Volume 90.1
January
2023

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Volume 90.1
Sponsor Control: A New Paradigm for Corporate Reorganization
Vincent S.J. Buccola
Associate Professor, The Wharton School of the University of Pennsylvania.

For their helpful comments on previous drafts, I thank Alex Aleszczyk, Ken Ayotte, Douglas Baird, Ralph Brubaker, Allison Buccola, Jared Ellias, Josh Feltman, Elisabeth de Fontenay, Michael Francus, Chris Hampson, Sujeet Indap, Adam Levitin, Lynn LoPucki, Stephen Lubben, Michael Ohlrogge, Billy Organek, Samir Parikh, Sarah Paterson, John Pottow, Bob Rasmussen, Harrison Shure, Mike Simkovic, David Skeel, Richard Squire, George Triantis, Kate Waldock, @HalCapLLC, and participants in the Corporate Restructuring and Insolvency Seminar and at workshops at Northwestern, the University of Southern California, and Wharton.

Bankruptcy scholars have long organized their field around a stylized story, a paradigm, of lender control. When lenders extend credit, the story goes, they insist on the borrower agreeing to strict covenants and granting blanket liens on its assets; then, if the borrower later encounters financial distress, they use their bargained-for rights as prods to steer the company toward a resolution favorable to themselves, whether or not that resolution is value maximizing for the investors as a group. As fruitful as the lender-control heuristic has been, however, it no longer corresponds to reality.

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Volume 90.1
Privacy and/or Trade
Anupam Chander
Scott K. Ginsburg Professor of Law and Technology, Georgetown University.
Paul Schwartz
Jefferson E. Peyser Professor, U.C. Berkeley School of Law.

For their helpful suggestions on previous drafts, we would like to thank Kathleen Claussen, Jill Goldenziel, Sylvia Lu, Indra Spieker, Lior Strahilevitz, and David Vladeck. We are grateful to a dream team of research assistants at Berkeley and Georgetown: Shayanna Ahuja, María José Badillo, Ryan Campbell, Robert Fairbanks, Gabriela Gabbidon, Saabhir Gill, Kiana Harkema, Joey Kingerski, Leo Koepp, Meet Mehta, Emma Neukrug, Sudipt Parth, Rishi Ray, Sophia Wallach, and Andy Zachrich. For superb editing, we thank Ian Howard and his colleagues on the University of Chicago Law Review. This Article is dedicated to the memory of Professor Joel R. Reidenberg, a great figure in privacy law and a cherished friend.

International privacy and trade law developed together but are now engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power trade today.

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Volume 90.1
The Independent State Legislature Theory, Federal Courts, and State Law
Carolyn Shapiro
Professor of Law and Co-Director, Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law.

This Article has benefited from the comments of Maggie Blackhawk, Nicholas Stephanopoulos, Alan Erbsen, Mark Krass, Gerard Magliocca, Richard Briffault, Joshua Douglas, Ethan Herenstein, Hayward Smith, Christopher Schmidt, Mark Rosen, Harold Krent, Stephen Heyman, and from the suggestions of additional participants at the 2021 Constitutional Law Colloquium at George Washington University and at the 2022 National Conference of Constitutional Law Scholars. Thanks are also due to Adam Bonin and Joshua Karsh. Taylor Iaculla provided excellent research assistance.

During the litigation surrounding the 2020 election, the independent state legislature theory (ISLT) emerged as a potentially crucial factor in the presidential election. The ISLT rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Proponents of the ISLT, including Supreme Court Justices, assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections; that state courts’ statutory interpretations of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts; and/or that delegations of decisionmaking authority to nonlegislative bodies may be limited, albeit in unspecified ways. 

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Essay
Volume 90.1
Stakeholderism Silo Busting
Aneil Kovvali
Associate Professor, Indiana University Maurer School of Law.

I thank Douglas Baird, Sarah Light, Joshua Macey, and Elizabeth Pollman for helpful comments and conversations.

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. 

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