Law Commons^™

UF Law Faculty Publications

Series

2002

by saddling them with high debt levels. The higher rate of refiling that resulted was nevertheless efficient because refiling costs were low. In this essay we respond that the Ayotte-Skeel model is based on the assumption of a selection effect for which there is neither a shred of empirical evidence nor even a variable proposed for measurement. We demonstrate that it is mathematically impossible for the cost savings from Delaware's shorter bankruptcies to offset the cost of so many second bankruptcies. We also note that the Ayotte-Skeel model leads to several predictions in conflict with the empirical evidence. We argue that refailure is costly and propose an empirical approach to quantify those costs. We praise Ayotte and Skeel's discovery that the EBITDA of firms emerging from Delaware bankruptcy was not significantly different from the EBITDA of firms emerging from bankruptcy in other courts during the period of ascendency. We agree that their findings suggest leverage played a greater role in the failure of the Delaware companies than we had previously thought. Lastly