115 Yale L.J. 1843 (2006)

115 Yale L.J. 1857 (2006)

115 Yale L.J. 1930 (2006)

In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation of reorganization scholars for decades. By the standard law-and-economics account, deviations from absolute priority arise because well-positioned insiders take advantage of cumbersome procedures and permissive judges. In this Essay, we suggest a different force is at work. Deviations from absolute priority are inevitable even in a world completely committed to respecting priority as long as the value of the reorganized enterprise is uncertain. Uncertainty accompanies any valuation procedure. Bargaining in corporate reorganizations takes place in the shadow of this uncertainty, and standard models of litigation and settlement show that valuation uncertainty alone can explain many of the departures from absolute priority in large corporate reorganizations. Even when rational and well-informed senior investors expect the absolute priority rule to be strictly enforced, they must take into account the uncertainty associated with any valuation. The possibility of an unexpectedly high appraisal may sometimes cause them to offer apparently out-of-the-money junior investors contingent interests in the reorganized business. The debate over absolute priority--the central principle of modern corporate reorganization law--has been misdirected for decades. It has failed to recognize that a substantive rule of absolute priority does not always lead to absolute priority outcomes. A coherent account of reorganization outcomes must take into account the junior investors' right to insist on an appraisal the result of which is uncertain. This uncertainty may by itself give that right option value. The most sensible path for reform is one that seeks to minimize this valuation uncertainty.

115 Yale L.J. 2148 (2006)

Since 9/11, the federal government's use of terrorist watchlists has constrained the liberty of thousands of American travelers and transportation workers. While watchlists make sense for security purposes, they have a pair of troubling side effects: Individuals may be listed by mistake, and once on a list it is not easy to get off. This Note argues that all people kept from working or traveling by government use of terrorist watchlists have a due process right to receive meaningful procedural protections, including notice of their status and a fair hearing. The Note then proposes model procedures that protect both constitutional liberties and national security.

115 Yale L.J. 2203 (2006)

In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, and there are good reasons for seating some criminal defendants far from the jury. Yet there are also persuasive arguments, grounded in history and precedent, for why a trial judge should allow a well-behaved criminal defendant to choose for himself where he will sit. In Part I, I suggest that the criminal defendant's autonomy to choose his seat is an important aspect of the American courtroom tradition. In Part II, I argue that the defendant's well-established freedom to control some aspects of his appearance before the jury--by wearing civilian clothes rather than prison garb, for example--implies a freedom to choose the place of his appearance as well. Part III addresses the government's response to Ramsey's letter.