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Bankruptcy and the State
Get PDFAnticipating a wave of bankruptcies caused by the economic and financial effects of the COVID-19 pandemic, numerous commentators proposed measures to expand the institutional capacity of the bankruptcy system. A number of these proposals would represent dramatic and systematic government involvement in the U.S. bankruptcy system. Such involvement by the government in the bankruptcy system is a topic that is largely ignored in the literature on bankruptcy. Where it is observed, it is generally criticized. Among other things, it sits uneasily with dominant theories of bankruptcy that assume the bankruptcy system should be driven by the interests of direct stakeholders in particular cases. This Article argues that involvement or influence by government actors in the bankruptcy system is, in fact, broadly consistent with bankruptcy theory and with the structural relationship between bankruptcy law and other legal and regulatory components of the state. This relationship is subject to some basic ordering principles. Bankruptcy law constrains and adjusts other legal regimes to some extent, but it generally incorporates non-bankruptcy law and yields to government’s regulatory actions. These ordering principles reasonably extend to ad hoc government actions or “activism” in the bankruptcy system. In other words, government actors do not contravene bankruptcy policy when they employ the system to advance non-bankruptcy policies within their authority, even when doing so enables the government to take actions and achieve goals that it could not outside of the system. In some circumstances, however, the regulatory policies or concerns motivating government involvement in the bankruptcy system may be too diffuse or attenuated to justify the extent of its intervention, especially if the effect is to discourage use of the bankruptcy system.
This Article develops these claims by focusing in particular on the relationship between bankruptcy and financial regulation. Bankruptcy is part of the architecture of financial markets in a modern economy, and the influence of financial regulators on the bankruptcy system should be viewed as the product of overlapping regulatory functions, which require a logic of ordering. Such regulatory influence generally operates in the deep background, yet macro-prudential and systemic concerns will sometimes require more direct government intervention and may override the efficiency concerns or stakes of a particular bankruptcy case. This Article describes three episodes of regulatory intervention in the bankruptcy system: (1) “regulatory bankruptcy” during the 2008–09 financial crisis; (2) the efforts by the Reserve Bank of India to force some large commercial firms into India’s new insolvency system; and (3) the Chrysler bankruptcy. The ordering principles advanced in this Article generally justify the government involvement in these cases and, to some extent, in the COVID-era proposals as well. However, the degree of regulatory involvement in the bankruptcy system envisioned by some of these recent proposals may be disproportionate to, or attenuated from, their underlying regulatory goals. If so, they may fall beyond the scope of justified government involvement in the bankruptcy system
Extrajudicial Killings in Bangladesh: Exploring the Phenomenon of Human Rights Violations As a Means of Maintaing Power
Get PDFWhen the South Asian nation of Bangladesh emerged as an independent nation on December 16, 1971, the founding fathers sought to establish a liberal democracy that would uphold the rule of law and the fundamental human rights of individuals. To this end, they incorporated extensive guarantees, including safeguarding the enforcement of an impressive eighteen fundamental rights, in the Constitution of Bangladesh of 1972. However, this Article will demonstrate that after almost fifty years of independence, the promise of a liberal democracy has remained elusive in Bangladesh due to the frequent violation of human rights through extrajudicial killings as a convenient means of maintaining power. Although successive governments have resorted to extrajudicial killings, the current government of the Bangladesh Awami League, which has ruled the nation uninterruptedly for the past twelve and a half years, has gone further than all previous governments in resorting to such killings to suppress any threat to its aspiration of perpetuating power. The regime’s contempt for the human rights of individuals is further evident from the fact that even during the COVID-19 pandemic, it has not shied away from resorting to extrajudicial killings to put down its adversaries. This Article will put forward recommendations for ensuring the realization of the elusive promise of a liberal democracy on which the nation was founded
Human Rights, Constitutional Rights, and Judicial Review: Comparing and Assessing Michael Perry\u27s Early and Contemporary Arguments
Get PDFThe Big Ban(g) Theory
Get PDFThe term “Big Tech” is referred to: Amazon, Apple, Facebook (Meta), Google and Microsoft. These companies are the five largest multinational online service or computer hardware and software companies and have the top position in the stock market by market share. Data indicated that these five firms have made over 700 acquisitions from 1987 to 2019. (Google 32%, Microsoft 31%, Apple 15%, Amazon 11%, and Facebook 11%). After 2001, The DOJ and FTC began to use NAICS codes to report HSR (Hart-Scott-Rodino) transactions. The code name is NAICS 518 for data processing, hosting, and related services (mainly including Google, Amazon, Facebook). Over 200 transactions were reportable between 2001 and 2017 and only one of which was challenged by the DOJ in federal district court – the Google/ITA case. This rate, as a percentage of transactions cleared to the agencies over the period, is about 3%, which is significantly lower than that of 13% across all sectors.
All this data raises controversy in relation to the effects of the dominance and overpowering of the Big Tech to innovation and market entry; incentives to compete on price and nonprice dimensions; and the potential for AI-driven biased pricing and other theories of harms. In realizing this growing power of the Big Tech and underenforcement in regulations, US Senator Josh Hawley proposed the bill of “Bust Up Big Tech Act” on April 19th 2021, which will “crack down on mergers and acquisitions by mega-corporations and strengthen antitrust enforcement to pursue the breakup of dominant, anticompetitive firms,” according to him.
In section 2, this article examines the US regulations on both horizontal and non-horizontal mergers and the evolution of the law in the past 60 years. In section 3, the article looks at how the law interacts with the Big Tech merger and acquisition activities and introduce the shortcomings to the existing system. In section 4, the article in-depth analyses the theories of harm and what would happen if an authority banned all the mergers and acquisitions for the Big Tech. In section 5, the article briefly expresses the authors’ view regarding to what extend the authors agree with “The Big Ban(g) Theory.
Debt, Control, and Collusion
Get PDFPartial ownership of stock in multiple competing firms is an important topic in both corporate and antitrust law. Until now, the discussion has focused on ownership. This Article shifts the discussion from a focus on common ownership to a focus on common control. No prior work has addressed the role of debt-related corporate control in corporate governance and competition, but debt-control-based governance is a critical part of the corporate landscape. Further, various creditors can exert control over more than one company in the same industry without any ownership. These insights have been addressed in the corporate finance and bankruptcy law literatures, but they have not yet penetrated antitrust debates or policy. Applying such insights, this Article suggests that a fundamental change in antitrust policy is necessary to police against debt-control-based collusion
Bivens and Ward---Constitutional Remedies in the United States and Canada
Get PDFDespite the killing of an unarmed fifteen-year-old boy by a federal border patrol agent, the U.S. Supreme Court in Hernandez v. Mesa refused to allow a Bivens cause of action to proceed and left an egregious violation of constitutional rights unremedied. The U.S. Supreme Court’s rulings in Ziglar v. Abbasi and Hernandez v. Mesa further limited the Bivens cause of action in such a way that makes successfully suing federal officials for constitutional violations practically impossible. The Supreme Court frequently denies Bivens claims due to the purported availability of alternative remedies. However, the Court’s recent jurisprudence makes clear that these alternative remedies do not need to be as effective as a remedy under Bivens, nor do they even need to be certain to exist. Thus, the supposed availability of alternative remedies in the United States often leaves individuals with no remedy at all. On the other hand, the Supreme Court of Canada’s approach to constitutional remedies, outlined in Vancouver (City) v. Ward, functionally analyzes the availability and adequacy of alternative remedies, which increases a plaintiff’s chance of obtaining effective relief. The U.S. Supreme Court should adopt portions of Canada’s functional approach and consider the absence of alternative remedies an important factor in deciding to extend a Bivens claim to a new context. This will enhance the protection of constitutional rights in the United States and prevent individuals from being left without a remedy after their rights have been violated by a federal official
A Solution for the Third-Party Doctrine in a Time of Data Sharing, Contact Tracing, and Mass Surveillance
Get PDFToday, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of the reasonable expectation of privacy standard developed in Katz v. United States.
There is a solution. A close reading of Katz’s logic can reorient third-party analysis from a per se rule to a tailored test of the knowledge of the sharer and the nature of the recipient, asking whether the sharer (1) knowingly exposed information (2) to the public. This interpretation allows the Fourth Amendment to better evolve with changing technology, such that the exception no longer risks swallowing the rule
Sweet Old-Fashioned Notions: Legal Engagement With Anthropological Scholarship
Get PDFThe study of law, we are told often and generally with approval, has become a potluck to which everyone is invited. Over there stand the historians bearing their retrospectively informed insights; across from them are the experimental psychologists hoisting their pleasingly social-scientific brew; in the corner lurk philosophers chatting calmly over some first principles. The center of the room is quite naturally taken up by the economists, laughing exuberantly over their spread of nifty models, intimidating formulae, and soothing predictions. In the midst of this lively affair, circulating among the invitees like a dutiful host, rejecting nothing, sampling everything, and exulting, not very slyly, in the dazzling array of theories and methodologies brought together for its delectation, is law. Law borrows from everyone in this delightful scene, it accommodates everyone, and if some of its esteemed guests seem more esteemed than others that is only because their offerings were seasoned to taste.
Why, then, is anthropology so conspicuously absent from the party?
The rest of this introductory Essay provides context for one half of an effort, now several years in the making, to think through the intersection of law and anthropology with others who, by inclination or by necessity, would like there to be one. It is one-half of that effort because it is addressed to law folk; its companion-appearing elsewhere-is addressed to anthropologists. That these conversations have occurred at all is exciting. That they appear separately is telling
Constitutional Rights as Human Rights: Freedom of Speech, Equal Protection, and the Right of Privacy
Get PDFMuch of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:
1. The constitutional right to freedom of speech is closely related to the human right to intellectual freedom: The former right protects against the same kinds of government action that the latter right protects against.
2. The constitutional right to equal protection is closely related to the human right to moral equality: The former right protects against the same kinds of government action that the latter right protects against.
3. The constitutional right of privacy - aptly described by legal scholar Reva Siegel as one of the most fiercely contested rights in the modern constitutional canon - is closely related to the human right to moral freedom: The former right is best understood as a version of the latter right and, so understood, is legitimately regarded as a constitutional right