This Comment addresses the threat posed to the bankruptcy process by creditors whose true economic incentives are not aligned with their disclosed claims. Under current bankruptcy law, these so-called “empty creditors” may actively participate in the debtor’s reorganization without ever disclosing their real economic interests. This Comment begins by exploring the extent to which empty creditors...
Defendant Class Actions and Patent Infringement Litigation
A crisis point is emerging at the nexus of patent law and economics. Patent rights are designed to serve as an incentive to invest in innovation. However, notoriously high litigation costs, a proliferation of invalid patents in the marketplace, and an inability to enforce low-value patents are threatening to inhibit the progress of science and the useful arts. This Comment argues that the...
Damages, Injunctions, and Climate Justice: A Reply to Jonathan Zasloff
This Essay responds to an article by Jonathan Zasloff previously published in the UCLA Law Review in which he suggests that plaintiffs filing nuisance actions to address climate change should seek damages rather than injunctive relief and calculate damages based on a carbon tax. This Essay argues that, because a carbon tax is an estimate of the global damages resulting from greenhouse gas...
Protecting Truth: An Argument for Juvenile Rights and a Return to In re Gault
In the 1967 case In re Gault, the U.S. Supreme Court revolutionized juvenile criminal proceedings by holding that children were constitutionally entitled to legal counsel and the privilege against self-incrimination. In contrast to Miranda v. Arizona, decided the previous year, the Court’s reasoning was not centered on preventing involuntary confessions. Instead, the Court was concerned that...
The Morality of Strategic Default
Responding to the argument that homeowners who strategically default on their mortgages are immoral and socially irresponsible, this Article argues that defaulting on a mortgage contract is not only morally acceptable, it may be the most responsible course of action when necessary to fulfill more important obligations to one’s family.
Harvard and Yale Ascendant: The Legal Education of the Justices From Holmes to Kagan
With the confirmation of Elena Kagan as a justice of the U.S. Supreme Court, eight of the nine sitting justices have graduated from only two law schools—Harvard and Yale. This Article frames this development in the historical context of the legal education of the justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court...
Volume 58, Issue 3
Shooting the Messenger: How Enforcement of FLSA and ERISA Is Thwarted by Courts' Interpretations of the Statutes' Antiretaliation and Remedies Provisions
Two pillars of employment law—the Fair Labor Standards Act (FLSA) and the Employee Retirement Income Security Act (ERISA)—rely on employee complaints to detect and cure violations by employers. However, enforcement of these statutes is undermined by three circuit splits that place employees with personnel duties in an unenviable position: While their job duties require them to report FLSA and...