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The Short Circuit: Privatized Organ Allocation Policymaking Violates Fundamental Fairness
Get PDFThe successful development of organ transplantation brought with it a new challenge—how to share the scarce organs that are donated. To resolve this challenge, Congress contracted out to the United Network for Organ Sharing, a non-profit corporation composed of transplantation stakeholders, the responsibility of developing, implementing, and administering organ allocation policies under the oversight of the Department of Health and Human Services. However, increased scrutiny due to ongoing litigation between transplantation stakeholders has called into question the accountability and objectivity of this quasi-governmental agency. This Comment argues that the delegation of organ allocation policymaking to the United Network for Organ Sharing violates the Fifth Amendment Due Process Clause. When private actors are delegated regulatory authority that rises to state action, the protections of the U.S. Constitution apply. The Supreme Court has further recognized that due process is violated where self-interested state actors are delegated regulatory authority without sufficient agency oversight. This Comment argues that (1) the United Network for Organ Sharing should be considered a state actor subject to constitutional constraints, (2) the individual members of its Board of Directors are self-interested, and (3) the Department of Health and Human Services does not have sufficient oversight over the United Network for Organ Sharing to mitigate potential self-interest. To ensure fundamental fairness, this Comment proposes relegating the United Network for Organ Sharing to an advisory committee for the purposes of developing organ allocation policies. Such a proposal empowers the Secretary of the Department of Health and Human Services to maintain substantive control of organ allocation policymaking, thus satisfying the due process inquiry. This proposal also balances mitigation of perceived conflicts of interest and maintenance of stakeholder participation in policymaking
Bankruptcy Shopping: Domestic Venue Races and Global Forum Wars
Get PDFThis Article proposes reforms to bankruptcy law’s venue rules. These reforms would expand venue choice, reduce opportunistic venue shopping, and account for the rise of global forum shopping. To date, the leading proposals to reform venue selection rules for bankruptcy cases have ignored simpler alternatives that can reduce opportunistic misbehavior while preserving beneficial choice. Moreover, those proposals have focused exclusively on restricting a debtor’s choice among venues within the United States while ignoring the increasing availability and convenience of foreign courts as forums for distressed corporate debtors seeking to initiate insolvency proceedings. In this way, the proposals on the table run the risk of failing at their primary goal and at the same time exacerbating international forum shopping and escalating a global forum war. To remedy this, we suggest alternative reforms that account for the availability of foreign forums, reduce opportunities for harmful venue shopping, and preserve the benefits of choice. Rather than restrict a debtor’s ability to select a domestic venue, reforms should (1) allow firms to make an ex ante commitment to a procedure for choosing a bankruptcy district, and (2) resolve inconsistencies in substantive bankruptcy law across venues and forums. These reforms would retain beneficial choice while reducing opportunistic shopping of both domestic venues and foreign forums. The precommitment mechanism we propose is preferable to existing proposals even for parties that cannot shop globally, but the availability of foreign forums makes the case even stronger
Chapter 11 Under Duress
Get PDFIn this Article, the Business Bankruptcy Project (BBP) reports data from an empirical study of two samples of chapter 11 bankruptcies in the federal courts in Wilmington and Manhattan, two districts notably important in modern bankruptcy practice. While our study includes a number of interesting and important facts about the chapter 11 process in 2014 and 2018, this brief interim report centers around the loss of value arising from control by pre-bankruptcy lenders and the implications that arise from that fact. Building on other recent studies, it highlights the fact that a control transaction in many chapter 11 cases has taken place outside of bankruptcy, with little effective notice and no judicial scrutin
Abusing the Judicial Power: A Geographic Approach to Address Nationwide Injunctions and State Standing
Get PDFThe judicial branch’s primary function in a tripartite system of government is to institute checks and balances on the executive and legislative branches by interpreting and applying the law. This command is limited under Article III of the Constitution, which gives federal courts the power to decide only a limited set of cases and controversies. Article III judges are appointed and confirmed with life tenure. This system of life appointments evidences the Framers’ intent to preserve the federal judiciary as a body of insulated, apolitical decision-makers as opposed to a third political arm of the federal government. For over two centuries, the nation’s judicial system has been a revered institution of law and order, maintaining the public’s confidence in the administration of justice. The recent and increasing use of nationwide injunctions, which implement expansive theories of state standing and equitable power, puts this notion in jeopardy. In the context of nationwide injunctions, state attorneys general are forum shopping to bring suits to the most sympathetic ears. In doing so, state attorneys general have asserted attenuated forms of standing to have their cases heard. Because these state actors are specifically seeking out the most favorable district court, they are in a greater position to find a court willing to expand the limits of standing and equity to hear their case. The idea that an injunction should be a primary means of seeking redress is a relatively new development advanced in a sharply divided political climate. To preserve and protect the role of the judicial branch, some measures must be taken to dissuade state actors and federal courts from abusing the judicial power. This Comment explores how the traditional limitations of standing and equity are being vastly expanded by recent nationwide injunctions. Much of the blame for this expansion rests on individual state attorneys general and sympathetic district judges. In identifying these individuals as the root cause of such expansion, this Comment specifically tailors a solution by advocating for federal legislation that places limitations on district courts hearing cases initiated by state actors seeking nationwide injunctions
Localizing the Green Energy Revolution
Get PDFThe United States is on the verge of a new industrial revolution. Renewable energy could replace more than 60% of our current energy generation infrastructure in fifteen years. This change is critical, yet it risks failure. The renewable generation already built in the United States consists primarily of large-scale projects connected to transmission lines in rural areas. The expansive new generation needed to reduce carbon emissions must also be predominantly large-scale, and rural, for reasons of efficiency. But a revolution that focuses nearly exclusively on “big energy” is likely to encounter obstacles, and it has downsides that could be mitigated with a stronger focus on small-scale energy. Many rural Americans—predominantly Republican—oppose Democratic policies, particularly climate policies. Even avowedly green liberal communities have mounted stiff opposition to renewable energy in some areas. Many landowners—particularly farmers—welcome the income from renewable energy leases, but residents often object to the blinking lights, landscape disruption, unsightly wires, and other impacts of these projects. Beyond facing political opposition, a projected buildout of more than 200,000 miles of new transmission lines to support new large-scale renewable projects threatens to create negative infrastructural path dependence. This could be analogous to the federal highway network expansion of the 1950s, which largely cemented U.S. reliance on cars rather than mass transit and divided communities. We need a nationwide network of new long-distance transmission lines to connect large renewable energy generation to population centers. But small energy projects could replace the need for some of these wires. Policymakers should place greater emphasis on “small” distributed energy in the form of solar and wind generation over or near parking lots, roadways, and buildings; community-scale renewables and microgrids; and energy efficiency projects, such as weatherization of apartment buildings. This effort is likely to be more politically feasible than a revolution focused too heavily on large-scale projects. And when targeted properly, small-scale clean energy can reduce the crushing energy burdens faced by low-income communities, whether rural or urban. For the energy transition to be feasible and less objectionable from a community and present-day environmental perspective, energy policies should also ensure that large-scale renewable generation is built in ways that reduce host community impacts. Renewable or clean energy policies should prioritize projects on polluted or abandoned brownfields, as New York requires; on marginalized farmlands; or offshore. Policies should also require large-scale renewable energy developers to negotiate with host communities and offer benefits—another strategy followed in New York
Presentation of Essays, Part I
No full textPresentation of Essays, Part I
A Path Forward for the Postal ServiceLaura Napoli Coordes, Associate Professor of Law, Sandra Day O’Connor College of Law, Arizona State University
COVID-19 and Disaggregated Sovereign BankruptcyOdette Lienau, Associate Dean for Faculty Research and Intellectual Life; Professor of Law, Cornell Law School
Bankruptcy Shopping: Domestic Venue Races and Global Forum WarsAnthony Casey, Deputy Dean, Donald M. Ephraim Professor of Law and Economics, Faculty Director, The Center on Law and Finance, University of Chicago Law School; andJoshua Macey, Assistant Professor of Law, University of Chicago Law Schoo
Congress\u27s Domain: Appropriations, Time, and Chevron
Get PDFAnnual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.
The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize the time and procedural steps an agency put into an interpretation would tend to favor deference for agency interpretations of permanent appropriations, but not for annual appropriations. Yet this result is upside-down if courts’ goal is to promote accountability and avoid interference with the balance of power between the political branches. Chevron has two core functions, a subdelegation function (it transfers the authority delegated in ambiguities from courts to agencies) and an anti-entrenchment function (it relieves interpretations of the solidifying force of stare decisis). As applied to annual appropriations, both functions respect Congress’s primary role in enforcement through the appropriations cycle; as applied to permanent appropriations, both functions interfere with Congress’s domain
Two Constitutional Rights, Two Constitutional Controversies
Get PDFMy overarching aim in the Article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the Article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom. The two controversies I discuss, each of which implicates the two rights, are among the most divisive constitutional controversies of our time: the controversies concerning, respectively, abortion and same-sex marriage
International Commercial Courts in the United States and Australia: Possible, Probable, Preferable?
Get PDFAs worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a somewhat uneven relationship with international engagements while the other (Australia) is maintaining or increasing its connections to the rest of the world. Although this discrepancy could be used to explain the relative status of the debate about international commercial courts, which is much more advanced in Australia than in the United States, it is also possible that the distinctions between the United States and Australia are motivated by other factors. While neither country appears poised to create an international commercial court at the moment, the current analysis helps identify the types of factors that policy-makers can and should consider when contemplating reforms of this nature
Oral Argument in the Time of COVID: The Chief Justice Plays Calvinball
Get PDFIn this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in person by the current Court and examine whether the Justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices more substantive opportunities to have their questions answered.
This analysis transcends the significance of individual cases. The fact that the Court experimented with telephonic oral argument, the way it did so, and how the practice could be improved are all issues of profound national importance. The new format had the potential to influence the outcome of cases that have broad national significance, to shift norms of equality and transparency in the Court, and more generally to affect judicial legitimacy. If the Court favors certain parties or certain ideological camps by its choice of forum in a time of crisis, then that will undermine not only the Court’s legitimacy but also raise doubts as to whether any of our national institutions have the capacity to adapt to crises