119 Yale L.J. 648 (2010).
In large Chapter 11 cases, the prototypical creditor is no longer a small player holding a claim much like everyone else’s, but rather a distressed debt professional advancing her own agenda. Secured creditors are more pervasive and enjoy much more control than they had even a decade ago. Moreover, financial innovation has dramatically increased the complexity of each investor’s position. As a result of these and other changes, the legal system now faces a challenge that is much like assembling a city block that has been broken up into many parcels. There exists an anticommons problem, a world in which ownership interests are fragmented and conflicting. This is quite at odds with the standard account of Chapter 11—that it solves a tragedy of the commons, the collective action problem that exists when general creditors share numerous dispersed, but otherwise similar, interests. This Article draws on the lessons of cooperative game theory to show how, in combination, these recent changes are toxic. They undermine the coalition formation process that is a foundational assumption of Chapter 11.
119 Yale L.J. 700 (2010).
What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying those functions to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.
119 Yale L.J. 726 (2010).
In American Needle v. National Football League, the U.S. Supreme Court will decide whether, and to what extent, section 1 of the Sherman Antitrust Act regulates a professional sports league and its independently owned franchises. For the first time, the Court could characterize a league and its teams as a single entity, meaning that the league and its teams are not able to “conspire” because they share one “corporate consciousness,” and thus cannot violate section 1 through even the most anticompetitive behaviors. Such an outcome would run counter to the sports league-related decisions of most U.S. Courts of Appeals, which have generally rejected the single entity defense because teams often do not pursue common interests. It would, however, prove consistent with the views of the Seventh Circuit, which in 2008 determined in American Needle that the National Football League and its teams constitute a single entity for purposes of apparel sales.
This Feature provides a substantive analysis of American Needle, the relationship between antitrust law and professional sports, and the merits and weaknesses of the single entity defense for professional sports leagues and their teams. The Feature also projects how American Needle may influence the legal strategies and business operations of other sports associations.
The Feature discourages the Court from recognizing the NFL and similar leagues as single entities, and recommends that Congress consider targeted, sports-related exemptions from section 1.
119 Yale L.J. 782 (2010).
This Note examines whether U.S. regulatory agencies frequently use guidance documents to issue policy decisions, avoiding the notice and comment process and other procedures normally required to issue rules. Legal scholars and recent presidential administrations both have debated this issue. This Note uses newly available data to conduct the first large-scale analysis of whether agencies actually abuse guidance. The Note investigates whether agency leaders: (1) issue guidance strategically; (2) use guidance to implement ideological policies; or (3) promulgate guidance on a large scale. The Note reports negative answers to these questions, suggesting that agencies do not frequently use guidance documents to avoid the rulemaking process.