Strategic Judgment Proofing

Yeon-Koo Che and Kathryn E. Spier

No 14183, NBER Working Papers from National Bureau of Economic Research, Inc

Abstract: A liquidity-constrained entrepreneur needs to raise capital to finance a business activity that may cause injuries to third parties -- the tort victims. Taking the level of borrowing as fixed, the entrepreneur finances the activity with senior (secured) debt in order to shield assets from the tort victims in bankruptcy. Interestingly, senior debt serves the interests of society more broadly: it creates better incentives for the entrepreneur to take precautions than either junior debt or outside equity. Unfortunately, the entrepreneur will raise a socially excessive amount of senior debt. Giving tort victims priority over senior debtholders in bankruptcy prevents over-leveraging but leads to suboptimal incentives. Lender liability exacerbates the incentive problem even further. A Limited Seniority Rule, where the firm may issue senior debt up to an exogenous limit after which any further borrowing is treated as junior to the tort claim, dominates these alternatives. Shareholder liability, mandatory liability insurance and punitive damages are also discussed.

JEL-codes: D21 D62 G32 G38 K13 K22 (search for similar items in EconPapers)
Date: 2008-07
New Economics Papers: this item is included in nep-law
Note: LE
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Citations: View citations in EconPapers (13)

Published as Yeon-Koo Che & Kathryn E. Spier, 2008. "Strategic judgment proofing," RAND Journal of Economics, RAND Corporation, vol. 39(4), pages 926-948.

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Journal Article: Strategic judgment proofing (2008)
Working Paper: Strategic Judgment Proofing (2006)
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