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Dignity Takings in the Criminal Law of Seventeenth-Century England and the Massachusetts Bay Colony
Get PDFWhen does a punishment for crime cross from being a legitimate goal of the state to a dignity taking? From the Norman Conquest until the middle of the eighteenth-century, the Common Law provided that in addition to execution, the property of convicted felons or traitors was forfeited to the crown and their blood corrupted so that their heirs could not inherit. I argue this is a clear instance of dignity takings. The colonists who traveled to Massachusetts Bay wanted a fresh start and so sought to create a model society based on Biblical law. Using around 6,000 criminal cases from 1630 to 1683 this paper argues that a different form of dignity takings ensued. The use of “scarlet letters,” pillorying, whipping, and other public punishment were all designed to single out unworthy members of the community. I push Atuahene’s concept of dignity takings by expanding the idea of a dignity taking to include not only the destruction of real or personal property but also the destruction of peoples’ actual bodies
Infinite Jest: The Otiose Quest for Completeness in Validating Insolvency Judgments
Get PDFUniversalism in cross-border bankruptcies strives to reduce waste, and harmonize restructuring and recoveries. Universalism’s avatar is UNCITRAL’s 1997 Model Law on Cross-Border Insolvencies (Model Law). Underlying the Model Law, however, is an implicit assumption that court orders entered in the proceeding where the debtor’s center of main interests is located will be respected in all other states in which the debtor has assets or operations. That assumption may have been incorrect, as shown by cases such as the United Kingdom’s Rubin v. Eurofinance, S.A.
This Article looks at UNCITRAL’s reaction to Rubin: its new Model Law on Recognition and Enforcement of Insolvency-Related Judgments (Recognition Law). It examines the Recognition Law’s reciprocity provisions, and examines the likely operation of such provisions both practically (by analyzing complex debtor in possession financing orders) and theoretically (by examining theories of translation first discussed by W.V.O. Quine). The Article concludes by expressing deep pessimism that the Recognition Law will solve the perceived problems with Model Law
Vol. 35, No. 3
Get PDFA Primer on the Illinois Education-Based Funding for Student Success Act, by Robert Bloch, A. Lynn Himes, Terry L. Hodges, Mitch Roth, Barbara Erickson, and Jack Vrett
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1105/thumbnail.jp
The Avoidance of Pre-Bankruptcy Transactions: An Economic and Comparative Approach
Get PDFMost insolvency jurisdictions provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. These mechanisms, generally known as claw-back actions or avoidance provisions, may fulfil several economic goals. First, they act as an ex post alignment of incentives between factually insolvent debtors and their creditors, since the latter become the residual claimants of an insolvent firm, but they do not have any control over the debtor’s assets while the company is not yet subject to a bankruptcy procedure. Thus, avoidance powers may prevent or, at least, reverse opportunistic behaviors faced by factually insolvent debtors prior to the commencement of the bankruptcy procedure. Second, these devices may also prevent the creditors’ race to collect when insolvency threatens. Therefore, the existence of avoidance actions may reduce, at an early stage, the “common pool” problem that bankruptcy law seeks to solve. Third, avoidance powers also protect the interests of both the debtor and its creditors when the former is facing financial trouble and some market participants want to take advantages of this situation. Finally, the avoidance of pre-bankruptcy transactions can also be helpful for the early detection of financially distressed debtors, so it may encourage managers to take corrective actions in a timely manner. As a result of these goals, the existence of avoidance powers can create several benefits. However, the use—and even existence—of avoidance actions is not costless. On the one hand, the use of these actions may generate litigation costs. On the other hand, the existence of these mechanisms may harm legal certainty, especially in countries in which it is relatively easy to avoid a transaction, usually because bad faith is not required, the look-back period may be too long, or no financial conditions are required to avoid a transaction. Therefore, insolvency legislators should carefully deal with these costs and benefits in order to make sure that the existence of avoidance powers does not do more harm than good. On the basis of this exercise, this paper analyzes, from a comparative and functional approach, the optimal way to design claw-back actions across jurisdictions
The Impact of RFRA on Employment Discrimination: Will the Hobby Lobby Decision Erode the Purpose of Title VII?
Get PDFSick and Tired of Hearing about the Damn Bathrooms
Get PDFGavin Grimm’s struggle to access restrooms which align with his gender identity brought the plight of transgender students to the fore of national consciousness. With it came scrutiny of the judiciary’s historical failure to understand transgender individuals’ place in the law. The trend in cases like G.G. ex rel. Grimm v. Gloucester County School Board and Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 1 Board of Education is reliance on equality theory and the law of sex stereotyping. And yet sex-stereotyping law does not mesh soundly with equality theory. Equality theory eradicates gendered difference—but the law of sex stereotyping values and proscribes difference and stereotype in equal measure.
This Note argues instead for a synthesized burdens test to accommodate transgender students both in school facilities and in doctrine. In doing so, it harmonizes the doctrinal inconsistency of sex-stereotyping law with the everyday reality of transgender students
Fintech: Antidote to Rent-Seeking?
Get PDFInnovations in financial technology, or Fintech, has been ongoing for decades but has recently begun to accelerate. Some observers have argued that it will soon begin to outstrip the ability of regulators to keep pace. If those predictions are accurate, what would the world look like with a financial sector that cannot be effectively regulated? One possibility—drawn from public choice economics—is that rent-seeking will be inhibited or eliminated. Rent-seeking is the distortion of law and regulation for the benefit of special interests, who expend resources to guarantee those distortions in their favor. Rent-seeking is inefficient and inhibits growth and innovation, yet it continues so long as the government has the power to intervene and play favorites in markets. As innovation accelerates, the power of regulators to effectively interfere will be significantly reduced, making rent-seeking an unprofitable venture and advancing the cause of markets and consumers
