Law Commons^™

The Breakdown Of The Public–Private Divide In Securities Law: Causes, Consequences, And Reforms, George S. Georgiev

Faculty Articles

As a regulatory scheme, U.S. securities law has traditionally been designed around a set of lines—the “public–private divide”—which separate public companies, public capital, and public markets, from private companies, private capital, and private markets. Until the early 2000s, the lines were successful in establishing two largely coherent legal realms—a highly regulated public realm and a lightly regulated private realm. A series of bold and often-inconsistent reforms between 2002 and 2020, however, have transformed this longstanding regime into a low-friction system wherein public capital flows to both public and private companies, private capital is ever more abundant, and firms can effectively …

Ford Motor Company V. Montana Eighth Judicial District Court: Lots Of Questions, Some Answers, Patrick J. Borchers, Richard D. Freer, Thomas C. Arthur

Emory Law Journal Online

In Ford Motor Company v. Montana Eighth Judicial District Court, the Supreme Court handed down its seventh personal jurisdiction decision in the last ten years. Ford—involving two consolidated state-court products liability suits alleging defects in the defendants’ cars that injured forum-state residents in their home states—is the only case in the Supreme Court’s decade-long spate of jurisdictional decisions to find the minimum contacts test satisfied. In this Article, we examine all three opinions of the case. Ford is a welcome return to serious consideration of the fairness of the assertion of jurisdiction. Unlike its six immediate predecessors, Ford …

A Path Forward For The Postal Service, Laura N. Coordes

Emory Bankruptcy Developments Journal

What is the United States Postal Service (USPS)? The entity’s future, financial and otherwise, is wrapped up in the answer to this fundamental, yet surprisingly complicated, question. The postal service in the United States began as a part of the federal government, but over the years, Congress has altered its structure. Today’s USPS is an entity situated somewhere between a public, governmental agency and a private business. It has attributes resembling both, and while most observers agree that it is becoming more “privatized,” it is still subject to a significant number of laws and regulations that do not apply to …

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Emory Bankruptcy Developments Journal

With expanding global vaccinations and the potential end of the COVID-19 pandemic in sight, who among us has not succumbed to daydreams of post-crisis ‘normal’ life? Still—and setting aside for now the certain obstacles on any road to public and economic health—we should not be too sanguine about the degree to which the eventual recovery will be even, including across countries. By now, the images of economic dislocation resulting from the pandemic, including empty tourist beaches, deserted town centers, and closed manufacturing plants, have become commonplace. In certain regions and countries, this dislocation and its after-effects may prove long-lasting, putting …

Bankruptcy Shopping: Domestic Venue Races And Global Forum Wars, Anthony J. Casey, Joshua C. Macey

Emory Bankruptcy Developments Journal

This Article proposes reforms to bankruptcy law’s venue rules. These reforms would expand venue choice, reduce opportunistic venue shopping, and account for the rise of global forum shopping. To date, the leading proposals to reform venue selection rules for bankruptcy cases have ignored simpler alternatives that can reduce opportunistic misbehavior while preserving beneficial choice. Moreover, those proposals have focused exclusively on restricting a debtor’s choice among venues within the United States while ignoring the increasing availability and convenience of foreign courts as forums for distressed corporate debtors seeking to initiate insolvency proceedings. In this way, the proposals on the table …

Chapter 11 Under Duress, Jay Lawrence Westbrook

Emory Bankruptcy Developments Journal

In this Article, the Business Bankruptcy Project (BBP) reports data from an empirical study of two samples of chapter 11 bankruptcies in the federal courts in Wilmington and Manhattan, two districts notably important in modern bankruptcy practice. While our study includes a number of interesting and important facts about the chapter 11 process in 2014 and 2018, this brief interim report centers around the loss of value arising from control by pre-bankruptcy lenders and the implications that arise from that fact. Building on other recent studies, it highlights the fact that a control transaction in many chapter 11 cases has …

Government Activism In Bankruptcy, Jared A. Ellias, George Triantis

Emory Bankruptcy Developments Journal

It is widely recognized that bankruptcy law can stymie regulatory enforcement and present challenges for governments when regulated businesses file for Chapter 11. It is less-widely understood that bankruptcy law can present governments with opportunities to advance policy goals if they are willing to adopt tactics traditionally associated with activist investors, a strategy we call “government bankruptcy activism.” The bankruptcy filings by Chrysler and General Motors in 2009 are a famous example: the government of the United States used the bankruptcy process to help both auto manufacturers resolve their financial distress while promoting the policy objectives of protecting union workers …

The Future Of Bankruptcy Appeals: Appellate Standing After Lexmark Considered, John A. Peterson Iii, Joshua A. Esses

Emory Bankruptcy Developments Journal

The purpose of this Article is to summarize the current state of the law regarding appellate standing in bankruptcy appeals within the various sister circuit courts of the United States, and to recommend how the law of appellate review of bankruptcy court orders should be applied. We will begin with a purely descriptive summary of the law of standing in federal courts and of standing to appeal orders of bankruptcy courts specifically. From this discussion it should be clear that courts almost universally limit appellate standing of bankruptcy court orders to parties that can demonstrate that they are a person-aggrieved—in …

List It Or Lose It: The Application Of Judicial Estoppel When A Debtor Fails To List A Claim, Johnathan H. Christoforatos

Emory Bankruptcy Developments Journal

This Comment addresses the application of judicial estoppel to dismiss a debtor’s civil or administrative claim when the debtor fails to list his claim on the required schedule. Part I of this Comment analyzes the general concept of equity and the principles underlying judicial estoppel. Part II analyzes equity and judicial estoppel through the lens of the bankruptcy system. Part III presents my proposed test to determine when it is appropriate for courts to invoke judicial estoppel to dismiss a debtor’s undisclosed claim when the trustee has decided to abandon it after it has been discovered. This test considers four …

Water Under The Bridge? A Look At The Proposal For A New Chapter 16 Of The Bankruptcy Code From A Comparative Law Perspective, Tobias Wetlitzky

Emory Bankruptcy Developments Journal

In light of the ongoing COVID-19 pandemic, bankruptcy law will play a crucial role in addressing the consequences of the global economic shutdown. Many large corporations in the U.S. will need to undergo chapter 11 bankruptcy proceedings or may attempt to reorganize their financial debt in an out-of-court workout. However, section 316(b) of the Trust Indenture Act of 1939 has long been blamed for making out-of-court restructurings practically impossible, because it requires unanimous approval from bondholders. In 2014, the National Bankruptcy Conference presented a solution for the inefficiencies in bond workouts by proposing a streamlined debt reorganization procedure for borrowed …

Bankrupting Tribes: An Examination Of Tribal Sovereign Immunity As Reparation In The Context Of Section 106(A), Joshua Santangelo

Emory Bankruptcy Developments Journal

This Comment concerns section 106(a) of the Bankruptcy Code, which abrogates sovereign immunity of “a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” A circuit split exists as to whether this section applies to Native Nations. The Sixth Circuit interpreted this section to maintain sovereign immunity for Native Nations in the Code, while the Ninth Circuit interpreted it to abrogate tribal sovereign immunity. This Comment argues that the Sixth Circuit’s interpretation of section 106(a) is the correct interpretation because of the unique relationship between Native Nations and the federal …

Continuation Of Chapter 13 Postmortem: Why Courts Should Allow Deceased Debtors' Cases To Continue Post Plan Confirmation, Alexandra R. Byrne

Emory Bankruptcy Developments Journal

A lack of direct guidance from Rule 1016 of the Federal Rules of Bankruptcy Procedure has created inconsistency among bankruptcy courts regarding whether to continue a chapter 13 case if the debtor dies post plan confirmation but before discharge. Rule 1016 allows a deceased debtor’s chapter 13 case to continue if “further administration is possible” and it is “in the best interests of the parties.” Although dismissal is appropriate if the debtor dies before plan confirmation, continuation after plan confirmation is possible and benefits all parties. The benefits of continuation post plan confirmation stem from the certainty under federal bankruptcy …

Disorderly And Discriminatory: The Bankruptcy Code's Treatment Of Disabled Debtors, Madeline Thatcher

Emory Bankruptcy Developments Journal

Disability benefits in bankruptcy face uncertainty under the current exemption system. The enumerated federal exemptions are poorly drafted, lack useful legislative history, and classify benefits depending on the benefit’s source. The opt out provision found in section 522(b) of the Bankruptcy Code allows jurisdictions to limit debtors to the state’s exemptions rather than the federal exemptions. Depending on which exemption the court places the disability benefits under, the benefits may be fully exempt from the bankruptcy estate, limited to the amount reasonably necessary for the debtor’s support, or unexempt. The bankruptcy courts struggle to uniformly apply the federal and state …

Event Program, Emory Bankruptcy Developments Journal

Emory Bankruptcy Developments Journal Symposia & Workshops

Emory Bankruptcy Developments Journal Workshop

March 12, 2021 10:00 a.m. - 3:15 p.m.

Emory University School of Law via Zoom

Workshop Invitation, Emory Bankruptcy Developments Journal

Emory Bankruptcy Developments Journal Symposia & Workshops

Friday, March 12, 2021 | 10:00 a.m. to 3:15 p.m. EDT

Emory Bankruptcy Developments Journal Workshop

This year, the EBDJ is publishing a special issue entitled the “Developments Issue” that will feature essays from some of the top bankruptcy scholars in the United States. In conjunction with the publication of this special issue, the Journal is hosting this workshop for authors to discuss their pieces and to take questions and comments from workshop attendees and fellow panelists.

Speakers include: Professor Laura Coordes, Professor Odette Lienau, Professor Anthony Casey, Professor Joshua Macey, Professor George Triantis, Professor Jared Ellias, and Professor Jay …

Localizing The Green Energy Revolution, Hannah J. Wiseman

Emory Law Journal Online

The United States is on the verge of a new industrial revolution. Renewable energy could replace more than 60% of our current energy generation infrastructure in fifteen years. This change is critical, yet it risks failure. The renewable generation already built in the United States consists primarily of large-scale projects connected to transmission lines in rural areas. The expansive new generation needed to reduce carbon emissions must also be predominantly large-scale, and rural, for reasons of efficiency. But a revolution that focuses nearly exclusively on “big energy” is likely to encounter obstacles, and it has downsides that could be mitigated …

Compensating Victims Of Police Violence, Valena E. Beety

Emory Law Journal Online

Victims of police violence suffer physical trauma and their families suffer mental trauma “born from the violation of a certain social trust.” Their losses are also financial, including medical expenses and mental health treatment, as well as lost income. While scholars and citizens have advocated for accountability and justice, this is the first essay to advocate for the simple act of victims’ compensation for victims of police violence. To be considered for compensation, victims must first prove that they cooperated with law enforcement and were “innocent” of wrongdoing. Yet, victims of police violence are inordinately and openly blamed for their …

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

Automation And The International Human Right To Work, Martin Kwan

Emory International Law Review Recent Developments

Automation continues to result in significant structural changes to the nature of work as computers, robots, or Artificial Intelligence (AI) are performing an increasing number of jobs. These technologies have elevated the possibilities for human prosperity and innovation, but job loss, privacy infringements, and the increasing agency of robotic systems are all acknowledged risks. These concerns are not new. In 1948, when delegates from 48 countries came together to sign the Universal Declaration of Human Rights (UDHR), they sought to capture in words what a “good human life” meant, which included the "right to work." Human rights instruments, like the …

The Human Capital Management Movement In U.S. Corporate Law, George S. Georgiev

Faculty Articles

Corporations cannot exist without workers, yet workers are not part of the formal or informal governance structures established by U.S. corporate law. Commentators and policymakers have bemoaned this state of affairs for decades, to little avail. Since the mid-2010s, however, a concept related to workers, human capital management (HCM), has become an increasingly prominent part of U.S. corporate governance. HCM is premised on the notion that workers can be viewed as “assets” and ought to be managed just as carefully as firms manage physical and capital assets. In practice, HCM is an expansive concept that has been used to refer …

The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt

Faculty Articles

With the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come. As the Supreme Court is on the brink of a generational transformation, it is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse …

Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth, Matthew Sag

Faculty Articles

In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in person by the current Court and examine whether the Justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices …

Is Climate Change A Threat To International Peace And Security?, Mark P. Nevitt

Faculty Articles

This article argues that climate change’s destabilizing impacts require us to look at existing international governance tools at our disposal with fresh eyes. As such, Council climate action cannot and should not be dismissed out-of-hand. As conflicts rise, migration explodes, and nations are extinguished, how long can the Council remain on the climate sidelines? Hence, my call for a re-conceptualized “Council 3.0” to meet the climate security challenges this century.

This article proceeds as follows. In Part II, I describe and analyze the current state of climate science and the climate-security threats facing the world. This includes an analysis of …

Making Deflection The New Diversion For Drug Offenders, Kay L. Levine, Joshua C. Hinkle, Elizabeth Griffiths

Faculty Articles

The argument unfolds as follows. In Part I, we describe the origins and operation of deflection programs that currently exist in the United States and present the published empirical evidence about their effect on recidivism rates, as well as police and user population responses to them. We specifically discuss the LEAD template from Seattle, in addition to other models in Massachusetts and Texas. In Part II, we take a closer look at how conventional policing differs from the pre-arrest diversion program that was recently instituted in Atlanta. Using data from an original dataset of all 2012 felony drug arrests in …

Victims’ Rights In The Diversion Landscape, Kay L. Levine

Faculty Articles

In this Article, I explore the practical and theoretical conflicts that might surface when the diversion movement and the Victims’ Rights Movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning Victims’ Rights Movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the contexts of fiscal responsibility, compassion for the offender, and proportionality in …

Law, Growth, And The Identity Hurdle: A Theory Of Legal Reform, Martin W. Sybblis

Faculty Articles

This Article offers a new theoretical approach to understanding resistance to legal change in the corporate and commercial context by introducing the sociological concept of "community economic identity" (CEI) into legal scholarship. I argue that community leaders (typically, but not exclusively, from the political, legal, and business spheres) generate public and recognizable identities-e.g., "Coal Country" or "Motor City"-with respect to some commercial activities. These identities influence how law reform is conceived and deployed within jurisdictional boundaries (i.e., country, state, town, region, etc.). CEI complicates the prevailing public choice narrative regarding the influence of special interests in the law reform process. …

Regulatory Competition And State Capacity, Martin W. Sybblis

Faculty Articles

This Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to …

(Im)Mutable Race?, Deepa Das Acevedo

Faculty Articles

Courts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured individuals—Rachel Dolezal and Jessica Krug among them—who were born white, yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether …

State Securities Enforcement, Andrew K. Jennings

Faculty Articles

Each year, state securities regulators bring over twice the enforcement actions brought by the Securities and Exchange Commission, yet their work is largely missing from the literature. This Article provides an institutional account of state securities enforcement and identifies two key advantages—detection granularity and institutional decentralization—that states enjoy over their federal counterparts in policing localized frauds involving individual, often small-dollar, victims. Although states share enforcement jurisdiction with the SEC and DOJ, their enforcement activity reflects their institutional advantages and constraints and thus largely does not overlap with that of federal authorities. Instead, states serve as the nation’s residual securities enforcers, …

Asylum Seekers: The Search For Basic Human Right To Healthcare In Industrial Countries, Marlaina Wright

Emory International Law Review

An important right afforded to all persons as part of their international human rights includes the right to access healthcare. Asylum seekers, however, are a population that struggles to enjoy a designated right due to countries having varying interpretations of what it means to provide healthcare services. When seeking asylum, many asylees believe that going to developed, industrial countries is the best route for achieving safety, educational opportunities, and a higher standard of living. However, when it comes to providing access to healthcare for asylum seekers specifically, countries such as the United States, Japan, Germany, and Switzerland do not fully …