Hauerwasian Christian Legal Theory

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like. After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy

State Bankruptcy from the Ground Up

The nineteenth-century English poet William Wordsworth famously defined poetry as the spontaneous overflow of powerful feelings ... recollected in tranquility. 1 By this definition, there is something a little poetic about the recent debate as to whether Congress should enact a bankruptcy law for states. In late 2010, as the extent of the fiscal crisis in many states became clear, a handful of commentators and politicians proposed that Congress enact a bankruptcy law for states.2 If Congress does its part by enacting a new bankruptcy chapter for states, one advocate concluded with a somewaht hyperbolic flourish, California governor Jerry Brown will be in a position to do his part by using it. 3 These proposals met immediate, passionate resistance. One law professor denounced state bankruptcy as a terrible idea. 4 [I]f we in fact create ... a state bankruptcy chapter, another critic testified to Congress, I see all sorts of snakes coming out of that pit, as [b]ankruptcy for states could — would cripple bond markets.\u27

Five Years after Dodd-Frank: Unintended Consequences and Room for Improvement

This brief offers a 5-year retrospective on Dodd-Frank, pointing out aspects of the legislation that would benefit from correction or amendment. Dodd-Frank has yielded several key surprises—in particular, the problematic extent to which the Federal Reserve has become the primary regulator of the financial industry. The author offers several recommendations including: clarification of the rules by which strategically important financial institutions (SIFIs) are identified; overhauling the incentives offered to banks; instituting bankruptcy reforms that would discourage government bailouts; and easing regulatory burdens on smaller banks that are disproportionately burdened by the SIFI designation process.https://repository.upenn.edu/pennwhartonppi/1033/thumbnail.jp

After Debt: A Path Forward for Puerto Rico

This Issue Brief summarizes events surrounding the current debt crisis in Puerto Rico and presents a two-step plan for restructuring Puerto Rico’s debt and encouraging more effective governance. This plan draws extensively on the previous experiences of debt crises in municipalities on the U.S. mainland. Step one entails the creation of a financial control board (FCB) for Puerto Rico, monitored by the U.S. federal government but involving significant Puerto Rican representation. Step two would be for Congress either to craft a restructuring framework applicable to all of America’s territories, or to extend the existing bankruptcy laws in Chapter 9 of the Bankruptcy Code (with modifications) to Puerto Rico and its municipalities.https://repository.upenn.edu/pennwhartonppi/1036/thumbnail.jp

The Education of Detroit’s Pension and Bond Creditors

Detroit filing for bankruptcy had significant implications for people beyond the residents of the city. There were consequences for pension beneficiaries and bondholders that call into question the laws that protect pension and bond creditors during municipality financial distress. The future of municipal governance actually would be brighter if pensions and government obligation bonds can be restructured, at least a little, in bankruptcy.https://repository.upenn.edu/pennwhartonppi/1015/thumbnail.jp

The Empty Idea of “Equality of Creditors”

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose. Part I of this Article traces the historical emergence and evolution of the equality norm, first in the federal bankruptcy laws that applied to individuals and small businesses, and then as it diffused (much later) into large scale corporate reorganization practice. Part II describes how easy it has become to circumvent the norm, focusing on five strategies for giving a favored group of creditors a higher payout than other unsecured creditors. Although these evasions could and in some cases should be halted (as shown in Part III), it turns out that equality of creditors is a distraction (Part IV). It contributes nothing to an assessment of the relevant doctrines, and in several contexts seems to have had a pernicious effect. Elsewhere in the law, equality language can provide valuable benefits, such as “telling us that different treatment of people does matter.” Because none of these benefits is present in bankruptcy (Part V), the equality principle should be discarded

A Way Forward for Puerto Rico\u27s Debt Crisis (with transcript)

David Skeel explains the scope of Puerto Rico’s crisis, what’s at stake, and offers a plan to bring the Commonwealth back from the brink. Click link below for transcript

The Corporation as Trinity

In “Corporate Capitalism and ‘The City of God,’” Adolf Berle references Augustine’s theological classic The City of God in service of his contention that corporate managers have a social responsibility. In this Article, I turn to another work by Augustine, The Trinity, for insights into another feature the corporation, corporate personhood. The Trinity explicates the Christian belief that God is both three and one. I argue that corporations have analogously Trinitarian qualities. Much as theologically orthodox Christians understand God to be both one and three, I argue that corporations are best seen as both a single entity and through the lens of their individual managers and shareholders. Part I explores the debate over corporate personhood that was prompted by the Citizen United and Hobby Lobby cases. Part II develops the Trinitarian account of the corporation. After outlining the Trinitarian perspective on corporate personhood, Part III explores its implications for a variety of issues, including the personhood of “closely held” corporations, whether noncorporate entities have personhood, and whether a corporation can have a religious identity. The final section returns to Berle to discuss the current debate over corporate political involvement