Anthony J. Casey

Bankruptcy Step Zero

In RadLAX Gateway Hotel, LLC v Amalgamated Bank, the Supreme Court’s statutory interpretation focuses on an emerging theme of its bankruptcy jurisprudence: the proper domain of the bankruptcy judge. While one might expect the Court to approach that question of domain as it has for administrative agencies, that is not the approach taken. This article explores the Court’s approach to bankruptcy’s domain. In doing so, we connect three principal strands of the Court’s bankruptcy jurisprudence. The first strand, embodied in Butner v United States, centers on the idea that the bankruptcy forum must vindicate nonbankruptcy rights. The second, most recently addressed in Stern v Marshall, focuses on the limits of bankruptcy judges in deciding and issuing final judgment on the issues before them. Bankruptcy judges must limit themselves to deciding issues central to the administration of the bankruptcy process. RadLAX is the continuation of a third strand that makes it plain that the Court reads ambiguous provisions of the Bankruptcy Code to narrow the range of decisions over which the bankruptcy judge may exercise her discretion — at least when the exercise of that discretion might impact nonbankruptcy rights. The resulting bankruptcy jurisprudence is in stark contrast with the Court’s approach in administrative law. This paper attempts to make sense of this state of affairs and connect it with the realities of bankruptcy practice today.

A Framework for Bailout Regulation

During the height of the financial crisis in 2008 and 2009, the government bailed out numerous corporations, including banks, investment banks, and automobile manufacturers. While the bailouts helped end the financial crisis, they were intensely controversial at the time, and were marred by the ad hoc, politicized quality of the government intervention. We examine the bailouts from the financial crisis as well as earlier bailouts to determine what policy considerations best justify them, and how they are best designed. The major considerations in bailing out and structuring the bailout of a firm are the macroeconomic impact of failure; the moral hazard effect of the bailout; the discriminatory effect of the bailout; and procedural fairness. Future bailouts should be guided by principles that ensure that the decisionmaker properly takes into account these factors.

Management in the Age of Machine Intelligence

The purpose of this panel symposium is to explore the implications of machine learning and algorithmic organization on management theory. We have gathered together a diverse collection of scholars ...

Self-Driving Contracts

Ex post gap filling is a central function of contract law. This is about to change. Predictive capabilities created by big data and artificial intelligence increasingly allow parties to draft contracts that fill their own gaps and interpret their own standards without adjudication. With these self-driving contracts, parties can agree to broad objectives and let automated analytics fill in the specifics based on real-time contingencies. Just as a self-driving car fills in the driving details to get its passenger to a designated end point, the self-driving contract fills in the contract details to achieve the parties’ designated outcome. This development suggests a new focus for the doctrine and theories of contract law. Our primary goal in this Article is to introduce and develop that new focus. For example, self-driving contracts are both complete and incomplete. They are complete in that they specify actions for every contingency. This reduces the likelihood of breach and renegotiation. It also means that notions of efficient breach and ex post hold-up will be of reduced importance in contract law. At the same time, self-driving contracts are also incomplete in ways that render current notions of definiteness and mutual assent irrelevant or at best misleading. Perhaps most importantly, with contracts being interpreted by their own internal software, contract law will have to focus on where that software comes from and how it operates. Markets will arise for third-party vendors who either certify or provide independent contract programming. In some cases, these will be new markets; in others, they will evolve from existing markets such as the market for contract arbitrators. Law will play a role in supporting and overseeing these markets. We explore that role, and how it will differ in markets for contracts between sophisticated parties and in markets for consumer contracts.