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The Secret Life Of Priority: Corporate Reorganization After Jevic, Jonathan C. Lipson
The Secret Life Of Priority: Corporate Reorganization After Jevic, Jonathan C. Lipson
Washington Law Review
Academics have long debated whether the order of bankruptcy distributions should be “absolute” or “relative.” Should courts have the flexibility to scramble priority to serve some greater good? The Supreme Court’s recent decision in Czyzewski v. Jevic Holding Corp. holds that the answer is “no”: priority is absolute absent the consent of affected creditors. “Consent” is not self-defining, however, and is largely ignored in debates about priority. This is a problem because consent is hard to pinpoint in corporate reorganizations, a type of aggregate proceeding that can involve hundreds or thousands of creditors and shareholders. Although the Jevic majority …
Forum-Selection Provisions In Corporate "Contracts", Helen Hershkoff, Marcel Kahan
Forum-Selection Provisions In Corporate "Contracts", Helen Hershkoff, Marcel Kahan
Washington Law Review
We consider the emergent practice of including clauses in corporate certificates of incorporation or bylaws that specify an exclusive judicial forum for lawsuits. According to their proponents and most courts that have considered the question, such forum-terms are, and should be, enforceable as contractual choice-of-forum provisions. We argue that treating corporate charter and bylaw forum-terms as a matter of ordinary contract doctrine is neither logical nor justified. Because charters and bylaws involve the state in ways that are at odds with private-ordering principles and because they entail only a limited form of “consent,” an analysis of enforceability must account for …