Volume 166, Issue 7 
December 2018
Articles

Foreword: Bankruptcy's New and Old Frontiers

William W. Bratton & David A. Skeel, Jr.

This Symposium marks the fortieth anniversary of the enactment of the 1978 Bankruptcy Code (the “1978 Code” or the “Code”) with an extended look at seismic changes that currently are reshaping Chapter 11 reorganization. Today’s typical Chapter 11 case looks radically different than did the typical case in the Code’s early years. In those days, Chapter 11 afforded debtors a cozy haven. Most everything that mattered occurred within the context of the formal proceeding, where the debtor enjoyed agenda control, a leisurely timetable, and judicial solicitude. The safe haven steadily disappeared over time, displaced by a range of countervailing forces and a cooperative bankruptcy bench. Lenders, especially debtor‐in‐possession (DIP) financers, gradually began to shape the trajectory of many proceedings. They today determine the course of most of the cases. More recently, additional players such as hedge funds and equity funds have also entered the scene, altering the bargaining dynamic. New financial instruments complicate debtors’ capital structures and creditor incentives. Even the sites and modes of decisionmaking have shifted, as today’s key decisions are negotiated and embedded in contracts concluded even before the debtor files for bankruptcy. The changes, which continue to accumulate, are fundamental.

Congress has given a gentle assist to a few of these changes. Sometimes this has followed from direct intervention, as when Congress amended the Code to diminish the debtor’s agenda control of judicial reorganization proceedings. At other times the effect is indirect, as when Congress encouraged the use of derivatives and other new financial instruments by largely exempting them from key bankruptcy provisions such as the automatic stay that requires other creditors to halt any collection efforts. Whether direct or indirect, most of the legislative interventions have been of minor importance and the statutory framework is largely identical to that enacted in 1978. The changes have been driven by innovations in reorganization practice and judicial interpretation. It is a dynamic situation. Some of the most important and controversial of these new developments, such as the use of restructuring support agreements to lock up votes for a potential reorganization, will likely have seen further evolution by the time this Foreword appears in print.

This Foreword provides context for the Symposium’s academic contributions by recounting the historical developments that have brought us where we are. After chronicling the origins, New Deal redirection, and recent evolution of corporate reorganization, we describe some of the remarkable and often counterintuitive insights the articles in this Symposium offer for the current moment. We conclude by venturing a few thoughts about the future. As we shall see, the Nietzschean vision of history as eternal recurrence has surprising explanatory power in the bankruptcy context.


The New Bond Workouts

William W. Bratton & Adam J. Levitin

Bond workouts are a famously dysfunctional method of debt restructuring. The process is so ridden with opportunistic and coercive behavior by both bondholders and bond issuers as to make success intrinsically unlikely. Yet since 2008 bond workouts have quietly started to work. A segment of the restructuring market has shifted from bankruptcy court to out‐of‐court workouts by way of exchange offers made only to large institutional investors. The new workouts feature a battery of strong‐arm tactics by bond issuers, and aggrieved bondholders have complained in court. There resulted a new, broad reading of the primary law governing workouts, section 316(b) of the Trust Indenture Act of 1939 (TIA), which prohibits majority‐vote amendments of bond payment terms and forces bond issuers seeking to restructure to resort to exchange offers.

This Article exploits the bond market’s reaction to the shift in law to reassess a longstanding debate in corporate finance regarding the desirability of TIA section 316(b). Section 316(b) has attracted intense criticism, with calls for its amendment or repeal because of its untoward effects on the workout process and tendency to push restructuring into the costly bankruptcy process. Yet section 316(b) has also been staunchly defended on the ground that mom‐and‐pop bondholders need protection from sharp‐elbowed issuer tactics.

We draw on a pair of original, hand‐collected data sets to show that many of the empirical assumptions made in the debate no longer hold true. We show that markets have learned to live with section 316(b)’s limitations, denuding the case for repeal of any urgency. Workouts generally succeed, so that there is no serious transaction cost problem stemming from the TIA; when a company goes straight into bankruptcy there tend to be independent motivations. We also show that workout by majority amendment would not systematically disadvantage bondholders. Indeed, the recent turn to secured creditor control of bankruptcy proceedings makes direct amendment all the more attractive to unsecured bondholders.

Based on this empirical background, we cautiously argue for the repeal of section 316(b). Section 316(b) no longer does much work, even as it prevents bondholders and bond issuers from realizing their preferences regarding modes of restructuring and voting rules. We do not know what contracting equilibrium would obtain following repeal, but think that the matter is best left to the market. Still, we recognize that markets are imperfect and that a free‐contracting regime may result in abuses. Accordingly, we argue that repeal of section 316(b) should be accompanied by the resuscitation of the long‐forgotten doctrine of intercreditor good faith duties, which presents a more fact‐sensitive and targeted tool for policing overreaching in bond workouts than the broad reading of section 316(b).


The Bankruptcy Partition

Douglas G. Baird, Anthony J. Casey & Randal C. Picker

Many current bankruptcy debates—from critical vendor orders to the Supreme Court’s decision last year in Czyzewski v. Jevic Holding Corporation—begin with bankruptcy’s distributional rules and questions about how much discretion a judge should have in applying them. It is a mistake, however, to focus on distributional questions without first identifying the bankruptcy partition and ensuring it is properly policed. What appear to be distributional disputes are more often debates about the demarcation of the bankruptcy partition and the best way to police it.

Once the dynamics of establishing and policing the bankruptcy partition are taken into account, there is little room for departures from bankruptcy’s distributional rules. There might be a few rare cases in which maximizing the value of the estate requires it, but these inhabit an exceedingly narrow domain so small and so hard to navigate that they are sensibly handled with a per se rule that prohibits them.


Corporate Bankruptcy Hybridity

Melissa B. Jacoby

Spend a day in a busy bankruptcy court and your research agenda could be set for life. Bankruptcy is crisis management for individuals, business entities, and even governments. The entities that file for bankruptcy come in all shapes and sizes, as do their troubles. In addition to basic capital structure problems, bankruptcy dockets and courtrooms contain allegations of sexual harassment, race discrimination, systemic financial risk, First Amendment issues, toxic and defective products (medical devices, airplanes, and automobiles), global warming litigation, and pyramid schemes. This catastrophist’s dream has the potential to provoke engagement from scholars spanning the law school curriculum.

That breadth of engagement, however, is missing. In a public lecture, commercial law scholar and teacher Jay Lawrence Westbrook lamented the lack of “public interest” concerns in corporate bankruptcy scholarship. That term signals something more than the aggregation of individual rights‐based interests and arguments, to encompass the system’s broader effects—matters that cannot simply be waived by creditors when they settle their own claims. In addition, the scholarship insufficiently attends to claimants whose rights against a bankrupt company arise through pathways other than the fine print of a contract.

In short, the field of corporate bankruptcy has been redistricted to wealth maximization, voluntary lenders, and investors. Academic careers have flourished characterizing Chapter 11 as a mere corporate control transaction among investors, shuffling pieces of the company’s capital structure. Whether due to this framing, the lack of a popular alternative, or both, the redistricters tend to ignore scholarly contributions that construe the field more broadly.

This Article is an invitation to explore an alternative model: corporate bankruptcy as a public–private partnership. In this model, allocating responsibilities to private parties can improve regulatory functioning, but parties cannot redefine system goals purely for their own benefit. The application of this framework is supported by an institutional analysis of the bankruptcy system, drawing on privatization and administrative law scholarship that has received too little attention in bankruptcy debates. Scholars of the regulatory state understand that efficiency is not the exclusive objective: “the public law perspective asks not whether privatization is efficient, but whether it erodes the public law norms that these constitutional and statutory limits are designed to protect.” Private contributions to a system must be solicited and managed in ways that improve, not undermine, public regulatory objectives.

In addition to enlivening academic debates, the public–private partnership model sheds new light on real‐world problems. And problems abound. The American Bankruptcy Institute Commission on Chapter 11 recently released a report cataloging the ways in which Chapter 11 no longer functions in accordance with its original legislative mandate. The public–private partnership model not only helps diagnose shortcomings in Chapter 11 as it operates on the ground, but expands the range of options for addressing them.


Taking Control Rights Seriously

Robert K. Rasmussen

The Bankruptcy Code deals first and foremost with the cash flow rights of the debtor’s various investors. The immediate cause of most corporate bankruptcy filings is a company’s pending inability to pay off its obligations that are becoming due. The firm has made promises to pay various parties, and it does not have the financial wherewithal to live up to those obligations. It lacks the liquidity necessary to continue to service its debt and has either defaulted on its obligations or faces imminent default. In short, there is a mismatch between the company’s capital structure and its future revenues.

Restructuring the business’s balance sheet under Chapter 11 is designed to address this mismatch between obligations and available resources. The goal is to create a capital structure that better reflects the future revenues of the firm. The heart of Chapter 11 is the absolute priority rule. It sets forth the conditions that must be met for an investor to see her cash flow rights changed over her objection. Those holding secured debt can see their principal reduced, the interest rates on the debt trimmed, and the term of the loan extended. Unsecured debt can be reduced, paid off at pennies to the dollar, or converted to equity. Equity can be drastically diluted or even wiped out in full. Specifying the extent to which the various parties’ rights can be adjusted over their objection structures the bargaining process that leads to a plan of reorganization.

Over the decades, much ink has been spilled over the extent to which there are deviations from absolute priority in practice and the extent to which other mechanisms could be implemented that would vindicate the rule. Recently, there has been serious questioning of the wisdom of the Code’s strict adherence to absolute priority, with the suggestion that we return to the world of relative priority. Regardless of which flavor of priority one prefers, in every reorganization case the central issue that is the focus of reorganization law is how cash flow rights are adjusted—what claims will the prebankruptcy investors have against the restructured company?

The Code deals with cash flow rights in other ways besides adjusting investors’ rights to cash flow at the end of the proceeding via a plan of reorganization. For example, all rights to receive payments based on prepetition debts are stayed by the filing of a bankruptcy petition. Some transfers of money made on the eve of bankruptcy can be undone. Transactions of the last few years can be scrutinized to see whether the debtor received an adequate return for property that it has transferred to others. The debtor can decide whether to continue with transactions in progress. All of these situations adjust outside parties’ legal rights to receive money from the debtor.

Bankruptcy law, in contrast, has little to say about control rights over the running of the business. It by and large allows the existing management to remain in charge of the debtor. State law vests the ultimate authority over a company’s operations with the firm’s board of directors, and bankruptcy law leaves that structure in place. Boards, in turn, delegate the running of the company to the CEO and the executive team, and the Code takes this allocation of authority as the baseline for operating the debtor, both during the case and afterwards.


Bankruptcy's Uneasy Shift to a Contract Paradigm

David A. Skeel, Jr. & George Triantis

A generation ago, the Creditors’ Bargain theory provided the first comprehensive normative theory of bankruptcy. Not least of its innovations was the fact that it put bankruptcy theory on a contractual footing for the first time. Earlier commentators had recognized that bankruptcy law can prevent a “grab race” or “race to the courthouse” by creditors of a financially troubled debtor as they attempt to collect what they are owed, and that bankruptcy can provide a less chaotic and more even‐handed distribution of the debtor’s assets than might otherwise be the case. The articles that introduced the Creditors’ Bargain were the first to suggest that bankruptcy’s solution to these concerns was resolutely contractual in nature.

According to the Creditors’ Bargain theory, bankruptcy can be seen as the product of an implicit—or hypothetical—bargain among the creditors of a debtor. In practice, the argument went, creditors are too dispersed to effectively contract with one another over the best response to a debtor’s financial distress. But if they were able to contract, they would agree to provisions that put a halt to the race to the courthouse and provide for a collective solution to financial distress. Although a few creditors might fare better in a grab race, creditors as a whole would suffer because the creditors’ collection efforts could dismember an otherwise viable business. By preempting the race, bankruptcy law supplies the terms of a contract that the parties would agree to if they could contract directly.

In addition to justifying the collective proceeding, the hypothetical contract had important implications for every other feature of bankruptcy as well. As Baird and Jackson envisioned it, the hypothetical contract would pursue a “sole owner” standard—that is, the approach that a sole owner of all of the debtor’s assets would favor—and thus would seek to maximize the value of the debtor’s assets without regard to the effect of the resolution decision on any particular constituency. The hypothetical contract would protect the parties’ nonbankruptcy entitlements—especially property rights—except to the extent necessary to achieve a collective solution to financial distress that would preserve the debtor’s value as a going concern. If bankruptcy were to alter rights otherwise, the reasoning went, the debtor and its creditors would engage in costly efforts to maneuver disputes toward their preferred fora.

As the hypothetical bargain terminology suggests, the Creditors’ Bargain theory focused on implicit rather than actual contracting and did not conceive of bankruptcy as a set of default rules that the parties would be free to contract around. This was because the theory was addressing a world of creditors so dispersed that they were unable to contract. The most dramatic development in the decades since the model was devised has been the increasing use of actual contracts to shape the bankruptcy process. Some of the increase in contracting is due to the rise in relative prominence of secured creditors since the inception of the Creditors’ Bargain theory. Unsecured creditors are less likely to be the key constituency in current cases than they were a generation ago, and the traditional collective action problems are correspondingly less relevant in many cases.9 Another important change has been the rise of sophisticated activists who purchase and aggregate bankruptcy claims or provide new financing with a view toward influencing the course of the bankruptcy. The body of creditors is far more dynamic than a generation ago and tilted toward creditors that can and do contract.


Valuation Disputes in Corporate Bankruptcy

Kenneth Ayotte & Edward R. Morrison

Prior scholarship points to valuation disputes and valuation error as key drivers of Chapter 11 outcomes. Avoiding valuation disputes and errors is also the underlying driver of most proposed reforms, from Baird’s auctions to Bebchuk’s options. In this paper, we undertake a detailed examination of bankruptcy court opinions involving valuation disputes. Our paper has two goals. The first is to understand how parties and their expert witnesses justify their opposing views to judges, and how judges decide between them. The second is to provide practical guidance to judges in resolving valuation disputes. We document surprisingly pervasive (and often self‐serving) errors in expert testimony. This is particularly true when valuation experts apply the discounted cash flow (DCF) method. With respect to key elements of that method, such as the discount rate, we observe stark inconsistency between expert testimony and finance theory and evidence. We propose simple strategies based in finance theory that judges can employ (such as avoiding the use of company‐specific risk premia in discount rates) to reduce the scope for valuation disagreements in Chapter 11. We also recommend that judges rely on the peer‐reviewed finance and economics literature to assess the scientific reliability of discount rates.


The Creditors' Bargain Revisited

Barry E. Adler

Thirty‐six years ago, Tom Jackson suggested that corporate bankruptcy law can best be explained and defended as the terms of an implicit bargain among creditors. This assertion is founded on a belief that creditors, as a group, prefer bankruptcy’s collective process to a grab race among themselves, particularly when such a race may cause the demise of a viable going concern.

Since Jackson’s article, scholars have discussed and debated whether creditors need to rely on bankruptcy’s bargain for collective action. Some have contended that creditors could in fact contractually arrange for a collective process and that the law should permit them to do so. Others have argued that the impediments to such a contractual arrangement would be too daunting. With rare exception, though, participants in this dialogue assumed that creditors desire some form of collective process, whether provided by statute or contract. That is, while implementation was debated, the collectivization premise went mostly unchallenged.

The recent transformation of the bankruptcy process from a forum of reorganization to, largely, an auction block further supports the collectivization premise. A collective process may not seem attractive when it features the contests inherent in reorganization, described colorfully by Sol Stein as a feast for lawyers. But the bankruptcy process may appear in a more favorable light when it is used simply to conduct an orderly sale of the debtor’s assets, including a sale as a going concern if that configuration of assets garners the highest bid.

All may seem well, then, in the world of bankruptcy, where the apparent confluence of theory and practice led Douglas Baird and Robert Rasmussen to declare the end of bankruptcy, by which they meant that bankruptcy has evolved to its ideal. But there is a fly in the ointment.

At a series of recent conferences attended by academics and practitioners, the latter have suggested, sometimes expressly, that if freed from legal constraint, creditors they know would not only contract out of bankruptcy but out of any collective proceeding. That is, at least some practicing lawyers—presumably not immersed in Jacksonian orthodoxy—seem to believe that their clients would like to engage in a grab race after all, consequences be damned.

Do these lawyers, who represent sophisticated lenders, simply mean that their clients favor a competition in which they would occupy a privileged position? Perhaps. But this seems unlikely because in a functioning capital market, creditors are mere stakeholders who are forced by the market to pay for any privilege in the form of lower interest rates. Sophisticated lenders, along with their lawyers, well understand this.

But perhaps a better explanation for why lenders might forgo collectivization exists: debtors would insist on interest rates possible only if the debtor obtained funds within a capital structure designed to throw the firm to the creditor wolves in the event of an uncured default. This conjecture is not new. I first raised the idea years ago in dissent to the collectivist hegemony. What is new, and the focus of this Article, is the extent to which the conjecture is supported by recent developments in bankruptcy practice and creditor activism.


A Retrospective Look at Bankruptcy's New Frontiers

Thomas H. Jackson

It is something between awkward and an honor to be asked, as the creators of this Symposium did, to be the keynote speaker at a gathering called “Bankruptcy’s New Frontiers.” The Symposium, by its very title, is—wholly appropriately—about where bankruptcy is going, and investigating, as well as celebrating, the enormous creativity, hard work, and genius of those who are at the cutting edge of helping bankruptcy law evolve to its “new frontiers.” In that, I am at best a minor player from the perspective of 2017, notwithstanding my recent work in a side area dealing with bankruptcy and SIFIs—systemically important financial institutions—and despite a couple of energizing (for me, at least) pieces with David Skeel over the past half‐dozen years. That doesn’t account for the honor.

So, I am resigned (at least in part) to the idea—and hence the awkwardness—that my invitation here, as the keynote speaker, has less to do about my role in the future than the past—although one of my guiding beliefs as an academic has always been that all scholarship is never definitive, but is about moving the ball forward so that others, with new and different insights, can pick the ball up and run with exciting, pathbreaking scholarship. The best of the past is a part of the future. In that, I have significant pride in thinking my work moved the ball forward, inviting a host of new, and creative, people to become involved. I am “keynote” in the sense of “let’s start with how we got to where we are, in a world in which we could reasonably talk about ‘Bankruptcy’s New Frontiers’ and gather such an incredible group of academics, practitioners, and judges.”

And, in doing this, it is, I think, important to remember that not only normative frameworks change with time but, equally, so does the world to which the frameworks are responding. The “creditors’ bargain” may have been the first comprehensive normative framework for thinking about bankruptcy law, as this Symposium postulates, but it was a product not only of the emerging scholastic work at that time, but also of the actual world—of firms, capital structures, and players—that existed at that time. In a recent piece that I resonate with (cogently entitled Three Ages of Bankruptcy), Mark Roe suggested that

we see core provisions emerging in practice, dominating for a time, and then fading in importance. Each decision‐making method has had its heyday. Each method’s rise and fall usually fit with underlying market conditions and basic bankruptcy goals, sometimes mapped to political ideology currents, and often reflected the influence of powerful groups, such as well‐organized creditors.

That is, I believe, true not just of practice but of normative frameworks that respond to the world as we see it. It is an appropriate time to take stock of changes in organizations and practices, as well as theory and new analytical tools, to see to what extent what was novel, perhaps revolutionary, and perhaps normatively persuasive, thirty to forty years ago, needs ongoing adjustment and reform—exactly the work that those gathered here tonight have been so engaged in over the past twenty years.

But as this Symposium, so appropriately, does exactly that, it is at least interesting, and perhaps worthwhile, to travel back forty years in time when, I dare say, there wouldn’t have been such a star‐studded conference about “Bankruptcy’s New Frontiers.”


Volume 166, Issue 6 
May 2018
Articles

Our Principled Constitution

Mitchell N. Berman

Suppose that we disagree about a matter of constitutional law. Say that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we disagree about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. Theorists should try to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true; they should aim to provide what I will call a “constitutive theory” of constitutional law. It is obvious that we do not all share a constitutive theory. It is less obvious, and strikingly underappreciated, that we have precious few candidates to choose from. Few of our many prescriptive theories regarding how judges should exercise the power of judicial review have straightforward constitutive implications.

This Article presents an original constitutive theory of American constitutional law (and of law generally), founded on the familiar distinction between two types of constitutional norms: “principles” and “rules.” It argues: first, that rules are determined by the interaction of principles, in a manner that can be loosely modeled as force addition; and second, that the principles are “grounded” in mental states, speech‐acts, and behaviors of persons who make up the constitutional community, much as rules of fashion or of billiards are grounded in behaviors of persons who make up their normative communities. In short: social facts determine constitutional principles, and constitutional principles determine constitutional rules. I call the account “principled positivism.” It is positivist, pluralist, and dynamic.

Principled positivism maintains that we can come to know our constitutional rules by discerning the contents, contours, and weights of our constitutional principles. Accordingly, the Article offers a preliminary and partial inventory of our constitutional principles—principles concerning the legal significance of what the enacted text says and what its authors intended; principles about the force of judicial precedents and of extra‐judicial practices; principles of popular sovereignty, the distribution of governing power, and the demands of liberty and equality. It then puts the principles to work, illustrating how they operate in diverse constitutional controversies, from same‐sex marriage to the scope of Congress’s commerce power.


Taxing the Gig Economy

Kathleen DeLaney Thomas

Due to advances in technology like mobile applications and online platforms, millions of American workers now earn income through “gig” work, which allows them the flexibility to set their own hours and choose which jobs to take. To the surprise of many gig workers, the tax law considers them to be “business owners,” which subjects them to onerous recordkeeping and filing requirements, along with the obligation to pay quarterly estimated taxes. This Article proposes two reforms that would drastically reduce tax compliance burdens for this new generation of small business owners, while simultaneously enhancing the government’s ability to collect tax revenue.

First, Congress should create a “non‐employee withholding” regime that would allow online platform companies such as Uber to withhold taxes for their workers without being classified as employers. Second, this Article proposes a “standard business deduction” for gig workers, which would eliminate the need to track and report business expenses. Although this Article focuses on the gig economy as an illustration of how the workplace has evolved in recent years, the proposals could apply more broadly to taxation of small, individually run businesses. In an era when the use of cash is on the decline and information can be shared rapidly at little cost, it is time for policymakers to institute a more modern tax enforcement regime for small businesses.


Settling the Staggered Board Debate

Yakov Amihud, Markus Schmid & Steven Davidoff Solomon

We address the heated debate over the staggered board. One theory claims that a staggered board facilitates entrenchment of inefficient management and thus harms corporate value. Consequently, some institutional investors and shareholder‐rights advocates have argued for the elimination of the staggered board. The opposite theory is that staggered boards are value‐enhancing since they enable the board to focus on long‐term goals. Both theories are supported by prior and conflicting studies and theoretical law review articles. We show that neither theory has empirical support and, on average, a staggered board has no significant effect on firm value. Prior studies did not include important explanatory variables in their analysis or account for the changing nature of the firm over time. When we control for variables affecting both value and the incidence of a staggered board in a sample of up to 2961 firms from 1990 to 2013 we find the effect of a staggered board on firm value becomes statistically insignificant. Notably, we find that the adoption of a staggered board, its retention, and its removal are not random and exogenous but rather endogenous, being related to firm characteristics and performance. The effect of a staggered board is idiosyncratic; for some firms it increases value, while for other firms it is value‐destroying. Our results suggest caution about legal solutions that advocate wholesale adoption or repeal of the staggered board and instead point to an individualized firm approach.


Comments

Completely Exhausted: Evaluating the Impact of Woodford v. Ngo on Prisoner Litigation in Federal Courts

Elana M. Stern

On June 22, 2006, the Supreme Court decided an unglamorous administrative exhaustion case involving the ability of prisoners to bring civil lawsuits in federal court. The case, Woodford v. Ngo, split the Court 6‐3 with Justice Alito writing for the majority. The decision itself hinges on a close reading of the term “exhaustion” and its requirements under administrative law and the 1996 Prison Litigation Reform Act (PLRA). The Woodford majority held that, in light of the PLRA, a prisoner must “properly exhaust[]” administrative remedies before filing a claim in federal court; failure to follow this procedural requirement results in dismissal of an improperly exhausted claim. “Proper exhaustion,” as defined by the Court, requires prisoners not only to go through administrative proceedings and seek the remedies “that meet federal standards,” but also to pursue “all ‘available’ [administrative] remedies” to their procedural conclusion.

Thus, on its face, Woodford appears to make filing claims in federal court even more difficult for prisoners by strictly interpreting the relevant statutory language. However, the goal of this Comment is to demonstrate that Woodford has had no such effect. Ten years after the Supreme Court’s decision, prisoners’ filings of unexhausted claims in federal court have actually increased. Prisoner litigants likely do not have adequate knowledge of the procedural prerequisites to filing a civil claim in federal court. To resolve the ongoing disconnect between the law relevant to prisoner filings and filings in reality, this Comment proposes bridging the existing knowledge gap that may be partially responsible for improperly or unexhausted claims brought by prisoners in federal court. Including an informational cover sheet on prisoner pro se civil complaint forms that gives potential claimants an overview of the exhaustion requirement may at least give prisoners pause before writing out their claims and filing a suit that would be dismissed on procedural grounds.

Without making the relevant law salient to those it directly affects, Woodford’s deterrent impact on improperly exhausted prisoner civil claims may remain minimal. As a result, prisoners will likely continue to file improperly exhausted civil claims in federal court, which require courts’ time and resources to dismiss, even via order (in lieu of a full opinion). For prisoners, an ongoing knowledge gap in this context will mean running up against the PLRA’s three strikes rule, additional filing fees, and perhaps due to procedural failings, losing the ability to bring a substantively meritorious claim.


The Illusory Coverage Doctrine: A Critical Review

Ian Weiss

How should a court handle a liability insurance policy sold to a tavern that purports to cover general commercial liability, yet contains an exclusion for liability “arising out of or in connection with the manufacturing, selling, distributing, serving or furnishing of any alcoholic beverages”? How about a liability insurance policy sold to DISH Network that contains an exclusion for liability “arising out of the ownership, operation or use of any satellite”? Or how about one that purports to cover a business for its liability arising out of “discrimination,” yet contains exclusions for discrimination that either violates a statute, is done knowingly or intentionally, is directed towards prospective, current, or wrongfully terminated employees, or is “committed on the basis of race, creed, color, sex, age or national origin”?

In all three of those cases, the policyholders argued that it would be unfair for the court to enforce the exclusions in their policies as they were written. Those exclusions, the policyholders argued, wiped out so much of the coverage that otherwise would have existed under the policies’ insuring clauses that the coverage would be practically worthless. Thus, the courts were asked to analyze those policies under the doctrine known as the Illusory Coverage Doctrine (ICD). The ICD is implicated when an insurance policy is written in such a way that could give the policyholder the “illusion” that the policy covers risks that are not actually covered. The ICD is somewhat obscure, and no precise formulation of the doctrine has yet achieved predominance among American jurisdictions.

This Comment will discuss the status of the ICD in American insurance law, especially liability insurance law, and will also offer my own views as to how the doctrine can be best understood and refined.


Volume 166, Issue 5 
April 2018
Articles

Law, Virtual Reality, and Augmented Reality

Mark A. Lemley & Eugene Volokh

Virtual Reality (VR) and Augmented Reality (AR) are going to be big—not just for gaming but for work, for social life, and for evaluating and buying real‐world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:

(1) How might the law treat “street crimes” in VR and AR—behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self‐help (which will offer an attractive alternative protection to users, but also a further excuse for real‐world police departments not to get involved).

(2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators?

(3) How might the law treat users’ alteration of other users’ avatars, or creation of their own avatars that borrow someone else’s name and likeness?

(4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it?

(5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech–conduct distinction?


Patenting Around Failure

Sean B. Seymore

Many patents cover inventions that do not work as described. Fingers often point to the U.S. Patent and Trademark Office (Patent Office), which is criticized for doing a poor job of examining patents. But the story is more complicated for at least three reasons. First, the Patent Office is at a clear disadvantage from an information standpoint. Inventors have little incentive to disclose failure because it might compromise patentability. Second, an inventor is not required to actually make everything that is claimed (or verify that everything that is claimed actually works) before filing a patent application. Third, inventors have an incentive to file patent applications early in the inventive process. Often, filing occurs during the initial stages of research and development, before much experimentation has been done and when the level of uncertainty is high. Together, these factors set the stage for an issued patent covering subject matter that does not work as described.

Of course, inventors continue to experiment during the years of patent examination. This additional experimentation inevitably reveals more information about the invention than the inventor knew at the time of filing, including if any of the claimed subject matter fails to work as described in the patent application. This raises an important issue that has been overlooked by both courts and scholars: When post‐filing experimentation reveals that some of the claimed subject matter does not work, is there a duty to act? This Article argues when failure comes to light the inventor has a legal obligation to, at a minimum, amend the claims. It then explains how to encourage inventors to disclose details about the failure in the patent record. This additional disclosure would have several upsides for the inventor: it would improve patent (examination) quality, enrich the public storehouse of technical knowledge, and promote the broader goals of the patent system.


Fourth Amendment Moralism

Anna Lvovsky

The Fourth Amendment is generally seen as a procedural provision blind to a defendant’s conduct in a given case, distinguished on that very ground from the Supreme Court’s frequently moralistic assessment of conduct in its due process privacy caselaw. Yet ever since the Court recentered Fourth Amendment protections around an individual’s reasonable expectations of privacy, it has consistently tied those protections to the nature and, specifically, the social value of the activities involved. As in its substantive due process cases, the Court frequently allots Fourth Amendment privacy interests based on its moral evaluation of private acts, privileging conventional social goods like domesticity, romantic relations, and meaningful emotional bonds. And in some cases—most notably those involving aerial surveillance, home visitors, and drug testing—the Court has adopted an expressly retrospective analysis, tying Fourth Amendment rights to a defendant’s actual conduct at the time of a search.

This unrecognized strain of moralism in the Fourth Amendment is a troubling development, unmoored from the Amendment’s text, hostile to its well‐documented history, and obstructive of its practical operation in regulating police abuses. Not least, that moralistic approach upends prevailing understandings of privacy, as a refuge from the pressures and expectations of society. Especially in the electronic age, as digital technologies vastly expand the police’s ability to parse categories of private data, the Court must cabin its moralistic turn, restoring a richer view of Fourth Amendment values as encompassing individualistic and unorthodox pursuits. This Article identifies two immediate steps for moving forward: renouncing the Court’s privileging of “intimate” over impersonal conduct and reconsidering the controversial binary‐search doctrine gleaned from the Court’s drug‐testing cases. More fundamentally, it joins an ongoing debate about the adequacy of the Court’s privacy‐based Fourth Amendment framework, suggesting both the importance and the difficulty of restoring a Fourth Amendment attuned to liberal values of individualism and moral autonomy.

Finally, this Article addresses what the surprising rise of Fourth Amendment moralism suggests about constitutional privacy rights more broadly. Belying the value of privacy as a sanctuary from social judgment, the Court’s persistently moralistic jurisprudence challenges the extent to which our Constitution has ever protected, and perhaps can ever protect, a robust right of “privacy” as such.


Comments

The Nuclear Option: What Can States Do to Encourage Clean Energy After Hughes and EPSA?

Jennifer Ko

In the absence of federal climate change policy, many states have adopted programs that encourage clean energy generation from sources such as wind, solar, and nuclear. Nuclear energy in particular remains an attractive option for a number of states pursuing clean energy policies because of its ability to generate electricity without producing any greenhouse gas emissions. Thus far, attempts by state regulators to encourage intrastate clean generation have also been trailed by fierce legal challenges from industry and consumer groups.

This Comment distills the case law on state clean energy programs, and focuses on the legal issues that have been raised in litigation involving New York and Illinois’s zero emission credit programs. It then proposes best practices that state regulators can adopt when designing clean energy programs so as to reduce litigation risk. By insulating their clean energy programs from legal challenges, states will be better equipped to achieve their individual climate change goals.


Unsettled: Victim Discretion in the Administration and Enforcement of Criminal Restitution Orders

David Peters

In 2008, a prominent Philadelphia businessman, Donald Dougherty, Jr., was charged with nearly one hundred counts of fraud, theft, bribery, and tax evasion. Dougherty was accused of engaging in illegal accounting practices as the owner, president, and sole shareholder of Dougherty Electric, Inc., an electrical contracting business. As a result of the accounting scheme, Dougherty defrauded the United States government of well over $1 million in taxes. In addition, Dougherty defrauded IBEW Local 98, the union with which his business contracted, of more than $670,000 in contributions owed to the IBEW benefit and pension plan. Dougherty pled guilty to all charges.

After Dougherty entered his plea, the court sentenced him to twenty‐four months in prison. In addition, pursuant to the federal Mandatory Victims Restitution Act (MVRA), the court ordered Dougherty to repay the victims of the crime for the losses suffered, $2.3 million owed in total to the United States government and the IBEW. The colorful facts of the case aside, nothing about the proceeding was particularly unusual.

That is until March 2016, when Dougherty petitioned the District Court for the Eastern District of Pennsylvania to have his restitution payment “marked as satisfied.” Dougherty had made a lump‐sum payment of $2.5 million to the federal government in December 2015, which fully satisfied his outstanding restitution and back taxes. Additionally, Dougherty had entered into a settlement agreement with the IBEW in 2011. By the terms of the settlement, Dougherty paid a lump sum of $200,000 to the union in exchange for “satisfaction of all obligations owed to IBEW and the IBEW Benefit Funds arising from the conduct underlying the restitution order.” In his petition, Dougherty contended that he had fulfilled his restitution obligation and the court should recognize as much.

The court has yet to rule on Dougherty’s petition. But the question it raises is a difficult one—whether a victim and defendant may settle a restitution payment under the MVRA is one that courts have not fully resolved.

The MVRA is the federal statute that regulates restitution for the most serious federal crimes. Congress enacted the MVRA to bring the federal restitution scheme more in line with the objectives of the victims’ rights movement by forcing sentencing judges to enter orders of restitution for the full amount of a victim’s loss. In passing the MVRA, Congress severely restricted judicial discretion in ordering restitution at the time of sentencing. In the same legislative act, Congress also bolstered the MVRA’s enforcement clause to ensure victims could control their participation in the restitution process. These two provisions are in tension when courts seek to apply the MVRA: although both provisions are intended to promote victims’ rights, they come into conflict when determining the scope of a victim’s ability to settle outstanding restitution orders.

This Comment argues that the enforcement provisions of the MVRA provide mechanisms by which a willing victim may settle an outstanding restitution order with a criminal defendant. The MVRA’s limitation on judicial discretion is not a limitation on a victim’s ability to dispose of restitution in a way she sees fit. Courts and judges err when they conflate a lack of judicial discretion in ordering restitution with a lack of victim discretion in settling such an order.

Not only is this a permissible reading of the statutory scheme, it is also a preferable one. The benefits of such an approach are twofold. First, it would safeguard the right of victims to participate in the criminal justice process, a central tenet of the victims’ rights movement. Second, for at least a certain segment of the victim community, it would increase victim satisfaction with restitution.


Volume 166, Issue 4 
March 2018
Articles

The Decline of Supreme Court Deference to the President

Lee Epstein & Eric A. Posner

According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the solicitor general’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate—barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to the growing self-assertion of the Court and the development of a specialized, private Supreme Court bar. We find no evidence for two other possible explanations—that the trend is due to greater executive overreaching than in the past, or to ideological disagreements between the Court and recent presidents.


Sovereigns, Shopkeepers, and the Separation of Powers

Jon D. Michaels

For decades, we have examined privatization with zeal and rigor. Relegated to the margins, however, have been inquiries into privatization’s close cousin: direct government market participation. Given the ubiquity of government commercial transactions, the political, legal, and economic challenges such transactions engender, and the rise of CEO‐style elected officials—the Trumps, Bloombergs, and Romneys of the world—almost evangelical in their commitment to running government like a business, closer study is warranted.

This Article characterizes direct government market participation as a complicated, confusing, and potentially dangerous fusion of sovereign and commercial power. It describes how this fusion may undermine markets, aggrandize State power, or do both at the same time. It compares the straddling of the sovereign and commercial realms with any number of other constitutionally problematic bridging efforts, including those to combine executive and legislative; executive and judicial; federal and state; civilian and military; church and State; and, of course, private and public powers. Lastly, it situates government market participation within its own separation‐of‐powers paradigm—and does so to help rationalize and domesticate the vexing but often necessary practice.


The Proficiency of Experts

Brandon L. Garrett & Gregory Mitchell

Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court’s Daubert ruling, strengthened judicial review of the reliability and the validity of an expert’s methods. Judges and scholars, however, have neglected the threshold question for expert evidence: whether a person should be qualified as an expert in the first place. Judges traditionally focus on credentials or experience when qualifying experts without regard to whether those criteria are good proxies for true expertise. We argue that credentials and experience are often poor proxies for proficiency. Qualification of an expert presumes that the witness can perform in a particular domain with a proficiency that non‐experts cannot achieve, yet many experts cannot provide empirical evidence that they do in fact perform at high levels of proficiency. To demonstrate the importance of proficiency data, we collect and analyze two decades of proficiency testing of latent fingerprint examiners. In this important domain, we found surprisingly high rates of false positive identifications for the period 1995 to 2016. These data would qualify the claims of many fingerprint examiners regarding their near infallibility, but unfortunately, judges do not seek out such information. We survey the federal and state case law and show how judges typically accept expert credentials as a proxy for proficiency in lieu of direct proof of proficiency. Indeed, judges often reject parties’ attempts to obtain and introduce at trial empirical data on an expert’s actual proficiency. We argue that any expert who purports to give falsifiable opinions can be subjected to proficiency testing and that proficiency testing is the only objective means of assessing the accuracy and reliability of experts who rely on subjective judgments to formulate their opinions (so‐called “black‐box experts”). Judges should use proficiency data to make expert qualification decisions when the data is available, should demand proof of proficiency before qualifying black‐box experts, and should admit at trial proficiency data for any qualified expert. We seek to revitalize the standard for qualifying experts: expertise should equal proficiency.


Comments

A Municipal Speech Claim Against Body Camera Video Restrictions

Matthew A. De Stasio

This Comment describes one approach to securing public access to the data collected by police‐worn body cameras (PWBC). Ever since the rapid expansion of body camera programs following highly publicized police shootings (particularly the shooting of Michael Brown in Ferguson, Missouri, in the summer of 2014), state legislatures across the country have rushed to decide who should have access to the collected video and how to limit its public release. Over half of the major police departments across the country are using body cameras supplied by a single manufacturer alone, and the storage and release of the video is an urgent issue. The patchwork of laws governing the disclosure of PWBC data has left the public without simple or consistent means of accessing that information.

Every state except New Hampshire exempts police records from public records requests. Many laws which explicitly address the release of PWBC data either grant disclosure discretion to a custodian or a judge, or they prohibit release entirely, absent special circumstances. The myriad restrictions on public access has stymied the avowed purpose of implementing body camera programs: to increase the transparency and public accountability of police practices.

The goal of fostering transparency to improve community relations would be more easily achieved if local governments and police departments, in the exercise of their discretion over local affairs, could publicly release video of contested police encounters without prior restraint. Some police departments seek to do just that, either in situations of suspected unwarranted police violence or matters of national importance. For example, in October of 2017 the Las Vegas Police Department publicly released a compilation of PWBC footage only two days after the worst mass shooting in U.S. history took place. Localities may seek to do so when it would improve community relations, inform public debate of police practices, and educate residents so they can effectively participate in the process of self‐government. However, state statutes may prevent localities from securing these benefits for their citizens.

In this Comment, I argue that state laws which restrict disclosure of PWBC data by municipal governments run afoul of the First Amendment’s Free Speech Clause and are subject to constitutional challenge by the municipalities themselves.


Halo Is Not the Saving Grace for the Patent System

Jennifer Hartjes

Patent law is facing growing pains as it tries to operate within a framework originally created with different technology in mind. As technological advancements have proliferated in recent decades, cracks in the patent system’s foundation have become apparent. As Justice Breyer pointed out, “[t]oday’s patent world is not a steam‐engine world. We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patent’s really about.” There is a mounting concern among scholars and members of Congress that the patent system is infested with invalid patents. While a precise number of invalid patents currently in force is not measurable, studies suggest that the over‐granting of patents is a real threat. Invalid patents increase transaction costs for subsequent innovators: innovators must navigate unnecessary red tape and non‐practicing entities (commonly referred to as “patent trolls”) can abuse the patent system by threatening to assert these invalid patents against others.

The patent system can combat the problem of invalid patents at three stages. First, more resources can be dedicated to the United States Patent and Trademark Office (PTO). The initial review of patent applications can be expanded to allow for a more thorough vetting upon initial receipt. Possible measures of reform could include hiring more examiners, increasing the time spent on each patent application, or requiring greater disclosure of prior art by the potential patentee. But reform at this stage would provide an incomplete solution because it would fail to dispose of bad patents that are already in circulation.

A second point at which invalid patents can be confronted is the post‐issuance, pre‐litigation stage. This approach was followed in the 2011 America Invents Act (AIA). With a concern for invalid patents at the forefront of policy discussions, the AIA bolstered administrative proceedings at this intermediate stage, introducing inter partes review and post‐grant review. Congress sought to create an “administrative route more efficient and less expensive than district court litigation.” Still, invalid patents have continued to plague the patent system in the years following the implementation of the AIA. Setting aside the questionable effectiveness of these administrative routes, there is a more immediate question of whether these proceedings by the PTO are even constitutional. The Supreme Court will address this issue in its coming term.

The final stage at which invalid patents can be eliminated is litigation. When optimally structured, litigation is a promising method of correcting errors carried over from the patent issuance stage. An adversarial system provides an opportunity for a judge to have a (potentially) fair view of both parties’ positions. The finality of the decision provides clarity for patent owners and the public. But the current litigation system suffers from procedural defects, making it costly, time consuming, and ill‐equipped to handle an abundance of patents. Patent litigation costs in the United States are extremely high, especially as compared to foreign patent systems. In addition to the high costs, parties are tied up for an average of two and a half years before their cases reach trial. With these substantial burdens, patent litigation is not a realistic option for small companies, nor is the system well‐equipped to sort through a large volume of patent disputes. Thus, patent litigation is a good candidate for reform. A more streamlined system will allow increased access to litigation, thereby increasing the number of patents that courts can either dispose of or validate.


Volume 166, Issue 3 
February 2018
Articles

Contested Visions: The Value of Systems Theory for Corporate Law

Tamara Belinfanti & Lynn Stout

Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remain hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. The prevailing narrative for the past quarter century has been that corporations “belong” to shareholders and should pursue “shareholder value,” but support for that approach, which has long been justified as essential for managerial accountability, is eroding. Its proponents have retreated to the position that corporations should seek “long‐term” shareholder value. Yet, as this Article shows, when shareholder value is interpreted to mean “long‐term” shareholder value, it no longer offers the sought‐after managerial accountability.

What can? This Article argues that systems theory offers an answer. Systems theory is a well‐developed design and performance measuring methodology routinely applied in fields such as engineering, biology, computer science, and environmental science. It provides an approach to understanding the nature and purpose of corporate entities that is not only consistent with elements of the many otherwise‐conflicting visions of the corporation that have been developed, but also with important and otherwise difficult‐to‐explain features of corporate law and practice. It recognizes, and explains, the possibility and desirability of corporations pursuing multiple goals. It also offers proven methods for measuring and improving corporate performance—methods that highlight the critical role of corporate sustainability, and specific strategies to promote it. Finally, it cautions that, by ignoring the lessons of systems theory, shareholder value thinking may have encouraged regulatory and policy interventions into corporate governance that are not only ineffective, but destructive.


Delegating for Trust

Edward H. Stiglitz

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies’ expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible rationality and transparency afforded by administrative procedures. Drawing on positive political theory, this Article shows that Congress may delegate, not for expertise, but for public trust, which the legislature itself (appropriately) lacks due to concerns over the influence of special interest lucre, among other reasons. The procedural constraints that bind administrative agencies, as made credible by judicial review, encourage fairness and rationality and discourage the most egregious abuses of lawmaking authority. In delegating, Congress takes advantage of these credible constraints, which the institution cannot easily develop internally; and in relieving Members of Congress from public suspicion, it also advances their parochial electoral objectives.

This vision of the administrative state accounts for a number of features of our legal and political system. It explains, for instance, why Congress has generally not invested in greater internal capacity—because trust, not capacity is the binding constraint; why, as a positive matter, fairness and transparency are essential to administrative procedures; and why, if those administrative procedures undergo erosion, as some suggest has occurred, anxiety about administrative lawmaking might arise. The Article concludes with a discussion of normative and doctrinal implications of this trust‐based conception of administration, including a call for reorienting administrative procedures to more fully promote credible rationality.


The Empty Idea of "Equality of Creditors"

David A. Skeel, Jr.

Comments

Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes

Maura Douglas

American Indian and Alaska Native women face the highest rates of sexual assault of any group in the United States, and most often such attacks are by non‐Indian offenders. Since Oliphant v. Suquamish Indian Tribe, tribes cannot exercise criminal jurisdiction over non‐Indians, even for crimes committed against an Indian victim in federally recognized Indian country. A history of complex jurisdictional and intergovernmental issues between federal, state, and tribal authorities further impede the investigation and prosecution of these crimes. In the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), Congress extended criminal jurisdiction to tribes in a limited context over non‐Indian defendants—so long as they possess ties to the tribe and to the victim as a domestic or dating partner. The requirement that a defendant must have a relationship with the victim, tribe, and land is novel. Indeed, during the VAWA 2013 legislative debates weighing the jurisdictional grant, even Senate opposition conceded that once jurisdiction was extended to crimes of domestic violence, “there would be no principled reason not to extend it to other offenses as well.” Federal Indian law affirms Congress’s plenary authority to recognize tribal sovereignty, but does the law require special domestic violence criminal jurisdiction for tribes to be so restricted? I argue it does not. This Comment first investigates the history of jurisdiction in Indian country and recognition of inherent tribal sovereignty by Congress. Second, it considers the problem of sexual violence in Indian country. Third, it assesses the main arguments in opposition to the current jurisdictional grant in VAWA 2013 to determine whether Congress can and should recognize tribal authority to prosecute all non‐Indian crimes of sexual violence, as well as concurrent crimes of domestic and dating violence, committed against Indian victims in Indian country. In light of these oppositional arguments, this Comment argues that Congress can and should recognize such jurisdictional authority of tribal governments, and proposes specific language to affirm the inherent powers of tribes to further protect their land and their people.


A New Hurdle to International Cooperation in Criminal Investigations: Whether Foreign Government‐Compelled Testimony Implicates the Privilege Against Self‐Incrimination

Jennifer Reich

Volume 166, Issue 2 
January 2018
Articles

Pandora’s Digital Box: The Promise and Perils of Digital Wallets

Adam J. Levitin

Digital wallets, such as ApplePay and Google Pay, are smart payment devices that can integrate payments with two‐way, realtime communications of any type of data. Integration of payments with realtime communications holds out tremendous promise for consumers and merchants alike: the combination, in a single, convenient platform, of search functions, advertising, payment, shipping, customer service, and loyalty programs. Such an integrated retail platform offers consumers a faster and easier way to transact, and offers brick‐and‐mortar retailers an eCommerce‐type ability to identify, attract, and retain customers. At the same time, however, digital wallets present materially different risks for both consumers and merchants than traditional plastic card payments precisely because of their smart nature.

For consumers, digital wallets can trigger an unfavorable shift in the applicable legal regime governing the transactions, increase fraud risk, create confusion regarding error resolution, expose consumers to non–FDIC‐insured accounts, and substantially erode transactional privacy. These risks are often not salient to consumers, who thus cannot distinguish between different digital wallets on the basis of risk. Consumers’ inability to protect against these risks points to a need for regulatory intervention by the Consumer Financial Protection Bureau to ensure minimum standards for digital wallets.

For merchants, digital wallets can divest valuable customer information used for antifraud, advertising, loyalty, and customer service purposes. Digital wallets can also facilitate poaching of customers by competitors, impair merchants’ customer relationship management, deprive merchants of influence over consumers’ payment choice and routing, increase fraud risk, subject merchants to patent infringement liability, and ultimately increase the costs of accepting payments. Merchants are constrained in their ability to refuse or condition payments from digital wallets based on the risks presented because of merchant rules promulgated by credit card networks. These rules raise antitrust concerns because they foreclose entry to those digital wallets that offer merchants the most attractive valuation proposition: wallets that do not use the credit card networks for payments.


Our Regionalism

Jessica Bulman-Pozen

This Article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States—through interstate cooperation, organization of federal administrative agencies, and hybrid state–federal efforts—it explores how regions have shaped American governance across the twentieth and early twenty‐first centuries.

In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to develop its bureaucracy. Incorporating regional accommodations and regional organization into new programs allowed the federal government to expand its role in domestic policymaking. As interstate regionalism yielded to federal regionalism, the administrative state was propelled forward by a strategy that had arisen to resist it. Even as regions facilitated the expansion of the New Deal administrative state, however, the regional organization and argument that underpinned this development left room for state influence within federal programs and for new projects of multistate and joint state–federal governance. The century’s next regional moment brought this potential to the fore, with regions brokering the resurgence of the states in Great Society programs.

In the early twenty‐first century, new regional undertakings have been celebrated as fluid, nonhierarchical networks. Although the network metaphor has been exhausted, this characterization anticipates the emergence of “regionalism without regions”: collaborations among multiple state and federal actors that need not involve contiguous areas. Just as regional improvisation has responded to governance challenges of past decades, this nascent development responds to today’s polarized partisanship. It betokens both the revival and the transformation of the political sectionalism that has always informed American regionalism, even as it slipped behind an administrative veneer for much of the twentieth century.


Copyright as Market Prospect

Shyamkrishna Balganesh

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property—and harm‐based torts—has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a potential economic benefit that was likely to accrue to the plaintiff prior to the defendant’s intervention. Premised on the idea of a probabilistic harm and driven by instrumental considerations, the tort works by treating a possible market benefit as the basis of an interest that is worthy of protection against specific behavior. As a supposed incentive for creativity, copyright law operates in ways that are strikingly similar to tortious interference with a prospect. Much like tortious interference with a prospect, it functions by first identifying a zone of probabilistic market benefits, and then protecting that zone against specific volitional interferences through a framework of liability. This Article unpacks the strong analytical and normative parallels between the two, and argues that their similarity sheds new and important light on several persistent puzzles within current copyright jurisprudence.


Comments

FDA Regulation of 3D‐Printed Organs and Associated Ethical Challenges

Elizabeth Kelly

The implications of pervasive implementation of 3D printing with biological material, also known as “bioprinting,” are vast. They present never‐before‐seen hurdles, which are particularly complicated due to the vulnerability of the patients, who often need new organs to survive, involved. In this Comment, I limit the scope of this inquiry to the most immediate challenges of embracing 3D‐printed organs in our health care market: potential statutory roadblocks, regulatory concerns over manufactured organs, and ethical challenges of which we must remain aware. I submit one path by which 3D‐printed organs can fit in our current legal and regulatory framework. I also define who should be charged with regulating them and propose how future regulators should do so. Finally, I raise additional concerns of 3D‐printed organs that will require deeper analysis as more information becomes available, including the myriad ethical challenges presented by this new technology.

The U.S. Food and Drug Administration (FDA) is the appropriate body to regulate 3D‐printed organs because a manufactured organ must be treated differently than a human organ, which can be transplanted as “simply” part of the practice of medicine. It remains to be seen how the FDA will gather sufficient data to satisfy premarket approval requirements, determine who gets access and when, and how to govern the marketing of 3D‐printed organs because the output is individualized. But the process by which the organs are created can be scaled dramatically. In so doing, those in charge must also confront unique, multifaceted ethical challenges.


Anti‐SLAPP Statutes and the Federal Rules: Why Preemption Analysis Shows they Should Apply in Federal Diversity Suits

William James Seidleck

In an effort to protect the exercise of free speech, many states have enacted “anti‐SLAPP” statutes—which provide special motions making the dismissal of meritless defamation claims quick and easy. In doing so, these state statutes help protect speakers against abusive litigation meant to deter speech. However, because these statutes use procedure to protect what states view as important rights, their operation in federal diversity cases raises vexing Rules Enabling Act questions. Some federal circuit courts have taken the view that the substantive ends of anti‐SLAPP statutes mean that their protections should apply in federal court. But other federal circuit opinions argue that the Federal Rules of Civil Procedure provide a closed universe of dispositive motions, precluding the availability of anti‐SLAPP motions to federal defendants.

To address the anti‐SLAPP problem, this Comment advocates adopting a proposal of looking at Rules Enabling Act questions as akin to preemption analysis. In other words, deciding whether the Federal Rules prevent the operation of a state provision in federal court means asking if the state provision conflicts with federal policy. Here, state anti‐SLAPP statutes are not designed to promote the efficiency of federal litigation—the purpose served by Rules 12(b)(6) and 56 motions. Instead, anti‐SLAPP motions provide specific protections against strike suits in certain, state‐created causes of action. Likewise, anti‐SLAPP statutes do not transgress broader federal policies. And failure to apply anti‐SLAPP statutes in federal court would raise troubling federalism concerns. Thus, anti‐SLAPP statutes should apply in federal diversity proceedings.


Volume 166, Issue 1 
November 2017
Articles

Incredible Women: Sexual Violence and the Credibility Discount

Deborah Tuerkheimer

Credibility is central to the legal treatment of sexual violence, as epitomized by the iconic “he said/she said” contest. Over time, the resolution of competing factual accounts has evidenced a deeply skeptical orientation toward rape accusers. This incredulous stance remains firmly lodged, having migrated from formal legal rules to informal practices, with much the same result—an enduring system of disbelief. Introducing the concept of “credibility discounting” helps to explain the dominant feature of our legal response to rape. Although false reports of rape are uncommon, law enforcement officers tend to default to doubt when women allege sexual assault, resulting in curtailed investigations as well as infrequent arrests and prosecutions. Credibility discounts, which are meted out at every stage of the criminal process, involve downgrades both to trustworthiness (corresponding to testimonial injustice) and to plausibility (corresponding to hermeneutical injustice).

By conceptualizing prejudiced disbelief as a distinct failure of justice, one deserving of separate consideration, we may begin to grasp the full implications of credibility discounting, beyond faulty criminal justice outcomes. Attending to this failure of epistemic justice on its own terms advances a conversation about how best to reform institutions so that credibility judgments do not perpetuate inequality. To this end, credibility discounting should count as actionable discrimination. Under certain conditions, moreover, this recognition raises constitutional concerns. When rape victims confront a law enforcement regime predisposed to dismiss their complaints, they are effectively denied the protective resources of the state.


Tiers for the Establishment Clause

Richard H. Fallon, Jr.

When compared with other constitutional doctrines, Establishment Clause doctrine is confused and anomalous, both substantively and with regard to standing. The Supreme Court ought to craft reforms in light of a wide‐angle appraisal of pertinent comparisons, analogies, and interconnections. Substantively, the Justices should adopt the tiers‐of‐scrutiny approach that the Court employs under the Free Exercise, Free Speech, and Equal Protection Clauses. Within a tiered‐scrutiny regime, the Court should strictly scrutinize any statute that classifies or requires classifications based on religion. It should prescribe intermediate scrutiny for statutes that expend tax revenues to provide material benefits to churches or religiously affiliated organizations on a nondiscriminatory, nonpreferential basis. And it should clarify its approach to determining which symbolic supports for religion rise to the level of Establishment Clause violations. Correspondingly, the Court should realign standing doctrine to equate the injuries needed for standing more closely with those against which the Establishment Clause furnishes substantive protection.


Annoy No Cop

Josh Bowers

The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state intrusion. If precise rules are not prescribed in advance, individuals may lack notice of what is prohibited and may be subjected to arbitrary treatment. Thus, the Constitution commands that legal officials honor formal terms of engagement and limit enforcement efforts to narrowly defined crimes. But, under pressing conditions, the prevailing rules may prove too rigid, compelling courts to carve out post hoc exceptions. As a matter of practice, these exceptions tend to operate asymmetrically—benefiting the state only. This Article uses Fourth Amendment doctrine to examine that asymmetry.

I coin the term “meaningful understanding” to describe the functional Fourth Amendment methodology by which courts sometimes accommodate law‐enforcement needs, fears, and even mistakes. The enterprise is admirable, but there is a dark side: a judge cannot understand meaningfully a reasonable officer in his particular situation without concurrently tolerating an otherwise impermissible intrusion upon autonomy. The officer enjoys a piecemeal exception that the individual experiences as a piecemeal (and often unanticipated) burden. In this way, meaningful understanding works to excuse unexpected coercion. The individual is left unfairly surprised—unable to plan a law‐abiding life consistent with the promise of the legality principle.

This troubling state of affairs arises most often in the context of order‐maintenance policing. Street encounters are fast‐moving and understandably unpredictable. In such circumstances, officers may end up deviating unforeseeably from the usual rules, confounding the capacity of pedestrians and motorists to comprehend the scope of state power and the quality of individual rights. We need not look far to find tragic real world examples. I discuss several, including the traffic stop and arrest of Sandra Bland, a motorist whose subsequent death in a jail cell became a focus of the legal and social justice movement known as “Black Lives Matter.”

The jurisprudential path forward, however, is not to command greater fidelity to formal Fourth Amendment rules, but instead to try within limits to understand much more. In this vein, Jeremy Waldron has described a “procedural” conception of legality, characterized by “modes of argumentation” capacious enough to bring all reasonable sides of the story to bear. The goal is ambitious. But the Article concludes with a modest and viable set of doctrinal reforms to better pursue meaningful understanding—articulated and evaluated bilaterally.


Comments

Blacklisting Foreign Terrorist Organizations

Justin S. Daniel

Designations of Foreign Terrorist Organizations (FTO) by the Secretary of State under Section 1189 of the Antiterrorism and Effective Death Penalty Act of 1996 provide a key means of thwarting global terror networks by isolating and stigmatizing such groups, and by depriving them of financial and human support. This Comment examines the role of classified information in the FTO designation process and analyzes whether the Secretary’s reliance on classified information—to which designated FTOs do not have access—comports with the Due Process Clause of the Fifth Amendment, particularly when the classified record is essential to the Secretary’s determination.

To answer that question, this Comment first traces a series of cases in the U.S. Court of Appeals for the District of Columbia Circuit, the tribunal charged with hearing challenges to FTO designations, and argues that—notwithstanding statements by the court evincing a reluctance to resolve the issue—D.C. Circuit precedent has likely foreclosed access to the classified record by designated groups, even when the information withheld is essential to the Secretary’s designation decision.

This Comment then presents a constitutional due process analysis and argues that—because Section 1189 targets foreign (as opposed to domestic) organizations, which must establish substantial connections with the U.S. to receive due process protection—courts should be reluctant to grant FTOs constitutional protection for interests divorced from the contacts used to establish U.S. presence. Finally, this Comment ventures a comparative analysis by looking to a Cold War–era scheme similar to Section 1189 and to the contemporary cases dealing with habeas corpus in the terrorist detainment context.


Smart Contracts and the Cost of Inflexibility

Jeremy M. Sklaroff

“Smart contracts” are decentralized agreements built in computer code and stored on a blockchain. Proponents imagine a future where commerce takes place exclusively using smart contracts, avoiding the high costs of contract drafting, judicial intervention, opportunistic behavior, and the inherent ambiguities of written language.

These decentralized code‐only contracts are part of a decades‐long quest to eliminate supposed inefficiencies in traditional written agreements. Electronic data interchange (EDI), a contracting technology from the 1970s, was designed with the same goal and garnered similar fanfare. Commentators at the time imagined a revolution in the way firms transacted and a full shift away from anything resembling a paper contract. Ultimately EDI failed to achieve these goals—it empowered, rather than circumvented, human decisionmakers along with their “inefficient” way of forming agreements. In doing so, EDI successfully reduced some transaction costs while preserving efficient forms of contractual flexibility.

Smart contracts are indeed more technologically sophisticated than EDI. Smart contract scripting languages offer a broader range of operations and greater scalability. Smart contracts are capable of seamlessly integrating with the operational and financial systems at the core of modern firms, whereas EDI transactions occurred in very early digital environments that required human intermediaries. Proponents of the smart contract revolution, therefore, do not describe the technology as a way to merely enhance human activity; they argue it can replace every stage of agreement formation and performance. From a purely technical standpoint, they might be right.

However, shifting away from human‐language contracts creates new inefficiencies. These stem from three features of smart contracts: automation, which requires that every agreement be formed from fully‐defined terms; decentralization, which conditions performance on verification by third parties; and anonymity, which eliminates the use of commercial context to give meaning to agreement terms. As a result, it is extremely costly to form smart contracts in a volatile environment or whenever there’s a level of uncertainty surrounding the agreement.

On the other hand, semantic contracts are flexible. They enable parties to use performance standards, generally‐defined contract terms, to create an enforceable agreement without requiring complete knowledge of what might happen in the future. Standards also allow parties to responsively incorporate commercial customs into their agreement, circumventing the need for explicit but redundant negotiation. And once their agreement is formed and executed, the parties are nonetheless free to dynamically shape their relationship through informal modifications or by selectively enforcing breaches. These two forms of flexibility—linguistic ambiguity, and enforcement discretion—create important efficiencies in the contracting process. By eliminating this flexibility, smart contracting will impose costs that are more severe and intractable than the ones it seeks to solve.


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