What Corporate Veil?

Review of Adam Winkler\u27s We the Corporations: How American Business Won Their Civil Rights

Fine-scale analysis of biomineralized mollusc teeth using FIB and TEM

When it comes to mineral synthesis, there is a lot we can learn from nature. Although we can synthesize a range of materials in the laboratory, the experimental conditions are often constrained to particular ranges of temperature, pH, etc. Biological systems, on the other hand, seem to be able to produce individual minerals and complex composite mineral structures under a variety of conditions, many of which are far from those applied to create their synthetic counterparts. Understanding how nature does this could provide a means to produce novel biomimetic materials with potential applications in a diverse range of fields from medicine to materials engineering

Zombie Energy Laws

This Article traces the development of three legal rules—cost recovery for vertically integrated utilities, the requirement that regulators assess the financial viability of energy projects before issuing a certificate of public convenience and necessity, and the filed rate doctrine—that emerged out of the view that electric power companies should be shielded from market forces. It argues that important elements of these legal rules have become “zombie energy laws.” Zombie energy laws are statutes, regulations, and judicial precedents that continue to apply after their underlying economic and legal bases dissipate. Zombie energy laws were originally designed to protect consumers by, among other things, preventing utilities from exploiting their market power. Today, however, they protect incumbent fossil fuel generators and have provided the legal basis for invalidating billions of dollars of wind and solar projects. Thus, energy laws that emerged to mitigate market power abuses under the old system of utility rate regulation now entrench incumbent market power and are impeding the transition to a cleaner energy system. In this way, zombie energy laws are protecting incumbent energy companies from traditional tort, contract, and antitrust laws that prevent firms operating in ordinary industries from acting anticompetitively. This Article concludes by arguing that the Federal Power Act, which instructs the Federal Energy Regulatory Commission to maintain “just and reasonable” wholesale rates, can plausibly be read to mitigate—and, in some cases, eliminate—the market distortions caused by zombie energy laws. The Act’s meaning should be construed to fit the market structure to which it is being applied

Open Access, Interoperability, and DTCC’s Unexpected Path to Monopoly

For markets characterized by significant economies of scale, scholars and policy- makers o�en advance open-access and interoperability requirements as superior to both regulated monopoly and the breakup of dominant firms. In theory, by compelling firms to coordinate in the development of common infrastructure, these requirements can replicate the advantages of scale without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit-card networks. This Article offers a qualification to this received wisdom. By tracing the Depository Trust and Clearing Corporation’s path to monopoly in the U.S. securities clearing and depository markets, it demonstrates that open-access and interoperability requirements can serve as instruments by which dominant firms obtain and entrench their monopoly power. Specifically, by imposing high fixed costs to connect to common infrastructure, allowing dominant firms to dictate the direction and pace of innovation and investment, and reducing the scope for product differentiation, these requirements can prevent smaller firms from competing with their larger rivals. In these ways, open access and interoperability can exacerbate the very problems they were designed to address. Our analysis helps to explain why important components of our financial infrastructure have become too big to fail. It also helps explain why, despite their highly concentrated structure, U.S. securities clearing and depository markets still exhibit relatively high levels of innovation and in- vestment. More broadly, our analysis offers a cautionary tale for policymakers seeking to employ open-access and interoperability requirements to curb growing market power in Big Tech, social media, finance, and elsewhere. Open access and interoperability are unlikely to constrain market power unless larger firms are unable to dictate decisions about innovation and investment, and unless the costs of building, maintaining, and connecting to common infrastructure are allocated in a way that does not discriminate against smaller firms. Where this is not possible, open access and interoperability are unlikely to forestall monopoly control, though they might still improve market efficiency by exposing incumbents to the threat of new entry

Cargo/Logistics Airlift System Study (CLASS), Executive Summary

The current air cargo system is analyzed along with advanced air cargo systems studies. A forecast of advanced air cargo system demand is presented with cost estimates. It is concluded that there is a need for a dedicated advance air cargo system, and with application of advanced technology, reductions of 45% in air freight rates may be achieved

Cargo/Logistics Airlift System Study (CLASS), Volume 2

Air containerization is discussed in terms of lower freight rates, size and pallet limitations, refrigeration, backhaul of empties, and ownership. It is concluded that there is a need for an advance air cargo system as indicated by the industry/transportation case studies, and a stimulation of the air cargo would result in freight rate reductions

Cargo/Logistics Airlift System Study (CLASS), Volume 1

Current and advanced air cargo systems are evaluated using industrial and consumer statistics. Market and commodity characteristics that influence the use of the air mode are discussed along with a comparison of air and surface mode on typical routes. Results of on-site surveys of cargo processing facilities at airports are presented, and institutional controls and influences on air cargo operations are considered

The Bankruptcy Tribunal

The United States Bankruptcy Code (the Code)1 and the Federal Arbitration Act (FAA)2 are powerful statutory schemes. Each one demands a broad scope of influence and preempts many other fields of law, state and federal. The capacious nature of these statutes creates a challenging tension when they come into conflict. On the one hand, bankruptcy law is in its very essence a collective multiparty dispute resolution procedure that cannot be waived or altered by private contract. On the other hand, the FAA embodies a general federal policy in favor of allowing parties to contract into private dispute resolution procedures. This Symposium focuses on resolving that tension. Doing so requires an examination of important questions about the scope and operation of bankruptcy law.3 In our view, the interaction between the FAA and the Code is a version of a familiar and fundamental bankruptcy problem: When, and under what circumstances, should parties be allowed to opt in or out of the “bankruptcy tribunal” for the resolution of bankruptcy and bankruptcy-related matters? This Article develops a general principle for thinking about that bankruptcy tribunal problem in the corporate bankruptcy context. As a definitional matter, we use “bankruptcy tribunal” to mean a federal court applying the Code and following the procedures commonly associated with bankruptcy cases as opposed to courts in other jurisdictions or in federal courts presiding over cases not brought under the Code. A more formal way to say the same thing is that, in the United States,4 a bankruptcy tribunal is a court exercising jurisdiction under 28 U.S.C. § 1334.5 We consciously avoid the term “bankruptcy court,” which creates a false distinction between a bankruptcy proceeding in a United States Bankruptcy Court and a bankruptcy proceeding in a United States District Court. For our purposes here, the District Court and the Bankruptcy Court are constituent parts of the same bankruptcy tribunal and function in the same role when presiding over bankruptcy matters.6 Our general principle is that the bankruptcy tribunal should be the exclusive tribunal to resolve a dispute if sending that dispute elsewhere would thwart the Code’s purpose of providing a collective forum where parties can coordinate to resolve multiparty disputes that involve distressed firms.7 When a case is brought into the bankruptcy tribunal, bankruptcy rules displace a substantial portion of non-bankruptcy law and private ordering. Because bankruptcy law’s essential function is coordinating a collective muti-party resolution, the displacement of private ordering is predominantly procedural and requires coordination even when that coordination conflicts with the procedures that would exist under non-bankruptcy law.8 To bring the parties toward one global resolution, bankruptcy law brings their substantive claims into the bankruptcy tribunal and subjects them to one set of mandatory procedural rules. The FAA, on the other hand, has no similarly broad unifying purpose. It embodies a preference for private ordering of procedure. It reflects the view that parties should be able to choose for themselves whether future disputes should be resolved through arbitration. But that is the same private ordering of procedure that bankruptcy law must displace to achieve its collective coordinating purpose. This creates an inherent conflict.9 Subordinating the Code to the FAA allows a two-party option to avoid the bankruptcy tribunal. The purpose of bankruptcy law is to address the collective action problems that arise when a firm is in financial distress. Any two parties could use a private arbitration provision to remove from the bankruptcy tribunal a dispute that affects the rights of other parties. Such a removal would be the equivalent of allowing those two parties to force all other claimants to waive their right to have their claims collectively resolved in the bankruptcy tribunal. That is fundamentally inconsistent with the Code’s purpose of coordinating multilateral behavior. As a result, our analysis suggests that the Code must generally trump the FAA in order to remain effective. An alternative rule would gut the Code of its essential function. But the opposite is not true. The FAA still has effect and covers a large and important sphere of contractual disputes even when subordinated to the Code, As we move beyond arbitration and look at bankruptcy law more broadly, we suggest that all questions about whether parties can keep certain disputes out of the bankruptcy tribunal—not just those involving arbitration—can and should be resolved by looking to bankruptcy’s essential purpose of providing a forum in to coordinate the resolution of multiparty disputes. This Article examines the bankruptcy tribunal question in its various forms to show the broad relevance of our principle. For example, tribunal choice is at the heart of questions about arbitration,10 forum selection, third-party releases,11 and the use of entity partitions and voting structures (golden shares and director seats). For each of these examples, the question of whether a proceeding should be inside or outside the bankruptcy system is really a question about governing law and procedure and whether certain parties should be able to opt out of the bankruptcy’s mandatory collective procedures. The questions should be resolved by asking how enforcing a contractual agreement to opt out of bankruptcy affects the collective proceedings. If enforcement would implicate only the interests of the parties to the contract, the contractual opt-out should be respected. On the other hand, if enforcement could prevent third parties from availing themselves of the collective proceeding bankruptcy provides, bankruptcy considerations should prevail and the opt-out should be denied. An additional implication of our framework is that in some situations the law should not only prohibit opt-out but should reach out coercively and bring additional disputes into the bankruptcy tribunal. For example, bankruptcy courts might need the authority to order third-party releases when doing so reduces the opportunism that arises among stakeholder entangled in a distressed debtor’s web of relationships. This Article proceeds in four parts. Part I presents the debate about bankruptcy law’s purpose and how it relates to questions about the bankruptcy tribunal and identifies areas of general agreement about bankruptcy’s essential collective nature, particularly with regard to coordinating behavior among those with claims against the bankruptcy estate. Part II describes the bankruptcy-tribunal problem in the arbitration context. Part III outlines our general principle and applies it to various other bankruptcy tribunal contexts. Part IV considers the more difficult question of when the bankruptcy purpose test justifies expanding the bankruptcy tribunal’s authority to reach disputes that do not directly involve the debtor

Dodd-Frank Is a Pigouvian Regulation

Almost eight years after the passage of Dodd-Frank, financial institutions remain large, complex, and interconnected. Academics and policymakers across the ideological spectrum largely agree that Dodd-Frank has imposed substantial compliance costs on systematically important financial institutions (SIFis) without solving the problem that they are too big to fail. This Note argues that Dodd-Frank\u27s compliance costs have actually served an important regulatory purpose. By analyzing the spinoffs and divestitures that have occurred at eleven SIFis since Dodd-Frank went into effect in 2010, this Note documents the extent to which the Act\u27s compliance costs have led SIFis to shed business lines of their own accord