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Hallows Lecture: Resorting to Courts or to Community Conversations? Article III Standing as the Guardian of Free Speech and Democratic Self-Governance
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The Gift of Exit Financing
No full textAggressive liability management exercises have spilled over into bankruptcy court and exit financing is often the prize in the center of the arena. Debtors no longer rely upon gifting, the traditional strategy for buying plan support. Instead, they can replicate gifting’s benefits in a more defensible package by funneling discounted subscription rights to chosen constituencies as part of exit financing.
Recognizing exit financing’s distortive power, courts responded by evaluating the quality of negotiations and reviewing precedent transactions. Meanwhile, commentators suggest heightened monitoring and informal guardrails. All of these approaches ignore the shortcomings of judicial valuation. Market testing is the only way to disaggregate control of the bankruptcy case from the exit financing terms. This Article: (i) explains exit financing’s proliferation as a symptom of gifting’s demise and an outgrowth of liability management exercises, (ii) defines when exit financings violate the Bankruptcy Code and Supreme Court precedent, and (iii) crafts a framework for identifying forbidden exit financing gifts.
Exit financing is the new front in bankruptcy’s forever-war with gifting. Unlike gifting, however, exit financing often provides benefits beyond buying approval for the proposed plan. The proceeds can fund payments required for the debtor to emerge from bankruptcy, while consolidated equity ownership can improve corporate governance. Although proponents trumpet these attributes, exit financing also provides opportunities for gamesmanship akin to gifting. Sophisticated insiders and lender allies leverage their control of the plan process to obtain sweetheart exit financing deals. The Supreme Court’s assessments of new value contributions, a subspecies of exit financing, equip bankruptcy courts with the tools for unmasking exit financing giveaways. Pervasive control can only be separated from the exit financing terms through market testing. Fundamentally, exit financing should be conducted akin to whole-firm asset sales, through market-tested processes
Church Autonomy, Textualism, and Originalism: SCOTUS’’s Use of History to Give Definition to Church Autonomy Doctrine
No full textChurch autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case Watson v. Jones, holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the theory of church autonomy took on its most fully developed form as a constitutional immunity from government regulation where it “interferes with the internal governance of the church.”
While the Supreme Court’s general language concerning the scope of this immunity provides helpful starting points, more systemization is needed to solve the inevitable disputes over fine points and close cases. The place to begin is to identify the full subject-matter range of the Court’s caselaw. In such a survey, church autonomy sets apart five individual domains: the resolution of religious questions or disputes; a church’s choice of polity; the administration of rituals and access to sacred rooms; the terms of employment of clergy and other ministers; and the admission, discipline, and dismissal of church members.
The Hosanna-Tabor Court went on to hold that further refinements concerning the package of lawsuits that fall into one of these zones of church autonomy are to be found by reference to the nation’s founding. In following this interpretive rule, the scope of church autonomy is defined by events where the founders spurned federal authority by refusing to become engaged with the internal operations of a church. This makes sense because all thirteen states in rebellion had been British colonies, and the Church of England was the archetypical religious establishment. As a loyal arm of the Crown, the Church of England’s establishmentarian model was widely disdained by American patriots.
The final part of this Article follows the interpretive rule in Hosanna-Tabor by cataloguing events in which prominent individuals, in their roles as continental and later federal officials, declined to exercise authority in circumstances that defined the domains of church autonomy. These events, many little known, include a request by New York delegates to have the Continental Congress alter the Anglican Book of Common Prayer; a French proposal forwarded to the Confederation Congress to sanction a Catholic bishopric in America; a request—later waylaid—to that same Congress to approve the opening of a Catholic seminary; and multiple refusals by the Jefferson Administration to get involved in ecclesial appointments and other quarrels internal to the Catholic Church in the Louisiana Territory. These examples and others give historical underwriting to church autonomy theory as grounded in the actions of federal officials in the early republic
Leveraging the History and Tradition Framework in Support of Transgender Americans’ Fundamental Right to Choose a Name
No full textTransgender people are facing waves of new legislation limiting their right to exist. However, there is an enormous amount of preexisting state laws which limit transgender people’s right to choose a gender affirming name on their own terms. Many current state laws severely restrict the ability of transgender people with prior felony convictions to change their name. These laws limit the ability of people with felony convictions from changing their name: based on the offense, pursuant a time limit, or force transgender people to out themselves. In this note I argue that these state-level laws place an unconstitutional barrier between transgender people and their right to name themselves. This harms the ability of transgender people to gain access to housing and employment and only increases the preexisting risks of being trans in America. This note aims to demonstrate how the framework for establishing due process rights as articulated in Dobbs v. Jackson Women\u27s Health Org. by the United States Supreme Court might be leveraged to support transgender people who have been convicted of felonies. Under the history and traditions construction solidified by the court in Dobbs, individuals have a due process right to choose their name and laws that limit that right for people convicted of felonies unconstitutionally violate the due process rights of the citizens they impact. These laws vary in their requirements, and this article dives both into those laws and the history of regulations surrounding name changes in American history. This note contends that the right to choose one’s name is deeply rooted in America’s history and traditions and therefore these laws place unconstitutional restrictions upon Americans and their constitutional right to change their name
Climbing the Family Tree to Solve Crime: The Statutory Regulation of Investigative Genetic Genealogy in Wisconsin
No full textInvestigative Genetic Genealogy ( IGG ) has emerged as a groundbreaking
tool that law enforcement agencies across the United States
are using to solve their most notorious criminal cases. IGG has led to
remarkable outcomes, such as identifying unknown victims, solving
decades-old violent crimes, and exonerating the innocent. While IGG
has transformed criminal investigations for the better, the tool has
also sparked concerns with the public regarding its haphazard regulation
and its constitutional implications. Despite the tool being
widely used by law enforcement, it remains relatively unregulated,
which has raised concerns about potential misuse, as well as a lack
of transparency and accountability. While the U.S. Department of
Justice\u27s interim policy and Wisconsin\u27s adoption of these guidelines
provide some direction, significant gaps remain in law enforcement’s
use of IGG. This comment argues that Wisconsin should codify IGG
practices into state law to ensure its responsible and transparent use.
By enacting IGG legislation, Wisconsin can establish clear protocol
for law enforcement, address legal ambiguities regarding IGG, enhance
public trust, and ensure continued access to the tool. Analyzing
IGG legislation from other states, such as Utah, Montana, and
Maryland, this comment advocates for a balanced approach to IGG
regulation, promoting it as an effective crime-solving tool while also
safeguarding the public’s rights