Article
Revlon, the well-known cosmetics manufacturer, has labored under a massive debt load since the 1980s, when it was the subject of a classic hostile takeover battle. As with many recent distressed firms, it decided to address its debt not through the Bankruptcy Code and chapter 11, but rather in an “exchange offer.” That is, it offered to buy its old bonds back with an offer of new securities. One implication of its decision to proceed this way was that it was able to pay its retail bondholders much less than its institutional bondholders.
The Trust Indenture Act of 1939 was supposed to protect small bondholders from abuse by issuers and their fellow bondholders. Nevertheless, recent exchange offers have become more aggressive than ever. And academic scholarship has argued that the Trust Indenture Act should be repealed because, allegedly, there are very few individual bondholders anymore.
Leaning against this ancient and illustrious literature, I instead argue that today we need the Trust Indenture Act, and Section 316(b) thereof, more than ever. Indeed, I argue for an expansion of the Trust Indenture Act to provide more robust protection for small bondholders, the disappearance of which I submit has been seriously overstated.
I argue that the Trust Indenture Act should be viewed as a floor, from which Securities and Exchange Commission rulemaking can further develop to animate the spirt of the Trust Indenture Act. In particular, by adapting key concepts from equity tender offers—like the “best price” and “all holders” rules—exchange offers can be made more equitable. In addition, I propose a new two-stage process for exchange offers, which exposes tendering bondholders to some chance that their bonds will not be accepted in the tender, and thus they will have to live with a bond modified by the exit consents, which feature so prominently in modern offers.
by Stephen J. Lubben
Article
In July 2021, a sweeping Executive Order committed the entire U.S. federal government to reining in big business. Dozens of proposed bills at the state level similarly target big business for stricter regulatory treatment. But unlike in past decades, today’s calls to break up and intensely regulate big business do not hinge on harms to consumers qua consumers. Instead, today’s anti-bigness sentiment rests to a large extent on the claim that big is bad because it is ungovernable. Giant corporations with market power treat legal requirements as mere recommendations, and routinely engage in behavior that harms our civil liberties and degrades the environment as long as it maximizes their own bottom line, or so the argument goes. But the “big is ungovernable” claim as currently construed is underdeveloped. In fact, many theoretical and empirical analyses suggest that big means better governability. If “big is ungovernable” is popular not because of the merits but strictly because of a strong anti-bigness sentiment, we could end up with bad policies negating economies of scale.
by Roy Shapira
Article
This Article addresses three AI-based hiring tools that rank and even reject applicants before they get to the interview stage—resume scanning, one-way video interviews, and the use of video games to screen applicants. It analyzes how the use of seemingly neutral AI in recruiting may discriminate against women and on what legal grounds a woman who is not hired might bring a legal claim challenging the use of these technologies. Part I summarizes the AI-based hiring technologies and analyzes the ways in which they might disadvantage women. Part II provides the overall framework for gender discrimination cases involving employment under Title VII of the Civil Rights Act. Part III applies the legal principles and precedents of Title VII law to the use of AI in hiring assessments, and Part IV proposes policy changes to ensure fairness in hiring in an era of algorithms.
by Lori Andrews & Hannah Bucher
Article
As an exception to the longstanding constitutional commitment to keep government out of the business of child rearing, foster care is a site of grave danger of abuse of government power. No credible analysis of the constitutional interests at stake in the foster care system can be undertaken without considering the United States’ shameful history of violating the rights of marginalized families and illegally separating children from their parents and communities. This Article situates Fulton in that historical context and argues that, counterintuitively, conservatives seeking to protect religious minorities and progressives fighting structural racism in the child welfare system have a strong common interest in encouraging foster care placements that preserve family, community, and cultural bonds.
by Chris Gottlieb
Student Note
This Case Note will argue that the Eleventh Circuit was wrong in affirming the opinion of the district court that a weak dog alert is sufficient for establishing probable cause. Though probable cause does not necessarily require that a dog reach a specific final alert, the behavior of the dog indicating the presence of drugs must be based in objectivity, and not based on the kind of subjective interpretations made by the police officers in Braddy. This objective analysis should not be a rigid and defined test, but rather should look to the totality of the circumstances, as described in previous cases from the Supreme Court and the Eleventh Circuit.
by Daniel Kaseff
Student Note
This Case Note will address the ecclesiastical abstention doctrine in In re Diocese of Lubbock. In In re Diocese of Lubbock, the Supreme Court of Texas held that the ecclesiastical abstention doctrine applied and barred the 237th District Court from hearing and ruling upon a defamation suit that involved Deacon Jesus Guerrero and the Diocese of Lubbock: “[T]he substance and nature of [Deacon Jesus Guerrero’s] claims against [the Diocese of Lubbock] will necessarily require the trial court to evaluate whether the Diocese properly applied Canon Law and are inextricably intertwined with the Diocese’s internal directive to investigate its clergy.” In effect, the Supreme Court of Texas showed deference to the Diocese of Lubbock and the Roman Catholic Church in the suit. Part I of this Case Note provides some background information on the application of the ecclesiastical abstention doctrine and neutral principles in prior case law. Parts II and III review the factual background, procedural history, and holding of In re Diocese of Lubbock and emphasize the dissent from Justice Boyd. Part IV discusses why the Supreme Court of Texas should have permitted the application of neutral principles to the defamation suit; not only could the civil courts have made a judgment secular in nature, but they also could have done so without any entanglement in religious doctrine, faith, or the internal affairs of the Diocese of Lubbock. Finally, the Conclusion reiterates the consequences of civil courts failing to apply secular, objective, well‑established legal concepts to disputes involving religious organizations and appeals to such courts to say “what the law is.”
by Kerri A. Matulis
Article
The Takings Clause of the Fifth Amendment to the United States Constitution provides that “private property [shall not] be taken for public use, without just compensation.” While courts and academics have put considerable amounts of effort into discussing the meaning of “taken” or “public use,” they have given far less attention to the phrase “private property.” Notable scholars have provided a set of definitions and frameworks to determine when a particular right qualifies as takings property. However, courts and commentators have yet to define the types of rights that are entitled to constitutional protection with sufficient precision to avoid an inconsistent and inefficient application of the Takings Clause.
This Article argues that, while these definitions of takings property lead to sound and consistent outcomes when applied to traditional rights such as a fee simple absolute or an easement, they produce underwhelming results when tested against less conventional interests. The Article assesses how these frameworks perform with a property interest as elusive as appropriative water rights and provides broader lessons about both takings property and water law. First, it becomes apparent that the existing literature and court opinions have unreasonably sanctified rights in land while decrying other types of interests as non-property by applying inconsistent standards. Second, the analysis of these existing frameworks reveals some critical shortcomings in their design that had not yet been described. To address these issues, this Article proposes a solution that harmonizes some of the central components of existing takings property definitions.
by Luis Inaraja Vera
