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Elite Bankruptcy
No full text“The influence of bankruptcy lawyers over bankruptcy law seems almost inevitable.” —David Skeel
In Debt’s Dominion, David Skeel wrote that bankruptcy professionals have played a key role in shaping U.S. bankruptcy law. He predicted that these professionals would continue to shape the bankruptcy process long into the future. Today, we can see that Skeel’s prediction has come true. Although Congress has yet to overhaul the Bankruptcy Code, bankruptcy professionals have succeeded in their own form of overhaul by creating what this Essay calls “elite bankruptcy:” a type of bankruptcy accessible only to the rich and powerful. Elite bankruptcy is practiced only in pockets of the country and by a relatively small group of law firms and judges. Elite bankruptcy tackles some of the most complex issues of the day and allows lawyers and judges to exercise their creativity in addressing those issues. Elite bankruptcy has even provided bankruptcy professionals with the opportunity to influence other areas of law. This Essay explores how bankruptcy professionals created elite bankruptcy and analyzes the consequences of elite bankruptcy’s existence. Is elite bankruptcy a successful product of the bankruptcy system’s natural creativity and flexibility, or is it a failure of the system and its guardrails? This Essay seeks to unpack that question and, in doing so, it continues Skeel’s important work in understanding how bankruptcy professionals shape the law
Debt’s Dominion: A New Epilogue
No full textThis Essay, written for the “Who Governs Debt’s Dominion” symposium, looks back on Debt’s Dominion: A History of Bankruptcy Law in America as the twenty-fifth anniversary of the book’s publication nears. The Essay begins, in Part I, by briefly describing how Debt’s Dominion came about. Part II identifies and seeks to explain a striking decline in optimism about American bankruptcy law since Debt’s Dominion was first published. Part III explores a few of the major recent developments in consumer bankruptcy, small business bankruptcy, and large-scale corporate reorganization that I would have analyzed in the book if it were written today. Part IV briefly considers the impact of globalization and concludes the new epilogue
A Zealous Advocate, a Robust Cross: Cross-Examination of Non-Adverse Witnesses by the Guardian ad Litem
No full text“When the lives and fundamental rights of children are at stake, there must be no silent witnesses.”1 — Carol Bellamy
Systemic pressures in child welfare litigation regularly lead guardian ad litem attorneys to default to the positions and recommendations of state social services. In such cases, witnesses called by the state in trials and evidentiary hearings are non-adverse to the guardian ad litem. This dynamic undermines the purposes of cross-examination rules, threatening the procedural interests of the parties involved. This paper will use a procedural due process balancing test to guide its analysis as it proposes three potential solutions: a shift to client-directed representation, allocating additional funding for the guardian ad litem, and establishing clear evidentiary rules. This paper will argue that the most practical option would be to establish a rebuttable presumption in favor of allowing the guardian ad litem to cross-examine witnesses along with factors to guide in determining when the presumption has been rebutted
Cook Martin Poulson, P.C. v. Daniel G. Smith
Full text linkAmended Brief of Appellee On appeal from the Second Judicial Court, Weber County, Honorable Cristina Ortega, District Court No. 22090374
Codetermination’s Moment of Truth: Overseas Workers
Full text linkThe idea that employees of large corporations should be entitled to representation on corporate boards, a concept known as codetermination, is gaining ground. Progressive politicians Elizabeth Warren and Bernie Sanders have proposed codetermination regimes that would allow employees to elect between 40% and 45% of board members. Moreover, an increasing number of corporate law scholars are embracing the idea of giving employees a voice in corporate governance.
However, anyone endorsing codetermination must confront a critical dilemma: whether to limit representation to U.S.-based employees or whether to extend it to overseas workers as well. The question’s practical importance is obvious given that the United States’ largest corporations often rely heavily on overseas workers—employed either directly or via foreign subsidiaries. Nonetheless, scholars discussing pro-codetermination reforms in the United States have so far ignored this issue.
This Article fills that gap. Drawing on doctrinal, economic, philosophical, and comparative arguments, this Article shows that there is no simple answer to the issue of overseas workers. Including overseas workers of U.S. companies in a future codetermination regime would enhance some of codetermination’s key benefits but also exacerbate many of its costs. Crucially, since at least some of the relevant costs and benefits are incommensurable, the “optimal” solution depends on one’s normative priors. This Article identifies and analyzes the costs and benefits of including overseas workers, clarifies the normative and empirical assumptions involved, and shows the tradeoffs associated with different policy approaches. It thereby provides a transparent analytical framework to inform future policy decisions
Artificial Intelligence, Autonomous Creation, and the Future Path of Copyright Law
Full text linkMost literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic and technological future. This Article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentivebased. The Article then discusses a third line of arguments— harmonization-based arguments—and identifies select instances in which Congress matched the protection offered by other jurisdictions or declined to do so. This Article further shows that global copyright law developments have slowly diverged in the AI space. In view of these growing divergences, U.S. legislators and policymakers are now confronted with a key policy choice at the intersection of copyright and AI: should the United States retain existing approaches, follow other jurisdictions, or work with these jurisdictions to develop harmonized AI-related international copyright standards? To inform the future debate on copyright and AI, the second half of this Article highlights the different areas in which substantial copyright law and policy reform may emerge in the AI space. It further discusses four options the United States can take to shape the future path of copyright law: (1) international treaty negotiations; (2) soft law instruments; (3) a global multi-stakeholder dialogue; and (4) choice-of-law principles
Clark Memorandum: Spring 2025
Full text linkPrimary and Professional Identity Never Only Two Sides In Defense of Zion and Her People The Pursuit of Happinesshttps://digitalcommons.law.byu.edu/clarkmemorandum/1076/thumbnail.jp