446
Opinion of the Court
did any court rely on the Case dictum to approve a plan that gave old equity a property right after reorganization. See Ayer, supra, at 1016; Markell, Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations, 44 Stan. L. Rev. 69, 92 (1991). Hence the controversy over how weighty the Case dictum had become, as reflected in the alternative labels for the new value notion: some writers and courts (including this one, see Ahlers, supra, at 203-204, n. 3) have spoken of it as an exception to the absolute priority rule, see, e. g., In re Potter Material Service, Inc., 781 F. 2d 99, 101 (CA7 1986); Miller, Bankruptcy's New Value Exception: No Longer a Necessity, 77 B. U. L. Rev. 975 (1997); Georgakopoulos, New Value, Fresh Start, 3 Stan. J. L. Bus. & Fin. 125 (1997), while others have characterized it as a simple corollary to the rule, see, e. g., In re Bonner Mall Partnership, 2 F. 3d, at 906; Ayer, supra, at 999.
Enactment of the Bankruptcy Code in place of the prior Act might have resolved the status of new value by a provision bearing its name or at least unmistakably couched in its terms, but the Congress chose not to avail itself of that opportunity. In 1973, Congress had considered proposals by the Bankruptcy Commission that included a recommendation to make the absolute priority rule more supple by allowing nonmonetary new value contributions. H. R. Doc. No. 93- 137, pt. I, at 258-259; id., pt. II, at 242, 252. Although Congress took no action on any of the ensuing bills containing language that would have enacted such an expanded new value concept,16 each of them was reintroduced in the next congressional session. See H. R. 31, 94th Cong., 1st Sess.,
16 See H. R. 10792, 93d Cong., 1st Sess., §§ 7-303(4), 7-310(d)(2)(B) (1973); H. R. 16643, 93d Cong., 2d Sess., §§ 7-301(4), 7-308(d)(2)(B) (1974); S. 2565, 93d Cong., 1st Sess., §§ 7-303(4), 7-310(d)(2)(B) (1973); S. 4046, 93d Cong., 2d Sess., §§ 7-301(4), 7-308(d)(2)(B) (1974).
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