Blog

November 05th, 2018 | Online Edition

English Justice for an American Company?

I. Introduction Imagine finding yourself in litigation in a foreign country. Then, imagine learning that, in the past, your opponent has routinely hired the person who will be the “neutral” adjudicator in your case. Now imagine that since the commencement of the litigation your opponent subsequently has appointed the adjudicator to also be its party-appointed […]

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July 01st, 2018 | Symposium Issue Volume 96

The Rise and Fall of Fear of Abuse in Consumer Bankruptcy

Prepared for a symposium celebrating the groundbreaking career of Jay Westbrook, this Article examines recent evidence of fear of abuse of the benefits of consumer bankruptcy and the gradual abatement of that fear in modern consumer insolvency law reform. It marshals evidence of a recent and accelerating retreat in both the judicial discretion that Westbrook attributed […]

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July 01st, 2018 | Symposium Issue Volume 96

Local Legal Culture from R2D2 to Big Data

I. Introduction If you ask Teresa Sullivan, Elizabeth Warren, or Jay Westbrook about the early years of their groundbreaking Consumer Bankruptcy Project (CBP), they eventually will tell you about R2D2, their mobile photocopier. They carted R2D2 across the country to copy the bankruptcy court records that formed the backbone of their examination of the lives […]

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July 01st, 2018 | Symposium Issue Volume 96

A Functional Analysis of SIFI Insolvency

In a 1989 article that remains one of the clearest, most sensible explications of an especially tricky point of bankruptcy law, Jay Westbrook announced a forthright methodology: “I call my approach ‘functional,’ because it proceeds by working through the problem from first principles.”[1] The same basic technique can tell us a lot about how banks—and […]

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July 01st, 2018 | Symposium Issue Volume 96

Modified Universalism as Customary International Law

Introduction “Modified universalism” is to date the dominant approach for addressing cross-border insolvency.[1] Heavily influenced by the scholarship and advocacy of Professor Jay Westbrook,[2] it has evolved into a set of norms that can guide parties in actual cases. Adapted to the reality of a world divided into different legal systems and myriad business structures […]

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July 01st, 2018 | Symposium Issue Volume 96

A New Approach to Executory Contracts

I. Introduction and Summary Few topics have bedeviled the bankruptcy community as much as the proper treatment of executory contracts under § 365 of the Bankruptcy Code.[1] The case law is “hopelessly convoluted” and a “bramble-filled thicket.”[2] While many have struggled in the bootless task of providing coherence to the unwieldy corpus of case law […]

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July 01st, 2018 | Symposium Issue Volume 96

Global Insolvency Proceedings for a Global Market

In this time of relative prosperity, large multinational companies are filing insolvency proceedings all over the world.[1] Restructuring is now part of the daily routine of global business—back then a bit more, at the moment a bit less, but always a stream of needed repairs. The overall challenge is to manage damaged enterprises across borders […]

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July 01st, 2018 | Online Edition

Hurricane Harvey and the Houston Housing Market

Introduction In August 2017, Hurricane Harvey decimated parts of Houston and other coastal Texas cities. As America’s fourth largest city (with a population of approximately 2.3 million[1]), any major storm that strikes Houston is potentially catastrophic. Harvey, a category 4 tropical storm, was not your average storm. Harvey was the largest storm to hit Texas […]

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June 17th, 2018 | Online Edition

The Unending Floods

Introduction As Hurricane Harvey grew in strength and moved towards the Texas coast in August 2017, an immigration storm brewed as well. As the hurricane hit, federal and state policymakers were adopting immigration decisions that would reshape the way immigrants are treated in the state of Texas. In addition to the physical and temporal proximity […]

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May 17th, 2018 | Issue 6 Volume 96

Rethinking Judicial Review of High Volume Agency Adjudication

Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief—the sort of consideration that an agency buckling under the strain […]

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May 17th, 2018 | Issue 6 Volume 96

The Attack on American Cities

American cities are under attack. The last few years have witnessed an explosion of preemptive legislation challenging and overriding municipal ordinances across a wide range of policy areas. State–city conflicts over the municipal minimum wage, LGBT antidiscrimination, and sanctuary city laws have garnered the most attention, but these conflicts are representative of a larger trend […]

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April 05th, 2018 | Issue 5 Volume 96

Lexipol

This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation—Lexipol LLC—in the creation of internal regulations for law enforcement agencies across the United States. Lexipol was founded in […]

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April 05th, 2018 | Issue 5 Volume 96

As-Applied Nondelegation

The nondelegation doctrine is powerful—so powerful that the Supreme Court is afraid to use it. The doctrine holds that Congress cannot delegate its legislative power to agencies. If the Court were to enforce the doctrine, entire statutory provisions—and perhaps entire statutory schemes—would be at risk of invalidation. Yet there is no need for such a […]

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March 11th, 2018 | Issue 4 Volume 96

Tracing Equity

Law and economics scholars have long argued that efficiency is best served when a firm’s capital structure is arranged as a single hierarchical value waterfall. In such a regime, claimants with seniority are made whole before the next-junior stakeholders receive anything. To implement this single waterfall approach, those scholars envision a property-based mechanism: a blanket […]

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March 11th, 2018 | Issue 4 Volume 96

Risk and Anxiety

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their legal claims are viable. Plaintiffs have argued that data breaches create a risk of future injury, such as identity theft, fraud, or damaged reputations, and that breaches […]

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March 11th, 2018 | Issue 4 Volume 96

Law Firms and Their Partners Revisited

Lawyers once joined their firms with the expectation that they would remain, become partners, and work themselves up the ladder of lockstep compensation. Lateral movements of lawyers among firms were rare. Ethics norms of the time assumed lawyers stayed with their firms.[1] That, of course, has changed as lawyer mobility has become a pervasive and […]

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February 10th, 2018 | Issue 3 Volume 96

Gender and the Tournament: Reinventing Antidiscrimination Law in an Age of Inequality

Since the 1970s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This Article argues that this is a mistake. Instead, Gender and the Tournament attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both […]

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February 10th, 2018 | Issue 3 Volume 96

Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age

We live in a time of anxiety about the rule of law. In railing against individual judges and their decisions, angry protesters—including elected officials and the President—presume a knowledge of what the Constitution requires, judicial pronouncements to the contrary notwithstanding. Recent bluster raises a question about what would occur if the President ordered government officials […]

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January 13th, 2018 | Online Edition

The 9th Circuit’s Contrived Comedy of Errors in Washington v. Trump

President Trump’s January 27 Executive Order[1] on immigration sent shockwaves throughout our legal order. For 90 days, certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—deemed “detrimental”[2] to American interests—would be denied entry. For 120 days, the Refugee Admissions Program would be suspended. Syrian refugees in particular would be denied entry indefinitely. Almost […]

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December 21st, 2017 | Issue 2 Volume 96

CEO Pay Redux

Managerial power theory holds that structural flaws in corporate governance, such as board defenses, enable opportunistic managers to extract excessive pay. While this theory has proven highly influential, this Article argues that it fails to answer important questions. For example, how does managerial power theory relate to the prevailing economic paradigm of CEO pay as […]

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December 21st, 2017 | Issue 2 Volume 96

International Law in the Post-Human Rights Era

Abstract International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what has been […]

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December 21st, 2017 | Issue 2 Volume 96

Law, Organizing, and Status Quo Vulnerability

This is an era of striking economic and political inequality. The statistics are familiar, but a few numbers are worth highlighting. Income disparities in the United States are now the highest they have been since the Gilded Age,[1] with the top 1% of earners taking home 20.1% of national income.[2] In fact, the twenty wealthiest […]

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November 15th, 2017 | Issue 1 Volume 96

Privatization and State Action

It’s an absurd and astonishing fact about current constitutional law that it still hasn’t answered, and can’t answer, the most basic questions about privatization. We know the ratio between American soldiers and American private military contractors in the Iraq war: one to one.[1] We know the Central Intelligence Agency (CIA) used such contractors to interrogate—and […]

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November 15th, 2017 | Issue 1 Volume 96

Beyond the Bully Pulpit

Abstract The President’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the President. The President speaks to the entire population, about the full range of domestic and international issues we collectively confront, and on behalf of the country to the rest of the […]

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November 10th, 2017 | Online Edition

Data Extraterritoriality

 Introduction Data’s intangibility poses significant difficulties for determining where data is located. The problem is not that data is located nowhere,[1] but that it may be located anywhere, and at least parts of it may be located nearly everywhere. And access to data does not depend on physical proximity. These implications of data’s intangibility challenge […]

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May 16th, 2017 | Issue 6 Volume 95

Abortion: A Woman’s Private Choice

Chemerinsky and Goodwin, believing that Roe was “unquestionably correct in its conclusion” but that its progeny—cases that shifted the law to the undue burden test and toward upholding restrictions on abortion—were misguided, assert that abortion is best regarded under the Constitution as a private choice for each woman. Their article begins by explaining what they […]

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May 16th, 2017 | Issue 5 Volume 95

Pennoyer Was Right

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally. To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn’t a matter of federal law, but […]

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April 13th, 2017 | Issue 5 Volume 95

Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City

At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. Cohen’s Article traces […]

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April 13th, 2017 | Issue 5 Volume 95

Liberty in Loyalty: A Republican Theory of Fiduciary Law

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the […]

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April 05th, 2017 | Issue 4 Volume 95

Federalism and State Democracy

Schleicher’s Article addresses the consequences of second-order elections—voting occuring in state and local elections that merely reflects voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates—for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends […]

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March 30th, 2017 | Issue 3 Volume 95

Public-Private Cybersecurity

Eichensehr explores the line between public and private cybersecurity functions and provides a descriptive account of the public-private cybersecurity system. Her Article first highlights the relative roles of the U.S. government and private sector in four important contexts related to international cybersecurity threats: disrupting networks of infected computers used by transnational-criminal groups, remediating software vulnerabilities […]

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March 30th, 2017 | Issue 3 Volume 95

Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors

This Article explores the ways in which states work with non-state actors to accomplish their military and political objectives, with particular concern for states who use non-state actors as a proxy to violate international law. The authors recognize that existing international law doctrines on state responsibility for such behavior leaves an accountability gap, fails to […]

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January 12th, 2017 | Issue 2 Volume 95

Constitutional Archetypes

Law contends as an empirical matter that constitutional narratives of the state boil down to a combination of three basic archetypes—namely, a liberal archetype, a statist archetype, and a universalist archetype. The liberal archetype is closely identified with the common law tradition and views the state as a potentially oppressive concentration of authority in need […]

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January 12th, 2017 | Issue 2 Volume 95

Immigrant Protective Policies in Criminal Justice

Eagly argues that protective gaps for immigrants in local criminal justice policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each […]

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January 12th, 2017 | Issue 2 Volume 95

The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations

King and Wright, in the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveal a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, they found that what once were informal, disfavored interactions have quietly, […]

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January 12th, 2017 | Issue 2 Volume 95

The Brave New Path of Energy Federalism

For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” a fixed and legalistic boundary between federal and state regulators. Rossi explores how three recent Supreme Court decisions limit dual sovereignty’s role as the […]

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December 20th, 2016 | Issue 1 Volume 95

The Surprising Resilience of the Patent System

Mark Lemley states that the patent system “seems in the midst of truly dramatic change.” Despite this, Lemley finds that “something curious has happened to the fundamental characteristics of the patent ecosystem during this period: very little.” Lemley explores this surprising result, first by reviewing the changes to the patent system in the past thirty-five […]

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December 20th, 2016 | Issue 1 Volume 95

What Are Tax Havens and Why Are They Bad?

In this book review, Conor Clarke consider’s Gabriel Zucman’s new book, The Hidden Wealth of Nations: The Scourge of Tax Havens. Clarke first summarizes and explains Zucman’s central findings for a legal audience, then situates those findings against the backdrop of two long-running debates in international taxation—what is a tax haven, and why are they […]

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May 19th, 2016 | Issue 6 Volume 94

Banker Loyalty in Mergers and Acquisitions

When investment banks advise on merger and acquisition (M&A) transactions, are they fiduciaries of their clients, gatekeepers for investors, or simply arm’s-length counterparties with no other-regarding duties?  Scholars have generally treated M&A advisors as arm’s-length counterparties, putting faith in the power of contract law and market constraints to discipline errant bank behavior.  In this Article, […]

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May 19th, 2016 | Issue 6 Volume 94

Enforcement Discretion at the SEC

The Dodd-Frank Wall Street Reform Act allowed the Securities and Exchange Commission (SEC) to bring almost any claim that it can file in federal court to its own administrative law judges (ALJs). In this Article, Professor David Zaring evaluates the SEC’s new ALJ policy both qualitatively and quantitatively, offering an in-depth perspective on how formal […]

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April 25th, 2016 | Issue 5 Volume 94

Incomplete Designs

Many legal rules are designed to address the imperfections of real-world institutions. Rules of justiciability and deference, statutes setting administrative deadlines, multinational treaties that protect foreign nationals—all are designed, at least to a degree, to minimize and correct the limitations of courts, agencies, and self-interested states at making the decisions the law requires of them. […]

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April 25th, 2016 | Issue 5 Volume 94

Owning Red: A Theory of Indian (Cultural) Appropriation

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another.  While these and other incidents make contemporary headlines, American […]

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April 25th, 2016 | Issue 5 Volume 94

Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice

American criminal law has a deep commitment to the presumption of innocence.  Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh.  Professor Whitman addresses this troubling state of affairs.  He contrasts the American approach with the approach of the inquisitorial tradition of continental Europe.  Inquisitorial justice, it argues, has a less […]

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March 27th, 2016 | Issue 4 Volume 94

Redundancy: When Law Repeats Itself

In this Article, Professor John M. Golden explores the puzzle of legal anti-redundancy and examines how legal doctrine can be designed to obtain important benefits from redundancy while substantially mitigating anti-redundancy concerns.  He analyzes redundancy and anti-redundancy as general legal phenomena, illustrates their interaction through detailed examples from patent law, and suggests how redundancy and anti-redundancy […]

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March 10th, 2016 | Issue 3 Volume 94

If You Can’t Beat ’Em, Join ’Em? How Sitting by Designation Affects Judicial Behavior

Judges, lawyers, and scholars have long decried the high reversal rate district courts face in patent cases. Many have suggested greater district court specialization as a solution, and Congress in 2011 enacted legislation to promote such specialization. In this Article, Professors Lemley and Miller investigate the impact of a novel measure of a judge’s experience […]

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March 10th, 2016 | Issue 3 Volume 94

Institutional Flip-Flops

Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive, privilege, federalism, and the role of courts. Though these judgments are defended with great intensity and conviction, some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as […]

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March 10th, 2016 | Issue 2 Volume 94

Other People’s Papers

The third party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They […]

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March 10th, 2016 | Issue 2 Volume 94

The Arbitration Bootstrap

Arbitration clauses have become ubiquitous. Arbitration clauses require consumers and employees to waive their rights to bring litigation in court, leaving private arbitration as their only avenue to seek redress for violations of any law, including consumer protection laws, antitrust law, and anti-discrimination laws. The arbitration process is less protective of consumers and employees in […]

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March 09th, 2016 | Issue 1 Volume 94

Property as Institutions for Resources: Lessons from and for IP

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond […]

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March 09th, 2016 | Issue 1 Volume 94

Do Laws Have a Constitutional Shelf Life?

Times change. A statute passed today may seem obsolete tomorrow. Does the Constitution dictate when a law effectively expires? In Shelby County v. Holder, the 2013 decision that invalidated a provision of the Voting Rights Act, the Court seems to answer that question in the affirmative. Although rational and constitutional when written, the Court held […]

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