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Bankruptcy Process for Sale
No full textVol. 39:1 2022The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s
DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process sale.” We model two situations where process sales raise bankruptcy policy concerns: (1) when a senior creditor leverages the debtor’s need for financing to lock in a preferred outcome at the outset of the case (“plan protection”); and (2) when a senior creditor steers the case to protect its claim against litigation (“entitlement protection”). We show that both scenarios can lead to bankruptcy outcomes that fail to maximize the value of the firm for creditors as a whole. We study a new dataset that uses the text of 1.5 million court documents to identify creditor conflict over process sales, and our analysis
offers evidence consistent with the predictions of the model
ON WRONGS AND JUSTIFICATIONS
No full textFelix S. Cohen Prize
S. Shapiro, K. Ramakrishnan
Paper on subject relating to legal philosophy.In this paper, my goal is to shed light on a recent debate regarding the nature of justifications and wrongs in criminal law. As we delve deeper into the topic, we will see that wrongs and justifications are conceptually intertwined, and it is, therefore, crucial to have a clear understanding of their nature. The theoretical disputes and perplexities surrounding this topic can be attributed, in part, to an improper conception of moral wrongs. However, once we have a better understanding of this phenomenon, we will be able to account for many of the issues associated with the nature of justifications in criminal law.
The distinction between offence denials and justifications is not morally neutral. The former assumes that there are no decisive moral reasons against performing an action. In short, they deny the existence of an offense altogether. Justifications, on the other hand, acknowledge the existence of an offense but deny that the conduct is wrong all things considered. To have a defense is to concede the existence of a pro tanto wrong or a provisional complaint, but to reject the claim that the conduct is wrongful in the particular context in question
Commentary on Claire Priest’s Credit Nation: Property Laws and Institutions in Early America
No full textVol. 33:2It is such an honor to have the opportunity to engage with Claire Priest’s Credit Nation: Property Laws and Institutions in Early America. Priest’s articles have long been on my graduate students’ lists for comprehensive exams, and they are often cited as among the most influential of their readings. This past spring, when a student was asked in her oral exam to come up with turning points in the colonial era, she immediately said 1732. Why, asked the questioner, a bit confused, expecting the usual dates associated with wars or political events or even the dates associated with the development of slavery. In fact, the questioner followed up with one of those dates: Why not 1619? The student replied with remarkable confidence: 1732 was the date of the Debt Recovery Act, which made real estate and enslaved property available to satisfy creditors’ claims. That, in her mind, changed everything.
Credit Nation explains how the Debt Recovery Act and a host of other legal measures did just that: changed everything, by building the availability of credit into the legal order and, thereby, fueling capitalist development. The implications upend basic assumptions in the scholarship of early America. They shift the chronology of economic change from the nineteenth century to the eighteenth century. They shift the location of legal innovation, bringing Virginia and its agricultural economy into focus alongside New York and its commercial economy. They shift the means of legal change, from appellate decisions to statutes and from centralized states to local governments, which developed in the way that they did to keep all the necessary records. And they shift the targets of law, from the property usually associated with industrial development to that associated with the agricultural economy, in the form of real estate and enslaved people
Sexual Dignity and Rape Law
No full textVol. 33.2:1Dignity is a famously contested concept, suggesting its deployment as a legal principle should be closely scrutinized. This Article sets out a functional and contextual analysis of dignity as an organizing principle underpinning rape law, which I term “sexual dignity.” Based on sexual violence theory, I trace the “democratization” of sexual dignity over time, as dignity and attendant rights of autonomy and equality have gradually extended from man to the (qualified) woman to women as a group, and identify an emerging contemporary feminist consensus on the meaning of sexual dignity. This framework is then applied to a critical review of how judges across common law jurisdictions understand and use dignity in decisions on rape. The caselaw of
sexual dignity illustrates that dignity is a usefully capacious concept for exploring and condemning the multiplicity of rape’s harms and wrongs. However, uncritical engagement with sexual dignity can be harmful, with implications both for rape law and for the regulation of sexual behaviour generally. As such, I argue that robust and reflective engagement with sexual dignity is both necessary and productive
Climate Change Cosmopolitanism
No full textVol. 39 Issue 2Do foreign lives matter? When? How much? If one nation damages another, what are its obligations, as a matter of law and policy? These questions can be approached and understood in diverse ways, but they are concretized in debates over the “social cost of carbon,” which is sometimes described as the linchpin of national climate policy. The social cost of carbon, meant to capture the damage done by a ton of carbon emissions, helps to determine the stringency of regulations in many domains, including emissions limits on motor vehicles and on stationary sources. In determining the social cost of carbon, agencies
must decide whether to use the global number (as chosen by Presidents Barack Obama and Joe Biden) or instead the domestic number (as chosen by President Donald Trump). Use of the global number should be seen as a form of climate change cosmopolitanism, whether the grounding is moral, strategic, or otherwise. Within the constraints of governing statutes, there are four central arguments in favor of using the global figure. (1) The epistemic argument: experts do not know a great deal about the purely domestic harms from climate change, which makes it impossible to generate a purely domestic number. (2)
The interconnectedness argument: harms done to U.S. citizens by domestic emissions are not limited to those directly brought about by the incremental increase in temperatures within the territorial boundaries of the United States; they include an assortment of harms to U.S. citizens living abroad and harms to U.S. citizens and interests that come as a result of the cascading effects of harm done to foreigners (including governments, companies, and individuals), which are ultimately felt by U.S. citizens or within the United States. (3) The moral cosmopolitan argument: in deciding on the scope of its regulations, the United
States has a moral obligation to take account of the harms it does to non-Americans. (4) The reciprocity argument: if all nations used a domestic figure, all nations would lose; a successful approach to the climate problem requires nations to treat greenhouse gas emissions as a global, and not merely domestic, externality. Neither the epistemic argument nor the incompleteness argument justifies the choice of the global number
The Law School as a White Space
No full textIn this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it is past time to acknowledge how law schools function as “white spaces.” For starters, there are the numbers. There is a reason why just a few years ago, The Washington Post ran a headline describing law as “the least diverse profession in the nation.” But the argument goes beyond numbers. This Essay argues that law schools—even law schools at HBCUs— function as white spaces. They are white spaces in what they teach, in how they teach, and even in their architecture.
The end goal of the essay, however, is not solely to describe law schools as white spaces—nor is the goal simply to challenge law schools to do better. Given that this country is slated to tip from being majority white to majority minority in the year 2044, it should already be a given that law schools must step up. Rather, the end goal is to check, and even disturb, the very foundations upon which most law schools are built. It is to reexamine the walls and the insulation that allow some students to thrive, while keeping others out. It is to dare law schools—to dare all of us—to imagine a new construction, an entirely new law school. In short, the end goal of this Essay is to imagine the law school no longer as a white space (in terms of demographics, or what is taught, or how it is taught), but as a white space (as in a blank page, at once empty and full of possibilities). What would it mean to rethink, from the bottom up, what is taught, how it is taught, and to what end? More broadly, what would it mean to create a law school that is cosmopolitan and then some, a place where intellectual curiosity thrives, where change and challenge are celebrated, where education itself is a practice of freedom, and perhaps most importantly, where there is no need to tout inclusivity, because everyone already belongs
Peter Shane and the Rule of Law
No full textThe article discusses law professor Peter Shane's preoccupation with understanding what the rule of law means and with threats to the maintenance of the rule of law in the legal system in the U.S. Topics covered include legal argument as another means for pursuing partisan and ideological goals, difficulties of conceptualizing the rule of law, and the role that law plays in shaping administrative action
HAS THE ALIEN TORT STATUTE MADE A DIFFERENCE?: A HISTORICAL, EMPIRICAL, AND NORMATIVE ASSESSMENT
No full textThe Alien Tort Statute (ATS), which allows aliens to file civil suit in US. courts for etiolation of the law of nations, has been considered by many to be one of the most important legal tools for human rights litigation in the United States and perhaps even the world. The effectiveness of this tool, however, has been gradually eroded in a series of Supreme Court decisions. The statute's latest trip to the Supreme Court came in October Term 2020 in a pair of cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, brought by former enslaved children trafficked from Mali to Cate d'Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The mivority never reached the issue, holding instead that the plaintiffs sought inappropriately to apply the ATS extraterritorially- a decision that could haue-far-reaching consequences. This Ls an essential moment, then, to step back and assess the ATS. Before deciding how to moveforward, it is necessary to assess where we haue been, what the ATS has achieved, where it has fallen short, and to consider the range of options for human rights victims seekingjustice. To do that, this Article undertakes the most comprehensive empirical study of the ATS to date. Using a database of every single case brought under the ATS in US. federal court that has resulted in a published opinion, this Article provides a detailed picture of ATS litigation from 1789 to the present. This quantitative data is augmented with detailed interviews with participants on both sides Qf the modem cases. The Article arrives at three main conclusions that lead to three sets of recommendations. First, the greatest barrier to ATS suits is the limitation on extratenitorial etlect of the statute. In light of this. Anding, we recommend alternative strategies to provide accountability for human rights violations committed outside the United States. Second, plaintiffs generally do not receive significant material benefits from ATS litigation, but they still benefitfrom the opportunity to be heard and to bring attention to the hanns they haue suffered. Given this finding, we suggest greater attention to options for non-adversarial dispute resolution. Third, the ATS and other existing tools have proven inadequate for reaching corpomte contributions to human rights violations. Hence serious consideration should be given to legislation, including due diligence obligations, aimed directly at this problem
Costs, Confusion, and Climate Change
No full textVol. 39 Issue 2In the United States, the primary tool to value greenhouse gas emissions reductions in cost-benefit analysis is the social cost of carbon (SCC), which is a metric that estimates, in monetary terms, the damages associated with climate change. Recently, some prominent public policy experts and scholars have proposed that a “marginal abatement cost” (MAC) could be used as an
alternative to the SCC. Indeed, some jurisdictions, such as the United Kingdom, have integrated MAC-based approaches into climate policymaking. This Article provides conceptual clarity about these metrics, focusing on how a MAC-based threshold could sensibly be used in climate policy, and explaining why it is not a substitute for the SCC. We relate the current conversation about valuing greenhouse gas emissions to the longstanding debate over the use of prices versus quantities in climate policy formulation and the more generic regulatory question of when it is appropriate to employ cost-benefit analysis versus cost-effectiveness analysis. In addition, we use illustrative hypothetical policy contexts to explain the roles that these tools should play
Myths and Realities of Global Governance
No full textIs more global governance necessary? That was the question posed to me by the organizers of the 2021 Federalist Society Annual
Conference. It struck me when hearing this question that there are often deep misconceptions about the meaning of global governance lurking behind debates over whether there should be “more” or “less” of it. I hope to shine light of some of them today.
Global governance is not one thing, of course. It is a multitude of different international legal arrangements covering an array of activities that states as well as nonstate actors engage in. Yes, there is the United Nations, but that is simply one of many multinational organizations—and perhaps not even the most important of them. Global governance includes well–known organizations such as the International Monetary Fund, the International Criminal Court, and the North Atlantic Treaty Organization, but it also includes lesser–known organizations such as the International Coffee Organization, the Court of Arbitration for Sport, and the Wassenaar Arrangement. These organizations did not emerge of their own accord. Indeed, the greatest misconception that exists about global governance is that international organizations operate at the expense of states. The reality, instead, is that they are created by states to serve specific purposes that states find valuable. They give states a way to achieve ends that they could not achieve on their own—or that they would find much more difficult and expensive to achieve on their own. To illustrate this argument, this essay examines five key topics in global governance—international courts and tribunals, trade, use of force, international human rights, and geopolitical competitition