The Debtor Is Dead, Long Live the Debtor*

Bankruptcy reorganization in the United States has traditionally offered a bankrupt debtor the opportunity to seek a “fresh start” from its creditors and reorder its affairs to move forward without the pressure of outstanding debts.1 Though this may be just one of many aims promoted by the current bankruptcy framework,2 the architecture of the present-day Bankruptcy Code (the Code)—implemented by the Bankruptcy Reform Act of 19783—is described by one commentator as a system whereby “an inadequate pie” is divided among creditors to share in the remains of a bankrupt enterprise.4 Under this framework, debtors may use the Code to address a number of economic issues facing a struggling corporation, all in an effort to preserve the corporate enterprise under the debtor’s same management.5 There are a number of recent examples demonstrating that debtors control their fate as they reach the precipice of bankruptcy,6 even though we might intuitively expect debtors to seek legal protection only after creditors come in search of repayment. Indeed, the legislative history surrounding the Bankruptcy Reform Act emphatically rejected any proposition that creditors dominated the bankruptcy reorganization process: The notion of creditor control, while still theoretically sound, has failed in