Volume 90.1 (January 2023) 1-260
Sponsor Control: A New Paradigm for Corporate Reorganization
Vincent S.J. Buccola - Associate Professor, The Wharton School of the University of Pennsylvania.
Bankruptcy courts conceive of their mission differently than other courts do. For the Supreme Court, bankruptcy cases are ordinary statutory cases to be resolved “clearly and predictably using well established principles of statutory interpretation.” Many bankruptcy judges, though, believe that bankruptcy courts serve a distinctive mission for which ordinary adjudicative methods do not suffice. Often, that mission is characterized using the language of equity. Judges and commentators alike have observed that among the most spoken words in the bankruptcy courts are: “the bankruptcy court is a court of equity.” Others have contended that bankruptcy necessitates “creativity and flexibility,” pursuant to which bankruptcy courts have broad authority to formulate orders that promote the ends of bankruptcy. Within the world of bankruptcy, in other words, it is commonly understood that bankruptcy is a special field that requires an exceptional approach—one rooted in the norms, commitments, and assumptions that underlie the values of the bankruptcy community.
I examine this disjunction and consider whether there is any principled justification for bankruptcy exceptionalism. I explain the sources of the disjunction and show how the bankruptcy courts’ exceptional approach has driven outcomes in the ongoing Purdue Pharma opioid crisis bankruptcy saga and other hotly contested and socially consequential cases. I conclude that there are many singular aspects of bankruptcy but none that justify treating it specially. Bankruptcy is distinctive, but it is not exceptional.
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.
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.
The promise of a global internet, with access for all, including companies from the Global South, is increasingly remote. This Article uncovers the forgotten and fateful history of the international regulation of privacy and trade that led to our current crisis and evaluates possible solutions to the current conflict. It proposes a Global Agreement on Privacy that would be enforced within the trade order, but with external data-privacy experts developing the treaty’s substantive norms.
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.
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. The ISLT is at issue in current litigation involving congressional redistricting that the Supreme Court will hear during its October 2022 Term.
This Article charts the emergence of this unprecedented reading of the Electors and Elections Clauses and examines both its justifications and its practical implications. Its central claim is that the ISLT, particularly in its maximalist form, is an unprecedented, unconstitutional, and potentially chaos-inducing intrusion into state election law. Those promoting the ISLT skip the crucial step of statutory interpretation—asking what the state legislature actually did. As a result, the ISLT undermines its own claims to promote political accountability and predictability by failing to engage in the question of whether a legislature has in fact rejected the state constitution and other aspects of state law. The Article concludes with suggestions for the Supreme Court, Congress, state actors, and litigants to protect the continued independence of state election law.
Stakeholderism Silo Busting
Aneil Kovvali - Associate Professor, Indiana University Maurer School of Law.
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. Studying these debates together reveals deep commonalities and unlocks useful insights. It can also suggest new theoretical and policy directions while avoiding the dangers of a blinkered approach.