At the time that Enron filed for bankruptcy, it had substantial assets, thousands of creditors, an opaque capital structure, and more than a whiff of fraud. By the traditional account, Enron is a prototypical example of a firm with problems that a law of corporate reorganizations is designed to solve. Like the 19th century receiverships of the great railroads, the reorganization of Enron could have allowed creditors and others to negotiate with each other and find a way to preserve the value of the firm as a going concern at the same time misdeeds are uncovered and losses are allocated among the different players. Negotiations aimed at preserving Enron's value as a going concern never took place, however. As is increasingly the case in large Chapter 11s, Enron's assets were sold quickly, most within a few weeks or months of the filing. The decision as to how to deploy Enron's assets lay not in the court but in the new owners. After selling the assets, the bankruptcy court quickly turned to what courts do best - sorting out complex and perhaps conflicting legal entitlements. This pattern of a prompt sale followed by litigation over the distribution of the proceeds reflects a dramatic change in large firm bankruptcy practice. It suggests that we should no longer think of Chapter 11 as a collective forum in which the interested parties gather to bargain over the fate of the firm.
{"title":"Four (or Five) Easy Lessons From Enron","authors":"D. Baird, R. K. Rasmussen","doi":"10.2139/SSRN.358442","DOIUrl":"https://doi.org/10.2139/SSRN.358442","url":null,"abstract":"At the time that Enron filed for bankruptcy, it had substantial assets, thousands of creditors, an opaque capital structure, and more than a whiff of fraud. By the traditional account, Enron is a prototypical example of a firm with problems that a law of corporate reorganizations is designed to solve. Like the 19th century receiverships of the great railroads, the reorganization of Enron could have allowed creditors and others to negotiate with each other and find a way to preserve the value of the firm as a going concern at the same time misdeeds are uncovered and losses are allocated among the different players. Negotiations aimed at preserving Enron's value as a going concern never took place, however. As is increasingly the case in large Chapter 11s, Enron's assets were sold quickly, most within a few weeks or months of the filing. The decision as to how to deploy Enron's assets lay not in the court but in the new owners. After selling the assets, the bankruptcy court quickly turned to what courts do best - sorting out complex and perhaps conflicting legal entitlements. This pattern of a prompt sale followed by litigation over the distribution of the proceeds reflects a dramatic change in large firm bankruptcy practice. It suggests that we should no longer think of Chapter 11 as a collective forum in which the interested parties gather to bargain over the fate of the firm.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 1","pages":"1787"},"PeriodicalIF":1.9,"publicationDate":"2002-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68609590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims. This Article assesses how the filed tariff doctrine creates an opportunity for strategic manipulation of the tariffing process, encouraging firms to rent seek by over-divulging information to regulators. Neither regulators nor courts are equipped or inclined to police such manipulation, resulting in an expansion of the application of the filed tariff shield. Under natural monopoly regulation, the filed tariff doctrine may have enhanced social welfare, to the extent it encourage private firms to focus their resources on the agency regulatory process. However, as regulation has moved away from the natural monopoly model, the filed tariff doctrine has contributed to a jurisdictional gap in the enforcement of market norms. As a result, federal regulators are unable to effectively deter private misconduct but common law and antitrust claims that also hold promise of deterrence are frequently barred from litigation in federal courts. With deregulation and the broadening of market norms, the jurisdictional gap has widened, threatening harm to consumers and competition. The Article concludes by proposing a way for courts to narrow the gap in enforcement of market norms - by lowering the filed tariff shield and looking to federal preemption law and antitrust defenses and immunities. These alternative doctrines provide courts the flexibility necessary to ensure effective deterrence in a dual enforcement regime. Although they may enhance uncertainty for private firms, the also hold promise to encourage private actors to focus their lobbying efforts on Congress, rather than on agencies that can give them the benefits of the filed tariff shield but lack the authority and resources to directly regulate them. Keywords: Regulated industries, administrative law, antitrust, natural monopoly, deregulation, federal courts, law and economics
{"title":"Lowering The Filed Tariff Shield: Judicial Enforcement for a Deregulatory Era","authors":"Jim Rossi","doi":"10.2139/SSRN.326701","DOIUrl":"https://doi.org/10.2139/SSRN.326701","url":null,"abstract":"The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims. This Article assesses how the filed tariff doctrine creates an opportunity for strategic manipulation of the tariffing process, encouraging firms to rent seek by over-divulging information to regulators. Neither regulators nor courts are equipped or inclined to police such manipulation, resulting in an expansion of the application of the filed tariff shield. Under natural monopoly regulation, the filed tariff doctrine may have enhanced social welfare, to the extent it encourage private firms to focus their resources on the agency regulatory process. However, as regulation has moved away from the natural monopoly model, the filed tariff doctrine has contributed to a jurisdictional gap in the enforcement of market norms. As a result, federal regulators are unable to effectively deter private misconduct but common law and antitrust claims that also hold promise of deterrence are frequently barred from litigation in federal courts. With deregulation and the broadening of market norms, the jurisdictional gap has widened, threatening harm to consumers and competition. The Article concludes by proposing a way for courts to narrow the gap in enforcement of market norms - by lowering the filed tariff shield and looking to federal preemption law and antitrust defenses and immunities. These alternative doctrines provide courts the flexibility necessary to ensure effective deterrence in a dual enforcement regime. Although they may enhance uncertainty for private firms, the also hold promise to encourage private actors to focus their lobbying efforts on Congress, rather than on agencies that can give them the benefits of the filed tariff shield but lack the authority and resources to directly regulate them. Keywords: Regulated industries, administrative law, antitrust, natural monopoly, deregulation, federal courts, law and economics","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"56 1","pages":"1591-1659"},"PeriodicalIF":1.9,"publicationDate":"2002-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68580075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article proposes a new theory to unify the law of fiduciary duty. The prevailing view holds that fiduciary law is atomistic, arising for varied reasons in established categories of cases (such as trustee-beneficiary and director-shareholder) and ad hoc in relationships where one person trusts another and becomes vulnerable to harm as a result. By contrast, the critical resource theory of fiduciary duty holds that every relationship properly designated as "fiduciary" conforms to the following pattern: one party (the "fiduciary") acts on behalf of another party (the "beneficiary") while exercising discretion with respect to a critical resource belonging to the beneficiary. Relying on insights from the property rights theory of the firm, this critical resource theory holds that the primary purpose of the law of fiduciary duty is to combat opportunism within relationships that fit this pattern. The beneficiary initially protects against opportunism through self-help denying or threatening to deny the fiduciary access to the critical resource that is an essential platform for opportunistic behavior in these settings. Fiduciary law supplements self-help by depriving the fiduciary of the benefits from opportunism. By requiring the existence of a critical resource at the core of all fiduciary relationships, the critical resource theory assists courts in differentiating fiduciary relationships from relationships in which harm is caused merely by misplaced trust. The critical resource theory also justifies the varying intensity of fiduciary duties across fiduciary relationships: Where self-help is effective, fiduciary constraints are relatively weak, and where self-help is weak, fiduciary constraints are relatively intense. Three additional implications of the critical resource theory of fiduciary duty are also developed: (1) The critical resource theory implies that fiduciary duty and the contractual obligation of good faith and fair dealing are close cousins, both imposing loyalty obligations of varying intensity to combat opportunism; (2) the critical resource theory affirms the capacity of parties in a fiduciary relationship to contract out of fiduciary duties; and (3) the critical resource theory explains why restitution is the usual remedy for a breach of fiduciary duty.
{"title":"The Critical Resource Theory of Fiduciary Duty","authors":"D. Gordon Smith","doi":"10.2139/SSRN.339100","DOIUrl":"https://doi.org/10.2139/SSRN.339100","url":null,"abstract":"This Article proposes a new theory to unify the law of fiduciary duty. The prevailing view holds that fiduciary law is atomistic, arising for varied reasons in established categories of cases (such as trustee-beneficiary and director-shareholder) and ad hoc in relationships where one person trusts another and becomes vulnerable to harm as a result. By contrast, the critical resource theory of fiduciary duty holds that every relationship properly designated as \"fiduciary\" conforms to the following pattern: one party (the \"fiduciary\") acts on behalf of another party (the \"beneficiary\") while exercising discretion with respect to a critical resource belonging to the beneficiary. Relying on insights from the property rights theory of the firm, this critical resource theory holds that the primary purpose of the law of fiduciary duty is to combat opportunism within relationships that fit this pattern. The beneficiary initially protects against opportunism through self-help denying or threatening to deny the fiduciary access to the critical resource that is an essential platform for opportunistic behavior in these settings. Fiduciary law supplements self-help by depriving the fiduciary of the benefits from opportunism. By requiring the existence of a critical resource at the core of all fiduciary relationships, the critical resource theory assists courts in differentiating fiduciary relationships from relationships in which harm is caused merely by misplaced trust. The critical resource theory also justifies the varying intensity of fiduciary duties across fiduciary relationships: Where self-help is effective, fiduciary constraints are relatively weak, and where self-help is weak, fiduciary constraints are relatively intense. Three additional implications of the critical resource theory of fiduciary duty are also developed: (1) The critical resource theory implies that fiduciary duty and the contractual obligation of good faith and fair dealing are close cousins, both imposing loyalty obligations of varying intensity to combat opportunism; (2) the critical resource theory affirms the capacity of parties in a fiduciary relationship to contract out of fiduciary duties; and (3) the critical resource theory explains why restitution is the usual remedy for a breach of fiduciary duty.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 1","pages":"1399-1497"},"PeriodicalIF":1.9,"publicationDate":"2002-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68590573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In The Idea of Private Law, Ernest Weinrib argues that tort law is "just like love." By this, he means that tort law is best understood formally, for what it is, rather than functionally, for what it does. Formalist theory is presented as a stark alternative to the instrumentalist theories that have dominated modern American torts scholarship. This essay argues that Weinrib's approach is, in one important and revealing respect, of a piece with those that he criticizes. Specifically, by conveying an attitude of fatalistic acceptance toward tort law, it partakes of the generally unsympathetic disposition maintained by the vast majority of modern tort scholars toward their subject. For Weinrib, no less than for Calabresi, Coleman, Epstein, and Posner, tort law remains "unloved."
{"title":"Unloved: Tort in the Modern Legal Academy","authors":"John C. P. Goldberg","doi":"10.2139/SSRN.347361","DOIUrl":"https://doi.org/10.2139/SSRN.347361","url":null,"abstract":"In The Idea of Private Law, Ernest Weinrib argues that tort law is \"just like love.\" By this, he means that tort law is best understood formally, for what it is, rather than functionally, for what it does. Formalist theory is presented as a stark alternative to the instrumentalist theories that have dominated modern American torts scholarship. This essay argues that Weinrib's approach is, in one important and revealing respect, of a piece with those that he criticizes. Specifically, by conveying an attitude of fatalistic acceptance toward tort law, it partakes of the generally unsympathetic disposition maintained by the vast majority of modern tort scholars toward their subject. For Weinrib, no less than for Calabresi, Coleman, Epstein, and Posner, tort law remains \"unloved.\"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 1","pages":"1501"},"PeriodicalIF":1.9,"publicationDate":"2002-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68597019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court's commercial speech jurisprudence is widely viewed as a mess. Although a majority of the Court, and most academic commentators, seemingly believe that regulations of paradigmatically commercial speech ought not be subject to strict scrutiny, the Justices are unable to provide either a compelling defense of the particular brand of intermediate scrutiny to which such regulations are presently subject, or a coherent definition of the expression that falls into the "commercial speech" category. This article argues that the Supreme Court's 1986 decision in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, furnishes the key to a rational reformulation of commercial speech doctrine. In Posadas, a bare majority of the Court voted to upheld a wholesale ban on casino advertising enacted by the Puerto Rico legislature, reasoning that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling". But scholars savaged this reasoning, and the Court disavowed it ten years later, in 44 Liquormart, Inc. v. Rhode Island. The article seeks to demonstrate that, in repudiating Posadas so totally, the Court erred. To be sure, Posadas's assertion that the casino advertising ban followed "necessarily" from the permissibility of a ban on casino gambling reflects bad logic and worse law. But the case-specific intuitions underlying Posadas - namely, that the advertising ban was constitutional, and that it was constitutional in large part precisely because Puerto Rico could have prohibited casino gambling - were very probably right. Indeed, viewing the commercial speech problem through the lens of the unconstitutional conditions doctrine reveals that the greater-includes-the-lesser inference has an important role to play. It bears emphasis, though, that the inference plays a role only when we correctly identify precisely what is the greater power and what is the lesser. Furthermore, even when properly understood, the inference has only a role to play; it is not dispositive. In other words, the critics of Posadas have erred in frequently misconstruing precisely what lesser power Posadas said flowed from the supposedly "greater" power to ban the commercial activity, whereas the Posadas majority erred in assuming that the lesser power necessarily followed. Once the greater/lesser thesis is more carefully articulated and its proper scope more precisely delimited, we are in position to do more than simply craft a more sensible commercial speech doctrine. Rather, this rehabilitation of Posadas points the way toward a significant revision of First Amendment doctrine generally. This article concludes by exploring how a more nuanced, multi-part test for content-based regulations of speech can result in significant latitude for government regulation of (some sorts of) commercial speech, even without requiring different doctrinal categories.
{"title":"Commercial Speech and the Unconstitutional Conditions Doctrine: A Second Look at \"The Greater Includes the Lesser\"","authors":"Mitchell N. Berman","doi":"10.2139/SSRN.322221","DOIUrl":"https://doi.org/10.2139/SSRN.322221","url":null,"abstract":"The Supreme Court's commercial speech jurisprudence is widely viewed as a mess. Although a majority of the Court, and most academic commentators, seemingly believe that regulations of paradigmatically commercial speech ought not be subject to strict scrutiny, the Justices are unable to provide either a compelling defense of the particular brand of intermediate scrutiny to which such regulations are presently subject, or a coherent definition of the expression that falls into the \"commercial speech\" category. This article argues that the Supreme Court's 1986 decision in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, furnishes the key to a rational reformulation of commercial speech doctrine. In Posadas, a bare majority of the Court voted to upheld a wholesale ban on casino advertising enacted by the Puerto Rico legislature, reasoning that \"the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling\". But scholars savaged this reasoning, and the Court disavowed it ten years later, in 44 Liquormart, Inc. v. Rhode Island. The article seeks to demonstrate that, in repudiating Posadas so totally, the Court erred. To be sure, Posadas's assertion that the casino advertising ban followed \"necessarily\" from the permissibility of a ban on casino gambling reflects bad logic and worse law. But the case-specific intuitions underlying Posadas - namely, that the advertising ban was constitutional, and that it was constitutional in large part precisely because Puerto Rico could have prohibited casino gambling - were very probably right. Indeed, viewing the commercial speech problem through the lens of the unconstitutional conditions doctrine reveals that the greater-includes-the-lesser inference has an important role to play. It bears emphasis, though, that the inference plays a role only when we correctly identify precisely what is the greater power and what is the lesser. Furthermore, even when properly understood, the inference has only a role to play; it is not dispositive. In other words, the critics of Posadas have erred in frequently misconstruing precisely what lesser power Posadas said flowed from the supposedly \"greater\" power to ban the commercial activity, whereas the Posadas majority erred in assuming that the lesser power necessarily followed. Once the greater/lesser thesis is more carefully articulated and its proper scope more precisely delimited, we are in position to do more than simply craft a more sensible commercial speech doctrine. Rather, this rehabilitation of Posadas points the way toward a significant revision of First Amendment doctrine generally. This article concludes by exploring how a more nuanced, multi-part test for content-based regulations of speech can result in significant latitude for government regulation of (some sorts of) commercial speech, even without requiring different doctrinal categories.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 1","pages":"693"},"PeriodicalIF":1.9,"publicationDate":"2002-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68575498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Every time a new technology creates legal problems, we face in a particular context the general question of relative institutional competence. Do we turn first to the judiciary, allowing time for a gradual solution derived from common law methods, or do we look instead to the federal legislature for an instant global solution? This Article endorses the judicial approach, suggesting that Congress is particularly likely to err when rapidly changing technology creates a perceived crisis, and when the strongest reasons for not legislating are abstract and inchoate. The Article examines three legal questions raised by computer technology, two the subject of recently enacted federal statutes and the third dealt with solely by the judiciary. The author concludes that both of the factors that maximize the potential for legislative error are present in most cyberlaw questions, and that the judiciary has therefore been more successful than Congress at responding to the legal problems arising from this new technology.
{"title":"Haste Makes Waste: Congress and the Common Law in Cyberspace","authors":"S. Sherry","doi":"10.2139/SSRN.319683","DOIUrl":"https://doi.org/10.2139/SSRN.319683","url":null,"abstract":"Every time a new technology creates legal problems, we face in a particular context the general question of relative institutional competence. Do we turn first to the judiciary, allowing time for a gradual solution derived from common law methods, or do we look instead to the federal legislature for an instant global solution? This Article endorses the judicial approach, suggesting that Congress is particularly likely to err when rapidly changing technology creates a perceived crisis, and when the strongest reasons for not legislating are abstract and inchoate. The Article examines three legal questions raised by computer technology, two the subject of recently enacted federal statutes and the third dealt with solely by the judiciary. The author concludes that both of the factors that maximize the potential for legislative error are present in most cyberlaw questions, and that the judiciary has therefore been more successful than Congress at responding to the legal problems arising from this new technology.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 1","pages":"307"},"PeriodicalIF":1.9,"publicationDate":"2002-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.319683","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68571885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Not without my father: the legal status of the posthumously conceived child.","authors":"Christopher A Scharman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 3","pages":"1001-54"},"PeriodicalIF":1.9,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24536593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I. INTRODUCTION Before 1990, the United States Bankruptcy Court for the District of Delaware was a sleepy backwater. During the entire decade of the 1980s, Phoenix Steel-whose only plant was located in Delaware-was the only large, public company to file there.1 In 1990, two large, public companies-Continental Airlines and United Merchants and Manufacturers-filed in Delaware. They constituted 7% of the twenty-nine large, public companies filing in the United States that year.2 From 1990 to 1996, Delaware's market share steadily increased to 87% (thirteen of fifteen cases).3 In just seven years, Delaware had become the bankruptcy reorganization capital of the United States.4 Lynn LoPucki and Sara Kalin recently suggested that the Delaware bankruptcy court's spectacular success in winning market share may have been accompanied by an equally spectacular failure in the reorganizations that the court processed during those years.5 Their suggestion was based principally on an empirical finding that by February 2000, nine of the thirty companies (30%) emerging from bankruptcy reorganization in Delaware from 1991 to 1996 had filed bankruptcy a second time.6 Excluding New York-which had a refiling rate almost as high as Delaware's (23%)-only four of the seventy-five large, public companies (5%) emerging from bankruptcy in other courts during the same period filed a second time.7 LoPucki and Kalin's study made only a preliminary attempt to discover the reasons for Delaware's higher refiling rate. But, as their findings on the disparity of refiling rates gained wide publicity,8 bankruptcy scholars, lawyers, and judges offered a variety of possible explanations. Most of those explanations sought to exonerate the courts. Some argued that refiling is an inadequate measure of success, IMAGE FORMULA9 because it ignores distressed debtors that fail without refiling.9 Some argued that the firms filing in Delaware might have been more difficult to reorganize because they had more complex capital structures10 or more serious business problems.11 Others argued that Delaware's high refiling rate was economically efficient,12 implying that other courts should ease their standards and accept higher refiling rates. Still others argued that it was impossible to know whether Delaware was doing a worse job without knowing the individual reasons that each reorganization failed.13 This Article reports the results of a study designed to confirm that Delaware's and New York's higher refiling rates indicate higher failure rates and to begin the inquiry into the reasons for those higher failure rates. Part II describes the universe of cases studied, the sources of data, and the method by which the data were gathered. IMAGE FORMULA11 Part III describes four criteria for evaluating the success of reorganized firms and applies them to determine whether Delaware and New York reorganizations are less successful than reorganizations in other courts. Part III concludes that in the five y
1990年以前，美国特拉华州破产法院是一潭死水。在20世纪80年代的整个十年里，凤凰钢铁公司——它唯一的工厂位于特拉华州——是唯一一家在特拉华州提交申请的大型上市公司1990年，两家大型上市公司——大陆航空公司(continental Airlines)和联合招商局(United Merchants and manufacturers)——在特拉华州提出申请。它们占当年在美国上市的29家大型上市公司的7%从1990年到1996年，特拉华州的市场份额稳步增长至87%(15例中有13例)4林恩·洛普基和萨拉·卡林最近提出，特拉华州破产法庭在赢得市场份额方面取得了惊人的成功，但伴随而来的可能是法院在这几年处理的重组中同样遭遇了惊人的失败他们的建议主要基于一项实证发现，即到2000年2月，特拉华州从1991年到1996年进行破产重组的30家公司中，有9家(30%)已经第二次申请破产除去纽约(其重新申请率几乎和特拉华州一样高(23%))，同期在其他法院破产的75家大型上市公司中，只有4家(5%)申请了第二次破产LoPucki和Kalin的研究只是初步尝试发现特拉华州高再申请率的原因。但是，随着他们关于重新申请率差异的发现得到广泛宣传，破产学者、律师和法官提出了各种可能的解释。这些解释大多试图为法院开脱罪名。有些人认为，重新申请是衡量成功的一个不充分的标准，因为它忽略了那些没有重新申请就破产的陷入困境的债务人一些人认为，在特拉华州申请破产保护的公司重组起来可能更困难，因为它们的资本结构更复杂，或者存在更严重的商业问题其他人则认为，特拉华州的高再申请率在经济上是有效的，这意味着其他法院应该放宽他们的标准，接受更高的再申请率。还有一些人认为，如果不知道每次重组失败的个别原因，就不可能知道特拉华州是否做得更糟本文报告了一项研究的结果，该研究旨在证实特拉华州和纽约州较高的重新申请率表明较高的失败率，并开始调查这些较高失败率的原因。第二部分描述了所研究的案例的范围、数据的来源以及收集数据的方法。第三部分描述了评估重组公司成功的四个标准，并应用它们来确定特拉华州和纽约州的重组是否比其他法院的重组更不成功。第三部分的结论是，在新成立后的5年里，特拉华州和纽约州重组的公司更频繁地进行重组，更频繁地未能执行计划，遭受更大的损失，甚至更频繁地因财务困境而倒闭。第四部分将特拉华州和纽约州进入重组的公司与其他地方进入重组的公司在若干标准上进行了比较，但没有发现理由相信特拉华州或纽约州重组的公司在重组方式上存在差异，从而使它们更难以重组。第五部分考虑并驳斥了两个法院的高失败率可能是有效的说法。第六部分考察了在特拉华州、纽约州和其他法院运作的破产程序中的几个差异，得出结论认为特拉华州重组过程中的某些差异似乎导致了特拉华州的高失败率。第七部分对特拉华州重组的其他尚未测试的特征提供了一些额外的结论和推测，这些特征也可能导致特拉华州的高失败率。…
{"title":"Why Are Delaware and New York Bankruptcy Reorganizations Failing","authors":"Lynn M. LoPucki, Joseph W. Doherty","doi":"10.2139/SSRN.303580","DOIUrl":"https://doi.org/10.2139/SSRN.303580","url":null,"abstract":"I. INTRODUCTION Before 1990, the United States Bankruptcy Court for the District of Delaware was a sleepy backwater. During the entire decade of the 1980s, Phoenix Steel-whose only plant was located in Delaware-was the only large, public company to file there.1 In 1990, two large, public companies-Continental Airlines and United Merchants and Manufacturers-filed in Delaware. They constituted 7% of the twenty-nine large, public companies filing in the United States that year.2 From 1990 to 1996, Delaware's market share steadily increased to 87% (thirteen of fifteen cases).3 In just seven years, Delaware had become the bankruptcy reorganization capital of the United States.4 Lynn LoPucki and Sara Kalin recently suggested that the Delaware bankruptcy court's spectacular success in winning market share may have been accompanied by an equally spectacular failure in the reorganizations that the court processed during those years.5 Their suggestion was based principally on an empirical finding that by February 2000, nine of the thirty companies (30%) emerging from bankruptcy reorganization in Delaware from 1991 to 1996 had filed bankruptcy a second time.6 Excluding New York-which had a refiling rate almost as high as Delaware's (23%)-only four of the seventy-five large, public companies (5%) emerging from bankruptcy in other courts during the same period filed a second time.7 LoPucki and Kalin's study made only a preliminary attempt to discover the reasons for Delaware's higher refiling rate. But, as their findings on the disparity of refiling rates gained wide publicity,8 bankruptcy scholars, lawyers, and judges offered a variety of possible explanations. Most of those explanations sought to exonerate the courts. Some argued that refiling is an inadequate measure of success, IMAGE FORMULA9 because it ignores distressed debtors that fail without refiling.9 Some argued that the firms filing in Delaware might have been more difficult to reorganize because they had more complex capital structures10 or more serious business problems.11 Others argued that Delaware's high refiling rate was economically efficient,12 implying that other courts should ease their standards and accept higher refiling rates. Still others argued that it was impossible to know whether Delaware was doing a worse job without knowing the individual reasons that each reorganization failed.13 This Article reports the results of a study designed to confirm that Delaware's and New York's higher refiling rates indicate higher failure rates and to begin the inquiry into the reasons for those higher failure rates. Part II describes the universe of cases studied, the sources of data, and the method by which the data were gathered. IMAGE FORMULA11 Part III describes four criteria for evaluating the success of reorganized firms and applies them to determine whether Delaware and New York reorganizations are less successful than reorganizations in other courts. Part III concludes that in the five y","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 1","pages":"1933"},"PeriodicalIF":1.9,"publicationDate":"2002-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.303580","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68499865","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Assisting minors seeking abortions in judicial bypass proceedings: a guardian ad litem is no substitute for an attorney.","authors":"Elizabeth Susan Graybill","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 2","pages":"581-606"},"PeriodicalIF":1.9,"publicationDate":"2002-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24413282","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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