Volume 64
Breaching the Mortgage Contract: The Behavioral Economics of Strategic Default
Oct. 26, 2011—Underwater homeowners face a quandary: Should they make their monthly payments as promised or walk away and save money? Traditional economic analysis predicts that homeowners will strategically default (voluntarily enter foreclosure) when it is cheaper to do so than to keep paying down the mortgage debt. But this prediction ignores the moral calculus of default,...
Splitting the Baby: Standardizing Issue Class Certification
Oct. 26, 2011—
Should Twombly and Iqbal Apply to Affirmative Defenses?
Oct. 26, 2011—
Visa as Property, Visa as Collateral
May. 30, 2011—Although the “tragic choice” framework has not been applied in the context of U.S. immigration law, current immigration policy is rife with tragic choices, defined as a commitment by policy elites to maintaining certain illusions which shield from public view tough policy choices that offend deeply-held values. Take, for example, the issue of commodification of...
Optimal Lead Plaintiffs
May. 30, 2011—Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as...
Memory and Punishment
May. 30, 2011—This Article is the first in-depth scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this Article will argue that there is a deep relationship between memory and the foundational principles justifying how...
Causing Infringement
Apr. 27, 2011—Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement based on common law tort rules. But common law tort is an enormous subject. Without...
Committee Capture? An Empirical Analysis of the Role of Creditors’ Committees in Business Reorganizations
Apr. 27, 2011—The number of businesses experiencing financial distress increased significantly during the past several years. The number of Chapter 11 reorganization cases likewise rose. And many of these business failures were spectacular, leaving little value for creditors and even less for shareholders. Consequently, how the business debtor’s limited asset pie is divided and who gets to...
The Firm as Cartel Manager
Apr. 27, 2011—Antitrust law is the primary legal obstacle to price fixing, which is condemned by Section One of the Sherman Act. Section One condemns only concerted action between separate entities, not unilateral conduct by a single entity. Firms that engage in price fixing may try to reduce the risk of antitrust liability by structuring their actions...
Procedure, Substance, and Erie
Apr. 27, 2011—This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process—in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues...