Junk Cities: Insolvency Crises in Overlapping Municipalities
I have a new paper out on municipal insolvency. It's called "Junk Cities: Resolving Insolvency Crises in Overlapping Municipalities," 107 Cal. L. Rev (forthcoming 2019). The paper is co-authored with Aurelia Chaudhury and David Schleicher. The launching point for the paper is the observation that there are frequently overlapping local government jurisdictions--cities, counties, school districts, water districts, park districts, hospital districts, sewer and sanitary districts, forest preserves, etc. These overlapping jurisdictions share a common revenue source--the same set of taxpayers. This means that they have correlated exposure to economic downturns or population declines. It also means that they face a common pool problem in terms of revenue generation, and they frequently lack coordination mechanisms whether formal or informal (such as political "machines").
The correlated economic exposure plus the common pool problem for revenues increases the likelihood of simultaneous financial crises for these overlapping jurisdictions. Chapter 9 bankruptcy, unfortunately lacks the tools to deal with the inter-governmental coordination problem. The techniques used for handling multi-entity debtors in Chapter 11--joint administration, deemed consolidation for voting and distribution purposes, and (in the extreme) full substantive consolidation do not work for municipalities that lack common corporate control and have much clearer separation of assets and liabilities. Chapter 9 does not currently have the capacity for considering a shared revenue source that is not an asset per se. Our paper identifies the nature of the overlapping municipal financial crisis problem, discusses why Chapter 9 is inadequate, and proposes a number of solutions ranging from incremental doctrinal improvements in Chapter 9 to the adoption of a "Big MAC Combo" (or perhaps a "supersize Big MAC") mechanism for coordinating the finances of overlapping municipalities. The abstract is below the break.
What would happen if the City of Chicago, the Chicago Public Schools, and Cook County all became insolvent at the same time? How should policy-makers and courts respond? This Article argues that the pension and budget crises that have left so many local governments deeply in debt have generated another looming problem: the prospect of simultaneous debt crises in overlapping local governments—municipalities, school districts, counties, and other special purpose entities that govern and tax the same territory. These crises will be worse than prior local insolvency crises, as conflicts among overlapping governments will increase the pain suffered by taxpayers, service recipients, and creditors alike. There has been virtually no public discussion of this problem, and as result, much is still unknown about who would bear the costs of simultaneous insolvency crises and how courts and legislatures would respond.
This Article explains how collective action problems among overlapping local governments will make addressing simultaneous insolvency crises difficult, as jurisdictions will hold out against needed restructuring of their obligations in the hopes that another jurisdiction will go first, thereby relieving the strain on the shared tax base, or alternatively, raise revenues in ways that are individually rational but collectively costly. Existing tools for addressing local governmental insolvency, particularly Chapter 9 bankruptcy, cannot currently address coordination problems among overlapping local governments. Accordingly, the Article proposes several changes to Chapter 9 doctrine and to state laws that would counteract the collective action problems that afflict overlapping local governments during insolvency crises and spread the pain of restructuring.