Note

An Efficiency Model of Section 363(B) Sales

Section 363(b) of the Bankruptcy Code allows a corporation to sell assets outside of the ordinary course of business without undergoing the rigorous process of confirming a Chapter 11 reorganization plan. Such a side door may encourage efficiency—enabling a quicker sale of assets that would diminish in value during the lengthy plan confirmation process—but may also encourage waste—enabling managers or creditors to advocate a hurried sale of assets at a sub-optimal price without the protection of confirmation procedures. These sales have become ubiquitous in large corporate reorganizations, but are largely under-theorized.

This Note offers a theoretical approach, deriving a framework analyzing the features of efficient sales. The framework demonstrates that the level and quality of court analysis of such sales drives whether a Section 363(b) sale is efficient or inefficient. Too much intervention increases the costs of a sale such that its value is less than that recoverable under a reorganization plan. Too little or poorly tuned intervention enables under-valuation and agency shirking which likewise reduces the value below the reorganization plan baseline. The framework provides a theoretical calculus from which to determine the optimal level of court intervention and which factors should matter to the decision-making process both by the court and the seller. Among others, the driving factors are the agency costs and the anticipated fluctuation in the value of the asset. This Note finally questions whether there may be a more efficient mechanism to perform the functions of valuation and minimization of agency costs.

Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887

How did nineteenth-century federal legislators imagine Mormon polygamy as they debated and adopted harsh anti-polygamy enforcement laws? Republican anti-polygamists in the Reconstruction era called polygamy and slavery the “twin relics of barbarism,” analogizing polygamous husbands to Southern slaveholders. By the 1880s anti-polygamists in Congress rooted their arguments in Chinese Exclusionism and avoided divisive references to Southern slavery. They compared Mormon polygamy to “despotic” cultural practices popularly associated with Chinese immigrants, like concubinage, prostitution, and “coolieism.” White cultural nationalism mobilized support for the first effective anti-polygamy statutes in 1882 and 1887. These changing representations of polygamy illustrate how the Republican party came to terms with the South’s legacy of slavery and rebellion by embracing a unified white cultural identity. Metaphorical comparisons to Southern slavery and “oriental paganism” not only vilified polygamy, they also justified federal intervention into local affairs. The these vivid metaphors arose from the Republican party’s shifting ideology, not the lived experience of polygamy’s perceived “victims”: the plural wives.

Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases

The First Amendment to the United States Constitution provides for and protects an open marketplace for the competition of ideas. Oliver Wendell Holmes, Jr. said, “the best test of truth is the power of the thought to get itself accepted in the competition of the market[.]” The Internet, where anonymity is easily achieved and speech is cheap, seems to be a broader and more pure manifestation of such a marketplace than previously seen. In the 1990s, the Internet was a new mode of communication and an untested medium for speech. The intersection of First Amendment law and defamation law in cyberspace has since posed a variety of legal questions that continue to develop nearly two decades later. How should the fundamental right to freedom of speech play out over a medium where anyone’s voice can be heard instantaneously by thousands, even millions, of people? Who should be liable for defamatory speech occurring over the Internet? When is it appropriate to compel disclosure of a “John Doe” defendant’s identity in a defamation case? 

Unmasking John Doe contends that to answer those questions requires a precarious balancing act. Using a hypothetical John Doe lawsuit, the note develops and rigorously tests an obscure standard provided by a Louisiana court, arguing that it may provide the key to ensuring that Internet speakers know the limits of protection guaranteed to them and that meritorious claims of defamation will not be prematurely dismissed.

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