Vanderbilt Law Review最新文献

{"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}

{"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}

{"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}

{"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}

{"title":"An equality paradigm for preventing genetic discrimination.","authors":"Anita Silvers, Michael Ashley Stein","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 5","pages":"1341-95"},"PeriodicalIF":1.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24975269","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":"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}

{"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}

{"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}