Volume 90.3
May
2023

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Volume 90.3
The Uncertain Judge
Courtney M. Cox
Associate Professor of Law, Fordham University School of Law. D.Phil., University of Oxford; J.D., University of Chicago Law School.

I owe a particular debt of gratitude to David Strauss for his engagement with this project. For generous comments and conversations, I also thank Atinuke Adediran, Aditi Bagchi, Olivia Bailey, Shyamkrishna Balganesh, Pamela Bookman, Andrew Botterell, John Broome, Ruth Chang, Mala Chatterjee, Bruce Cox, Nestor Davidson, Janet Freilich, Caroline Gentile, Abner Greene, Daniel Hemel, Zach Huffman, Clare Huntington, Felipe Jiménez, Brian Lee, Youngjae Lee, Ethan Leib, Brian Leiter, Seth Mayer, Dan Priel, Marcela Prieto, Richard Re, Pamela Samuelson, Steven Schaus, Sepehr Shahshahani, Jeremy Sheff, Seana Shiffrin, Lawrence Solum, Kevin Tobia, Murray Tipping, Ian Weinstein, Maggie Wittlin, Benjamin Zipursky; participants at the Fordham Faculty Workshop, UCLA Legal Theory Workshop, North American Workshop on Private Law Theory, NYC IP Law & Philosophy Workshop, St. John’s Faculty Workshop, UVA Hard Cases Workshop, USC Law & Philosophy Workshop, and Edinburgh Legal Theory Workshop; and my fall 2021 Philosophical Perspectives students. I am grateful for the opportunity to have discussed this project in its early stages with Hon. Sandra L. Lynch and Hon. David J. Barron of the U.S. Court of Appeals for the First Circuit. I am greatly indebted to the Fordham Law Librarians, especially Kelly Leong. For excellent research assistance, I thank my RAs, especially Edward Ernst, Eric Hechler, Jocelyn Lee, Maya Syngal McGrath, Jordan Phelan, Juliann Petkov, M. Ryan Purdy, Eleni Venetos, and Pamela White.

The intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”— she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?

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Volume 90.3
Beyond States: A Constitutional History of Territory, Statehood, and Nation-Building
Craig Green
Professor of Law, Temple University; Ph.D., Princeton University; J.D., Yale Law School.

Many thanks for comments on earlier drafts by Greg Ablavsky, Matthew Adler, Jane Baron, Maggie Blackhawk, Pam Bookman, Kellen Funk, Maeve Glass, Paul Gugliuzza, Dirk Hartog, Kaylin Hawkins, Owen Healy, Margaret Lemos, Jonathan Lipson, Jane Manners, Stephanie McCurry, Gillian Metzger, Henry Monaghan, Andrea Monroe, Christina D. Ponsa-Kraus, Rachel Rebouché, and Neil Siegel. Thanks also to workshop participants at the D’Arcy McNickle Center for American Indian and Indigenous Studies, the Rehnquist Center’s National Conference for Constitutional Law Scholars, and faculty workshops at Columbia Law School and Duke Law School. I am grateful to Cecilia Denhard, Erin Gallagher, Tess Gildea, Daniela Rakhlina-Powsner, Emory Strawn, Mona Vaddiraju, Tessa Valdez, Sarah Zimmerman, and especially Daniel Kilburn for outstanding research assistance.

The United States has always been more than simply a group of united states. The constitutional history of national union and component states is linked to a third category: federal territory. This Article uses an integrated history of territory, statehood, and union to develop a new framework for analyzing constitutional statehood. Three historical periods are crucial—the Founding Era, the Civil War, and Reconstruction—as times when statehood was especially malleable as a matter of constitutional law. During each of those formative periods, the most important constitutional struggles about statehood and the union involved federal territories.

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Volume 90.3
Taming Wildcat Stablecoins
Gary B. Gorton
Frederick Frank Class of 1954 Professor of Finance at the Yale School of Management.
Jeffery Y. Zhang
Assistant Professor at the University of Michigan Law School.

The authors thank Michelle Tong for excellent research assistance as well as Jordan Bleicher, Lucy Chang, Jess Cheng, Randall Guynn, Howell Jackson, Jeremy Kress, Timothy Massad, Jai Massari, Bill Nelson, Mark Pocock, Mark Van Der Weide, David Warsh, and Evan Winerman for their suggestions. In addition, the authors thank the editors of the University of Chicago Law Review—Connie Gong, Adrian Ivashkiv, Annie Kors, Gabrielle Dohmen, Josh Leopold, Mario Ramirez, Burke Snowden, and Daniel Landy—for their thoughtful feedback and edits. Finally, the authors are grateful for discussions with seminar participants at Columbia Law School, the Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Michigan Law School, the Wharton School of the University of Pennsylvania, the Council of Economic Advisers, and the Office of the Comptroller of the Currency.

While the technology underlying cryptocurrencies is new, the economics is centuries old. Oftentimes, lawmakers are so focused on understanding a new technological innovation that they fail to ask what exactly is being created. In this case, the new technology has recreated circulating private money in the form of stablecoins, which are similar to the banknotes that circulated in many countries during the nineteenth century. The implication is that stablecoin issuers are unregulated banks. Based on lessons learned from economic theory and financial history, we argue that circulating private money is not an effective medium of exchange because it is not always accepted at par and its issuers are vulnerable to destabilizing bank runs.

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Volume 90.3
In Defense of Chapter 11 for Mass Torts
Anthony J. Casey
Anthony J. Casey is the Donald M. Ephraim Professor of Law and Economics at the University of Chicago Law School, and Faculty Director of the Center on Law and Finance. In the interest of disclosure, Casey has worked as a consultant in one of the matters discussed in this Essay: Casey was retained by a law firm representing various plaintiffs with claims against 3M Company and its affiliates.
Joshua C. Macey
Joshua C. Macey is Assistant Professor at the University of Chicago Law School.

This research is funded by the Becker Friedman Institute at the University of Chicago. The Richard Weil Faculty Research Fund and the Paul H. Leffmann Fund also provided generous support. We thank Adam Badawi, Douglas Baird, Vince Buccola, Zach Clopton, Judge Robert Drain, Jared Elias, Michael Francus, Abbe Gluck, Brook Gotberg, William Hubbard, Alexandra Lahav, Jonathan Lipson, Jonathan Macey, Eric Posner, Adriana Robertson, Jonathan Seymour, Zenichi Shishido, Robert Stark, and Wataru Tanaka for helpful comments. We also thank Arielle Ambra-Juarez, Avery Broome, Ryan Fane, Rachel Kessler, Virginia Robinson, and Dania Siddiqi for their excellent research assistance.

This Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among claimants is difficult as each one seeks to maximize its own recoveries. These are the very collective action and holdout problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they leave tort victims no worse off than they would have otherwise been.

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