to Later Secured Financing
- 3. Later-in-Time Secured Financing as the Equivalent of "Transaction Costs Free" Default Clauses
- B. The Economic Rationale of Later-in-Time Secured Financing
- 1. The Inherent Trade-Off Posed by First-in-Time Secured Financing
- 2. Later-in-Time Secured Financing as a Remedy to the Trade-Off
- III . The Essential Role of Bankruptcy Law and the Economic Efficiency of Postpetition Financing
- Introduction
- I. The Proprietary Foundation of Bankruptcy Law
- A. Bankruptcy Law as an Answer to a Collective Action Problem
- B. Bankruptcy Law as a Strategy of Risk Sharing
- II. The Treatment of General Unsecured Creditors in Bankruptcy
- A. The Equality of Creditors or «Par Condicio Creditorum» Principle
- 1. The Origins of the Equality of Creditors Principle
- 2. The Rationales Justifying the Equality of Creditors Principle
- 3. The Gradual Vanishing of the Equality of Creditors Principle
- B. The Numerous Departures From the Equality of Creditors Principle
- 1. The Preference Action and its Exceptions
- 2. The "Executory Contracts" Rules
- 3. The "Critical Vendor" Doctrine
- 4. The Classification of Unsecured Creditors in Separate Classes
- C. The Convergence Toward a Horizontal Differentiation of Unsecured Creditors
- III. The Interaction between Secured and Unsecured Creditors in Bankruptcy
- A. The Treatment of Secured Creditors in Bankruptcy According to Traditional
- Law-and-Economics Scholarship
- B. Criticisms to the Traditional View
- C. The “Carve-Out” Rule
- IV. The Interaction between Prepetition and Postpetition Secured Creditors
- A. Bankruptcy’s Liquidity-Providing Rules
- 1. The Automatic Stay
- 2. The Administrative Expenses
- 3. The Postpetition Financing “Super Priority”
- 4. The After-Acquired Property Clause
- 5. The Use of Collaterals in Bankruptcy
- B. The Proprietary Foundation of Postpetition Financing
- List of Works Cited