Bankruptcy scholarship is largely a debate about the comparativemerits of a mandatory regime on one hand and bankruptcy by free design on the other. By the standard account, the current law of corporate reorganization is mandatory. Various rules that cannot be avoided ensure that investors’ actions are limited and they do not exercise their rights against specialized assets in a way that destroys the value of a business as a whole. These...
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The 2008 financial crisis raised puzzles important for understanding how the capital market prices common stocks and in turn, for the intersection between law and finance. During the crisis, there was a dramatic five-fold spike, across all industries, in “idiosyncratic risk”—the volatility of individual-firm share prices after adjustment for movements in the market as a whole.
This phenomenon is not limited to the most recent financial...
It is often said that the legal touchstone of agency independence is whether agency heads are removable at will or only for cause. Yet this condition is neither necessary nor sufficient for operational independence. Many important agencies whose heads lack for-cause tenure protection are conventionally treated as independent, while other agencies whose heads enjoy for-cause tenure protection are by all accounts thoroughly dependent upon organized...
Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse—think of “Poor Joshua!”— but existing...
This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world, of the duty to comply with it. An individualized defense is much narrower in scope:...
Predatory pricing is a two-step strategy for securing monopoly profits. During the first step—the predation stage—a firm charges a price below its costs in the hope of driving its competitors out of the market by forcing them to sell at a loss as well. If it succeeds, the firm can proceed to the second step—the recoupment stage. After it has the market to itself, the now-dominant firm charges a monopoly price in an effort to recoup the...
Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that property rights long have offered owners of real property.
As Reich himself predicted, procedural rights have proven largely ineffectual, especially for low-income people....
In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entity centric, therefore,...
When governmental actors offend federal rights, victims are often left with no one to hold accountable in federal courts. This Article explores this accountability gap in cases involving local officials’ violations of the Constitution. Local government, after all, is the layer of government that is often closest to our daily lives, from law enforcement to education. This Article argues that as a descriptive matter, contrary...
Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal...