Current Print Issue

Vol. 167, Issue 4


Featured Article

Dynamic Legislation

Rebecca M. Kysar
167 U. Pa. L. Rev. 809 (2019)

To overcome congressional gridlock, lawmakers have developed devices that, under certain conditions, provide easier paths to policy change. Procedural mechanisms may eliminate the threat of filibuster and other barriers to legislating. Laws may prompt Congress to act through sunset dates, penalties like sequestration, or other undesirable policy outcomes. Alternatively, the legislative product itself may spontaneously update without further action by Congress, a category I label “dynamic legislation.” For instance, during consideration of recent tax legislation, lawmakers proposed that certain tax cuts be automatically ratcheted down if the bill failed to generate sufficient economic growth and that delayed tax increases not go into effect if revenue hurdles were met.

Of these various tools, I argue that dynamic legislation has the most potential to combat legislative inertia while also meeting the challenges of the democratic process. Specifically, dynamic legislation outperforms the other tools because it leverages the resources of the administrative state without succumbing to excessive deference, it does not impermissibly entrench the current majority, and it is not as susceptible to the pathologies of the political economy and budget processes. Dynamic legislation also provides a mechanism by which Congress can evaluate itself, automatically adjusting laws depending on how well they are performing. Dynamic legislation holds particular promise in areas, like fiscal policy, where these concerns are acute, and where its design is not too costly.

Featured Comment

The Birth Certificate Solution: Ensuring the Interstate Recognition of Same-Sex Parentage

Anna Marie D'Ginto
167 U. Pa. L. Rev. 975 (2019)

In the celebrated decision of Obergefell v. Hodges, the Supreme Court held that same‐sex couples have a constitutional right to marry that cannot be infringed by state law bans on marriage equality. Post‐Obergefell, states around the country are grappling with what the mandate means for parentage and how their family law regimes should be adjusted in light of the increasing diversity in today’s family structures. Variation in whether states presume both partners in a same‐sex relationship to be the legal parents of their child and, if not, whether a second‐parent adoption is available to establish the parentage of the nonbiological parent implicates significant uncertainty for these couples. Entitling the parentage of same‐sex couples as reflected in the birth certificate of the child to interstate recognition on the basis that the birth certificate is a “record” within the ambit of the Full Faith and Credit Clause would provide greater protection of their legal status.

The birth certificate solution is both easily implementable and doctrinally supportable in light of various principles reflected in the Supreme Court’s recent family law jurisprudence. The interests at stake are significant for both the same‐sex couple and their child, and entitling the parentage listed in the birth certificate to full faith and credit recognition would provide greater immediate protection to the legal status of these couples.

Online Exclusives
 Last updated: June 23, 2019


Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower

Stephen B. Burbank
168 U. Pa. L. Rev. Online 17 (2019)

The University of Pennsylvania Law Review Online presents the first installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar,” a series of articles, essays, and commentaries addressing the current state and direction of the judiciary. Contributors include scholars, judges, and practitioners whose extensive experience and diverse perspectives illuminate the relationship between judicial independence and accountability, as well as the forces which shape that relationship. Contributions to the series will be published throughout the summer and fall. The series begins with Professor Stephen B. Burbank's “Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower.” From his experiences as a Supreme Court clerk during Watergate, as a reporter on the judicial committee implementing the Judicial Conduct and Disability Act, and finally as a law professor deeply engaged in the study of judicial power, Professor Burbank suggests several lessons on how judicial accountability is essential to maintaining an independent judiciary.

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.


The Creditors' Bargain Reconstituted: Comments on Barry Adler's The Creditors' Bargain Revisited

Edward J. Janger
167 U. Pa. L. Rev. Online 47 (2019)
Responding to Barry E. Adler, The Creditors' Bargain Revisited

In his book, The Logic and Limits of Bankruptcy Law, Thomas Jackson asserts that bankruptcy law should approximate the bargain creditors would strike at the initiation of the firm (T1) regarding the possibility that the firm might later fail and default on its debts (T2). Jackson reasons that the firm’s creditors would choose a collective remedy that limits the power of individual creditors to force an inefficient liquidation. They would agree to stop the race of diligence.

In his thoughtful and provocative contribution to this symposium, The Creditors’ Bargain Revisited, Barry Adler asks whether, in the current world of finance and bankruptcy, creditors would choose the same collective remedy? His answer is, “No.” As he sees it, creditors would prefer the unfettered right to exercise their negotiated remedies. Barry offers three pieces of evidence: (1) sophisticated creditors frequently say that they would prefer to opt out of collective bankruptcy in favor of individual collection; (2) creditors frequently seek to adopt bankruptcy remote structures such as securitization through special purpose vehicles to avoid the bankruptcy process; and (3) blanket (often second) lien financing is frequently used by undersecured creditors to control and implement an all asset sale. Instead, he posits his preferred, noncollective, approach to insolvency: an express bargain based in creditor autonomy, or as he puts it, “a contractual alternative to bankruptcy.”

My response proceeds in three steps. First, I channel Inigo Montoya from The Princess Bride to suggest that the “Creditors’ Bargain” does not mean what Barry thinks it means. Second, I situate Barry’s contractualism in relation to the alternate “collective” theories of bankruptcy value distribution: the relativism of Baird and Casey; and a more rigorous version of the creditors’ bargain articulated by me and Melissa Jacoby in previous work. Third, I argue for the normative superiority of the collective approach, both for its fidelity to the Creditors’ Bargain heuristic and because of its consistency with a broader set of corporate governance norms that seek to encourage adequate capitalization and risk internalization.