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

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

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

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

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

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

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

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

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

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,… 

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

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

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

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

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,

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

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

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

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

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

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,

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

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

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

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

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

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‐

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

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–

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

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

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

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

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

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

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

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

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