Roberta Karmel and the Brooklyn School

In this contribution, Professor Janger describes Roberta Karmel’s extraordinary contributions to the intellectual, scholarly, and institutional life of Brooklyn Law School

Reviving the Realist Restatements and the Common Law Codes: Neil Cohen and the Grand Style

The “Second” Restatements and the Uniform Commercial Code have shaped the sensibility of lawyers and law students for the last half century. Both projects were anti-formal at their core, articulating pragmatic principles to guide judicial decision making without necessarily determining the outcome. Recent jurisprudence interpreting the Restatements, as well as efforts to update both sets of instruments, have taken a formalist turn. As examples, this essay will consider judicial interpretations of § 402A of the Restatement (Second) of Torts where internet platforms like Amazon are involved. Then it will consider the tortured and recently concluded experience in connection with the Restatement (Third) of Contracts – Consumer Contracts. Finally, it will offer an appreciation of Neil Cohen, the draftsman, and describe his crucial role in the most recent round of Restatements and UCC revisions

Enterprise, Liability, and Insolvency: An Essay in Honor of Aaron Twerski

Modern tort law links concepts of duty, duty of care, causation, and compensatory damages in a manner that, it is hoped, simultaneously communicates moral suasion, redresses wrongs, and incentivizes “reasonable” socially appropriate behavior. Deterrence and corrective justice differ fiercely about the scope of and rationale for liability, but both assume that tortfeasors are good for their debts (or at least insured). This is not always the case. Sometimes, debtors are insolvent. Bankruptcy law provides individuals with a route to a fresh start, and this paper considers the relationship between modern tort law and the discharge of debt in bankruptcy. The concept of a bankruptcy discharge—the “fresh start”—has deep historical roots in the idea of the “honest but unfortunate debtor.” However, recent high-profile bankruptcy cases involving mass torts have signaled to the world that something is amiss. A short list of harms, discharged in bankruptcy, include opioid addiction, allegedly carcinogenic baby powder, and sex abuse (in churches, gymnastics, and the Boy Scouts). Chapter 11’s goal of value maximization through continuation of the business enterprise is in tension with tort law’s goals of internalization and redress. This Article first links the bankruptcy power to grant global resolution of mass tort liability to the existence of financial distress. It then fleshes out the concept of “good faith” and what it means to “deserve” a bankruptcy discharge. It proceeds in four steps. First, this Article explains the utility of and common justification for granting a mandatory discharge in mass tort cases in both bankruptcy and limited fund class actions under Rule 23 of the Federal Rules of Civil Procedure. Second, it evaluates the first and second J&J talc filings in light of that standard and finds that neither passes the straight-face test. Third, it takes a dystopic look beyond the bankruptcy law silo to consider the relationship between insolvency and recourse in tort law. Lastly, this Article posits the proper relationship between bankruptcy law and recourse in tort by describing what it means to be an “honest but unfortunate enterprise” entitled to “global peace.

SYMPOSIUM: CONSUMER WELFARE MARKET STRUCTURE AND POLITICAL POWER

Two competing visions dominate the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-classical approach is associated with Robert Bork and the Law and Economics Movement. The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts. Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 drew attention to how pathologies of consumer credit markets could create systemic risk, even (indeed especially) in markets that appeared to be competitive. Internet platforms and so-called “fintech” have reshaped our ideas about market power and its interrelationship with political power. The articles in this symposium volume look deeply at the effect technology has had on consumer transactions, at the politics of antitrust, and at the institutions that regulate and respond to these changes in the marketplace. The Articles in this symposium can be divided in to three groups. The first group look at the effect of financial technology and internet platforms on consumer transactions, highlighting the limits of consumer protection available to purchasers of cars and other consumer goods over internet platforms. The second group looks to antitrust law and considers how both income inequality and technology have changed the political economy of antitrust. Third, the last Article by Anne Fleming takes a historical look at the institutional question of enforcement through litigation