After a detailed examination of the nature of secured credit and the historical evolution of the treatment of secured claims in bankruptcy, this paper first explains why, on the statute as written in 1978, Congress intended for secured creditors to have the right to credit bid in a sale under a cram down plan, and did not intend for that right to be supplanted by an alternative indubitable equivalent treatment. However, the paper then demonstrates how the financial world for which the 1978 Code was written has fundamentally changed, with the rise of dominant secured creditors. That change has upset the balance of power, rendering the Code’s scheme obsolete as regards secured creditors in this context.

The paper then asks what can and should be done, either judicially or legislatively, to address the problem of chapter 11’s obsolescence. As a matter of statutory interpretation, a “faithful” Court should be bound to uphold the secured creditor’s right to credit bid, although a dynamic interpretation might counsel otherwise. Legislatively, the time has come to amend the Bankruptcy Code to reverse the default rule on credit bidding; suggested Code amendments are offered. Contrary to the virtually unanimous body of scholarly opinion, the paper argues that credit bidding should not presumptively be required. Instead, a secured creditor should be permitted to credit bid only if it makes a specific showing of “cause” to the court, demonstrating how denial of that right would prejudice the secured creditor in the particular case.

I argue that attentiveness to sticky slopes is important for three reasons. First, awareness of the prospect of a sticky slope can be important in long term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision. Third, sticky slopes reveal how prior victories are themselves sites of social conflict and controversy over meaning, which social movements will want to turn to their preferred ends.

Our findings suggest that the agency’s fee structure biases the PTO towards granting patents. Moreover, we find the distortion in PTO decision-making has a differential impact across technology and entity size. For instance, with respect to those types of patents for which the PTO is likely to profit the most from granting patents, we estimate a relatively stronger sensitivity to the PTO’s funding structure. Furthermore, we also find that these distortions are more likely to occur when markers indicative of an underfunded PTO are present. As such, our results are relevant to the ongoing debate in administrative law regarding the nature of bureaucrats or government employees. Our findings contradict the idea that bureaucrats seek to maximize their budgets while lending support to the notion that when agencies seek enlarged budgets they do so as a result of being mission minded but financially constrained.

In addition to their theoretical implications, our findings also speak to policy issues concerning patent law. Prior to our study, commentators failed to recognize the extent to which the PTO's fee schedule biased the agency towards issuing patents. As a result, recent patent reform, which was enacted in part to address the harm associated with the PTO issuing too many invalid patents, is unlikely to eliminate the granting pressure identified in this Article.

Without an effective decision-making process, regulators will continue to expect boards to perform tasks that exceed their capabilities. Worse still, conventional structural reforms such as increased director independence can actually have dangerous consequences. These reforms lessen boards’ actual authority by reducing their ability to utilize effective decision-making processes. Boards must take active steps to improve the quality of their decision making. Unless they do so, they will continue to fail because they lack the power to meet the demands that law and legal theory place on them.

This Article argues that effective decision-making processes, the attributes of which can be found in organizational behavior theory, are essential to securing a corporate board’s actual authority. Analyzing the components of such a process, and identifying which components are truly controlled by boards as opposed to managers, provides a roadmap for what boards need in order to have both de facto and de jure authority in their corporations. This Article provides that original analysis. Process is power, and without it, board authority is only an empty theory, not reality.

What Chrysler and GM vividly illustrate is that there actually is no clean, clear distinction between reorganization by “plan” and reorganization by “sale”—through the wonders of sophisticated transaction engineering, each can be the precise functional equivalent of the other. The acute danger this presents, and that actually came to pass in the GM case, is that a nominal “sale” structure can be used to effectuate a purely internal boot-strap reorganization that distributes the value of the reorganized debtor entity among creditors in a manner that indisputably contravenes their relative priority rights in the debtor’s assets. Indeed, when examined in the context of an even longer historical perspective on corporate reorganizations, one can readily discern that what came to pass in GM (and that the Second Circuit’s Chrysler opinion fully sanctions) is precisely that which the Supreme Court prohibited in a series of decisions in the late 1800s and early 1900s that formed the basis for chapter 11’s codification of creditors’ priority rights in corporate reorganizations.

Contrary to the received wisdom regarding the implications of Chrysler and GM, their combined effect foretells the literal death of the fundamental distributive principles that are the essence of bankruptcy law and that have been the bedrock of bankruptcy reorganizations for at least a century. Moreover, no one (and particularly not the judges presiding over those cases) seems to appreciate that fact! Amazingly, we find ourselves in the midst of a sub silentio destruction of the very core of bankruptcy reorganization law.

Bail-ins have greater political appeal than other forms of redistributive government action (e.g., increased government spending and taxation). Bail-ins are expected to reduce future investment, as investors fear similar actions in future crises. But how harmful is that? Market-skeptics question that the market correctly determines the optimal amount of investment, and are thus untroubled by government’s manipulation of it. And to appease those who do trust market allocation of investment, government can offset the investment reduction by subsidizing investment (e.g., making mortgage interest tax-deductable to encourage lending and offset the effects of staying foreclosures or of court-modified mortgage terms).

This essay argues that bail-ins are significantly harmful from both market-trusting and market-skeptic perspectives. Rather than a permanent reduction in future investment, bail-ins reduce investment cyclically – significantly when the bail-in is imposed, but declining gradually as cognitive biases cause managers to underestimate the risk of future contract modifications and agency costs incentivize the managers to increase investment regardless of future bail-in risk.

Cyclical fluctuation in investment deterrence may seem less harmful than permanent deterrence, but the opposite is true. As this essay explains, cyclical fluctuation of investment makes bail-ins harmful from the perspectives of both market-skeptics and market-trusters, and exacerbates the magnitude of future business cycles.

Although interviewing a witness at first glance does not seem to fit within the traditional legal research and writing pedagogy, the open memorandum problem lends itself to permitting students to gather facts using “client” interviews. Additionally, by fostering the development of practical lawyering skills in addition to oral advocacy and legal research and writing, legal writing professors provide students with an essential tool every lawyer needs to successfully represent a client[2] and assists upper level clinical professors by laying the groundwork for clinical courses.[3] Thus, incorporating the domestic violence client interview into the legal writing curriculum prepares students for real world practice and multi-faceted client problems; incorporates interdisciplinary skills into law school training; and trains students for upper level clinical work.

The mortgage crisis was fueled by unconventional loans that promoted moral hazard— for example, teaser rates that temporarily insulated borrowers from bad credit decisions. Now, U.S. debt relief programs add a new moral hazard, according to a recent GAO report: they encourage more borrowers to fall behind on mortgage payments to qualify for a bailout.

My study asks whether the U.S. can require homeowners to perform community service as a condition for debt relief. I propose 200 hours of service in programs such as Habitat for Humanity. This idea is based on my analysis of five groups of citizens who were ordered by government to perform a public service. The first group is men who labored on road duty. Tracing to the early 1800s, these state and local laws required citizens to build roads several days each year without pay. Lawyers were ordered in the 1800s to represent indigent defendants without pay. In the 1940s, the draft law allowed conscientious objectors to avoid combat by accepting mandatory assignment to jobs in charitable organizations. In the 1970s, welfare recipients were required to work on community projects if they could not find a job. The National Health Service Corps required new physicians who received tuition grants to serve the poor.

My study of 441 court rulings from 1807 to 2002 focuses on recalcitrant individuals who challenged these compulsory service policies. In 83% of the cases, state and federal trial courts upheld government imposed work. In 100% of their rulings, the U.S. Constitution did not prohibit government imposed obligations. However, 37.5% of trial courts ruled in favor of individuals who raised state constitutional claims. In appellate cases, only 8% of courts ruled that a work or service obligation violated a right in the U.S. Constitution. In narrow rulings, individuals won 48% of cases before appellate courts when their challenge was based on state statutes.

The results suggest that courts would not interfere with a federal policy that requires community service in return for mortgage relief. My research also shows that compulsory service requires a compelling and overarching purpose— plus an egalitarian ethos that justifies its imposition. The mortgage relief programs satisfy these pre-conditions. In an age when the poor and powerful are required to make sacrifices, mortgage bailouts to the middle class perpetuate the spendthrift mentality that dug the nation’s deep financial hole. There is wisdom in assisting millions of strapped debtors, but why is no thought given to a policy of requiring bailed-out homeowners to pay back part of their debt relief by serving their communities? If millions of homeowners who face foreclosure performed community service, moral hazard would be reduced by making them more responsible for their credit behavior, while other homeowners would be discouraged from intentionally falling behind on their loans.

This Article employs both a theoretical framework to create a taxonomy of windfalls and an empirical study of the use of the word “windfall” in the New York Times, the Wall Street Journal, state law cases and congressional history to analyze the rhetorical power of the term in popular and legal discourse. Though the term “windfall” originally referred to fruits literally falling off trees due to the vagaries of the wind and no action on the part of the recipient, the term windfall is currently commonly used to refer to marketplace gains between freely negotiating parties. In addition, courts sparingly use the term “windfall” to refer to double recoveries and recoveries where no underlying loss has occurred. In popular discourse, however, speakers employ the term to convey a sense that a marketplace gain of another is undeserved somehow. This overuse of the term “windfall” reflects a misunderstanding not only of what a windfall is, but also a misunderstanding of the appropriateness of law to rewrite existing bargains and to limit private parties’ abilities to freely bargain without other considerations. Any defensible argument that redistributing luck by redistributing windfalls falls apart once the so-called windfall gains are the product of industry, innovation, ambition and bargaining. This Article argues against the temptation to label private gains as windfalls that are subject to recapture.

The mortgage crisis was fueled by unconventional loans that promoted moral hazard— for example, teaser rates that temporarily insulated borrowers from bad credit decisions. Now, U.S. debt relief programs add a new moral hazard, according to a recent GAO report: they encourage more borrowers to fall behind on mortgage payments to qualify for a bailout.

My study asks whether the U.S. can require homeowners to perform community service as a condition for debt relief. I propose 200 hours of service in programs such as Habitat for Humanity. This idea is based on my analysis of five groups of citizens who were ordered by government to perform a public service. The first group is men who labored on road duty. Tracing to the early 1800s, these state and local laws required citizens to build roads several days each year without pay. Lawyers were ordered in the 1800s to represent indigent defendants without pay. In the 1940s, the draft law allowed conscientious objectors to avoid combat by accepting mandatory assignment to jobs in charitable organizations. In the 1970s, welfare recipients were required to work on community projects if they could not find a job. The National Health Service Corps required new physicians who received tuition grants to serve the poor.

My study of 441 court rulings from 1807 to 2002 focuses on recalcitrant individuals who challenged these compulsory service policies. In 83% of the cases, state and federal trial courts upheld government imposed work. In 100% of their rulings, the U.S. Constitution did not prohibit government imposed obligations. However, 37.5% of trial courts ruled in favor of individuals who raised state constitutional claims. In appellate cases, only 8% of courts ruled that a work or service obligation violated a right in the U.S. Constitution. In narrow rulings, individuals won 48% of cases before appellate courts when their challenge was based on state statutes.

The results suggest that courts would not interfere with a federal policy that requires community service in return for mortgage relief. My research also shows that compulsory service requires a compelling and overarching purpose— plus an egalitarian ethos that justifies its imposition. The mortgage relief programs satisfy these pre-conditions. In an age when the poor and powerful are required to make sacrifices, mortgage bailouts to the middle class perpetuate the spendthrift mentality that dug the nation’s deep financial hole. There is wisdom in assisting millions of strapped debtors, but why is no thought given to a policy of requiring bailed-out homeowners to pay back part of their debt relief by serving their communities? If millions of homeowners who face foreclosure performed community service, moral hazard would be reduced by making them more responsible for their credit behavior, while other homeowners would be discouraged from intentionally falling behind on their loans.

This paper suggests that governments seeking the benefits of open standards need to consider the role of interoperability. Without multiple interoperable implementations, i.e., “running code”, users will not gain the advantages of competition and substitutability. To highlight the issues around interoperability, we examined the interoperability issues around ODF and OOXML.

This research assesses interoperability among different software implementations of each document formats. For example, the implementations for ODF included KOffice, Wordperfect, TextEdit, Microsoft Office, and Google Docs. A set of test documents was used to evaluate the performance of other alternative implementations.

Our analyses show that there are significant issues with interoperability among various implementations. Users face numerous issues when transferring files between different implementations. While the best implementations may result in formatting problems, the worst implementations actually lose information, e.g., information found in pictures, footnotes, comments, tracking changes, and tables. Our findings include specific scores for each implementation. There was considerable variation among how well each implementation performed. For ODF, the compatibility scores ranged from a raw score of 151 (100%--weighted percent) to 48 (55%--weighted percent).

We consider several implications of these results including the lack of perfect compatibility between implementations, the lack of good implementations outside of Windows, and the surprisingly good overall performance of OOXML implementations. The interoperability issues are troubling and suggest the need for improved interoperability testing for document formats. The results also highlight the importance of interoperability for open standards in general. Without interoperability, governments will be locked-in to the dominant implementations for either standard and in the process lose many of the benefits that might accrue from adopting an open standard in the first instance.