118 Yale L.J. 806 (2009).
Using an original framework for evaluating bankruptcy rules, this Article casts doubt on the efficiency of legal arrangements that give some creditors an absolute advantage over others in the division of a debtor’s assets. Such arrangements, which I classify as asymmetrical, are widely used in the modern economy, and include the secured loan, American general partnership, and guaranty contract. In contrast, symmetrical arrangements, which include the corporation and common law partnership, confer no absolute advantage, because they give each creditor group a prior claim to a distinct debtor asset pool. I demonstrate that symmetrical arrangements produce lower debt appraisal costs, more efficient creditor monitoring, and speedier bankruptcy proceedings; they also are less conducive to exploitation of creditors such as tort victims who do not adjust to subordination of their claims. These results indicate that lawmakers could create social wealth by reforming asymmetrical arrangements to be symmetrical. The Article concludes by showing how symmetry is superior to previous proposals for reforming the secured loan.
118 Yale L.J. 868 (2009).
In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of stronger state regulation. That conclusion, though narrow, rests on descriptive and normative claims with broad implications for the state-federal balance in information privacy law. Descriptively, Professor Schwartz sees the current information privacy law landscape as the product of successful experimentation at the state level. That account, in turn, fuels his normative claims, and in particular his sympathy with theories of competitive federalism. As I will argue, however, we cannot ignore the federal inputs—judicial and legislative—that shape significant segments of state information privacy law. The story of information privacy law is one of federal leadership as well as state experimentation, and we should be wary—whether on the basis of observable practice or theoretical perspective—of disabling Congress from articulating and federalizing privacy norms. Moreover, even from the perspective of competitive federalism, the arguments for federal regulation of information privacy law are stronger than Professor Schwartz suggests.
118 Yale L.J. 902 (2009).
A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the
118 Yale L.J. 948 (2009).
This Note analyzes a set of constitutional stories that has not been the subject of focused study—the constitutional stories we tell our schoolchildren in our most widely used high school textbooks. These stories help reinforce a constitutional culture that is largely deferential to the Supreme Court, limiting references to popular resistance to the Court and often linking such popular resistance to the actions of self-interested politicians, at best, and historical villains, at worst. Our textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and “court-packing”), but are sometimes receptive to subtler, longer-term checks (like social mobilization and judicial nominations). If judicial supremacy does run rampant, as popular constitutionalists claim, it would appear as though our public schools are complicit in its entrenchment.