One of my students brought to my attention this recent decision enforcing a prepetition waiver of the automatic stay in a Chapter 11 case. As the decision notes, it’s not uncommon to see court enforce pre-petition waivers of the stay when the waivers were made in the context of earlier aborted Chapter 11 plans. But in this case the waiver was made in exchange for a foreclosure forbearance agreement and not in the context of an early Chapter 11.
There is, of course, an important body of scholarship arguing for permitting contracting around bankruptcy on efficiency grounds. The literature has a real problem in addressing the fairness norms that are central to bankruptcy, but leaving it aside, I think prepetition waivers of the stay have a fundamental doctrinal problem–the stay is a right of the estate, not of the prepetition debtor, so the prepetition debtor has no ability to bargain it away.