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Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii Jan 2019

Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article ...


Insolvency Law As Credit Enhancement And Enforcement Mechanism: A Closer Look At Global Modernization Of Secured Transactions Law, Charles W. Mooney Jr. Jan 2018

Insolvency Law As Credit Enhancement And Enforcement Mechanism: A Closer Look At Global Modernization Of Secured Transactions Law, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This essay revisits earlier work on the relationship between insolvency law and secured credit, the role of secured transactions law reforms, and the benefits of secured credit. These complex relationships require a holistic approach toward reforms of secured transactions law and insolvency law. Merely enacting sensible secured transactions laws and insolvency laws may be insufficient to produce the intended benefits from either set of laws.

The essay is informed by an ongoing qualitative empirical study of business credit in Japan—the Japanese Business Credit Project. The JBCP involves interviews of representatives of Japanese financial institutions and governmental bodies and legal ...


Choice-Of-Law Rules For Secured Transactions: An Interest-Based And Modern Principles-Based Framework For Assessment, Charles W. Mooney Jr. Jan 2017

Choice-Of-Law Rules For Secured Transactions: An Interest-Based And Modern Principles-Based Framework For Assessment, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This essay examines the law applicable to secured transactions. It addresses in particular the codification of the choice-of-law rules for secured transactions (STCOL rules). These rules address the laws applicable to the creation, perfection, priority, and enforcement of security interests (security rights)—a form of legislative or statutory dépeçage. It draws on the 2016 UNCITRAL Model Law on Secured Transactions (Model Law) as well as relevant North American law (Uniform Commercial Code Article 9 and the Canadian provincial Personal Property Security Acts). The STCOL rules lie at the heart of the emerged and emerging modern principles of secured transactions law ...


Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff Jan 2017

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the ...


A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr. Jan 2016

A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

The paper addresses two discrete but related and essential attributes of a sovereign debt restructuring mechanism (SDRM). It first considers the merits and feasibility of an SDRM that would provide a procedure for proposing and adopting a restructuring plan for a sovereign debtor’s debt which would not involve any tribunal or administrator (a No-Tribunal SDRM). The No-Tribunal SDRM would undertake the restructuring as if the sovereign debtor and its creditors were subject to the Model CAC regime. In addition to embodying a novel and interesting structure for an SDRM—and one that eliminates the difficult hurdle of identifying a ...


A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr. Oct 2015

A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

Given the ongoing work on a multilateral restructuring process for sovereign debt in the UN, consideration of the content and implementation of a sovereign debt restructuring mechanism (SDRM) is timely. The framework and content of the SDRM proposed here differs from earlier proposals in several important respects. For the classification and supermajority voting of claims in the approval a restructuring plan, it would mimic the structure and operation of the model collective action clauses (Model CACs) proposed by the International Capital Markets Association. Restructuring under a qualified sovereign debt restructuring law (QSDRL) would be guided by four principles: (i) observe ...


Legal Realism And The Conflict Of Laws, Kermit Roosevelt Iii Jan 2015

Legal Realism And The Conflict Of Laws, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

What did legal realism bring to the conflict of laws? Why was the realist critique of the received wisdom so successful? And why, despite that success, is the realist movement in conflict of laws—and, indeed, the whole American choice of law revolution—seen as a failure?

In this Response, I suggest some brief answers to those questions. Realism, I suggest, is more successful than its critics think—though its project remains unfinished. A better understanding of realism's contributions can show us what work remains in the realist project.


Brainerd Currie’S Contribution To Choice Of Law: Looking Back, Looking Forward, Kermit Roosevelt Iii Jan 2015

Brainerd Currie’S Contribution To Choice Of Law: Looking Back, Looking Forward, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Multiple Attempts At Class Certification, Tobias Barrington Wolff Jan 2014

Multiple Attempts At Class Certification, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple.

This essay was solicited as a reply to a recent article by Professor ...


Harmonizing Choice-Of-Law Rules For International Insolvency Cases: Virtual Territoriality, Virtual Universalism, And The Problem Of Local Interests, Charles W. Mooney Jr. Jan 2014

Harmonizing Choice-Of-Law Rules For International Insolvency Cases: Virtual Territoriality, Virtual Universalism, And The Problem Of Local Interests, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This paper explores the potential content and feasibility of a set of harmonized choice of law rules (HICOL Rules) that would apply in insolvency proceedings. It contemplates a main insolvency proceeding opened in a debtor’s center of main interests (“COMI”) and the existence of (or possibility of opening) one or more non-main (or secondary) proceedings. It also contemplates the possibility that an insolvency representative in a main or non-main proceeding may seek and be granted recognition in another state under the UNCITRAL Model Law on Cross-Border Insolvency (codified as Chapter 15 of the Bankruptcy Code in the U.S ...


Choice Of Law In Federal Courts: From Erie And Klaxon To Cafa And Shady Grove, Kermit Roosevelt Iii Jan 2012

Choice Of Law In Federal Courts: From Erie And Klaxon To Cafa And Shady Grove, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

The article offers a new perspective on choice of law in federal courts. I have argued in a series of articles that ordinary choice of law problems are best understood through application of a particular conceptual framework, which I call the two-step model. Rather than thinking of choice of law as some sort of meta-procedure, this model takes it to address two substantive questions: what are the scope of the competing states’ laws, and which should be given priority if they conflict? My previous articles have explored the utility of this framework for tackling some perennial problems in choice of ...


Institutional Practice, Procedural Uniformity, And As-Applied Challenges Under The Rules Enabling Act, Catherine T. Struve Jan 2011

Institutional Practice, Procedural Uniformity, And As-Applied Challenges Under The Rules Enabling Act, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr. Jan 2010

Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Sovereign Litigants: Native American Nations In Court, Catherine T. Struve Jan 2010

Sovereign Litigants: Native American Nations In Court, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


When The Government Is The Controlling Shareholder: Implications For Delaware, Marcel Kahan, Edward B. Rock Jan 2010

When The Government Is The Controlling Shareholder: Implications For Delaware, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

No abstract provided.


How To Prevent Hard Cases From Making Bad Law: Bear Stearns, Delaware And The Strategic Use Of Comity, Marcel Kahan, Edward B. Rock Jan 2009

How To Prevent Hard Cases From Making Bad Law: Bear Stearns, Delaware And The Strategic Use Of Comity, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

The Bear Stearns/JP Morgan Chase merger placed Delaware between a rock and a hard place. On the one hand, the deal’s unprecedented deal protection measures – especially the 39.5% share exchange agreement – were probably invalid under current Delaware doctrine because they rendered the Bear Stearns shareholders’ approval rights entirely illusory. On the other hand, if a Delaware court were to enjoin a deal pushed by the Federal Reserve and the Treasury and arguably necessary to prevent a collapse of the international financial system, it would invite just the sort of federal intervention that would undermine Delaware’s role ...


Corporate Taxation And International Charter Competition, Mitchell Kane, Edward B. Rock May 2008

Corporate Taxation And International Charter Competition, Mitchell Kane, Edward B. Rock

Faculty Scholarship at Penn Law

Corporate Charter competition has become an increasingly international phenomenon. The thesis of this article is that this development in the corporate law requires a greater focus on the corporate tax law. We first demonstrate how a tax system’s capacity to distort the international charter market depends both upon its approach to determining corporate location and the extent to which it taxes foreign source corporate profits. We also show, however, that it is not possible to remove all distortions through modifications to the tax system alone. We present instead two alternative methods for preserving an international charter market. The first ...


Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr. Jan 2008

Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Greater And Lesser Powers Of Tort Reform: The Primary Jurisdiction Doctrine And State-Law Claims Concerning Fda-Approved Products, Catherine T. Struve Jan 2008

Greater And Lesser Powers Of Tort Reform: The Primary Jurisdiction Doctrine And State-Law Claims Concerning Fda-Approved Products, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick Jan 2006

Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick

Faculty Scholarship at Penn Law

The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.

Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data ...


Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore Ruger Jan 2006

Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore Ruger

Faculty Scholarship at Penn Law

No abstract provided.


Guantanamo And The Conflict Of Laws: Rasul And Beyond, Kermit Roosevelt Iii Jan 2005

Guantanamo And The Conflict Of Laws: Rasul And Beyond, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward B. Rock Jan 2005

Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

No abstract provided.


Resolving Renvoi: The Bewitchment Of Our Intelligence By Means Of Language, Kermit Roosevelt Iii Jan 2005

Resolving Renvoi: The Bewitchment Of Our Intelligence By Means Of Language, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Guillen And Gullibility: Piercing The Surface Of Commerce Clause Doctrine, Mitchell N. Berman Jan 2004

Guillen And Gullibility: Piercing The Surface Of Commerce Clause Doctrine, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Constitutional Decision Rules, Mitchell N. Berman Jan 2004

Constitutional Decision Rules, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank Jan 2004

Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Direct And Collateral Federal Court Review Of The Adequacy Of State Procedural Rules, Catherine T. Struve Jan 2003

Direct And Collateral Federal Court Review Of The Adequacy Of State Procedural Rules, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


Light From Dead Stars: The Procedural Adequate And Independent State Ground Reconsidered, Kermit Roosevelt Iii Jan 2003

Light From Dead Stars: The Procedural Adequate And Independent State Ground Reconsidered, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Introduction To The Principles And Rules Of Transnational Civil Procedure, Geoffrey C. Hazard Jr., Michele Taruffo, Rolf Sturner, Anthony Gidi Jan 2001

Introduction To The Principles And Rules Of Transnational Civil Procedure, Geoffrey C. Hazard Jr., Michele Taruffo, Rolf Sturner, Anthony Gidi

Faculty Scholarship at Penn Law

No abstract provided.