The Aftermath of the Supreme Court’s Purdue Pharma Decision
MEGAN DALTON DOYLE
2024 Supreme Court decision, Harrington v. Purdue Pharma, resolved a decades-long Circuit split regarding nonconsensual nondebtor releases in Chapter 11 bankruptcy cases. On nonpartisan lines, the Court held that Purdue Pharma’s bankruptcy plan could not include a provision releasing the Sackler brothers from the claims pending against them. In doing so, it expressly disallowed nonconsensual nondebtor releases in any Chapter 11 bankruptcy. However, the Court left open an important question: What qualifies as a nonconsensual nondebtor release?
In the months that followed, bankruptcy courts started to promulgate differing opinions regarding such consensual releases. This Note aims to determine what the best next steps are in light of the Supreme Court’s decision. Part I briefly discusses a background on Chapter 11 and the Circuit split regarding nonconsensual nondebtor releases. Part II analyzes the Supreme Court’s Purdue Pharma decision and the unique circumstances surrounding the case. Part III highlights a few lower court decisions of note which occurred in the months immediately following the Purdue Pharma decision. These cases illuminate two different ways to determine “consent” in the context of Chapter 11 bankruptcies: “opt-in” or “opt-out” releases. Finally, Part IV weighs the benefits and disadvantages of “opt-in” and “opt-out” releases and ultimately concludes that such decisions are best left to the Legislature.
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Do Linguistic Canons Matter?
BENJAMIN MINHAO CHEN
For a long time, linguistic canons have been dismissed as dissonant and deficient. But there are ambitions to make linguistic canons guide again. Maxim majoritarianism promises to dissolve opposing canons through the elimination of unsupported pretenders. By empirically identifying the canons that register dominant habits of speech, contemporary jurists hope to bring order to the practice of statutory interpretation.
This Article submits that maxim majoritarianism is futile. It argues that arbitrating between rival canons poses conceptual difficulties that are virtually impossible to resolve. At the same time, it maintains that the co-existence of canon and counter-canon is not necessarily embarrassing. Like practical proverbs, linguistic canons can—and can only—matter if they change beliefs, judgments, and actions—that is, if they are efficacious.
So, do linguistic canons matter? An original experiment tests the efficacy of four classic canons on over 1,500 everyday speakers of English. The last antecedent rule, noscitur a sociis, did not seem to influence how participants construed ambiguous text whereas expressio unius did. These results might be interpreted as further proof of the hollowness of linguistic canons. Yet they also leave open the possibility that linguistic canons can, by signaling avenues of further inquiry, cast fresh light on the ordinary meaning of the law.
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County Government Unbounded
DANIEL B. ROSENBAUM
County governments occupy an awkward dual position in the sub-federal system. They are both local governments (democratic bodies, akin to cities and towns) and state agents (administrative units of state government, akin to departments and agencies). Neither role seems to suit counties particularly well. When acting as local democratic bodies, counties are constrained by state law and severely under-resourced, especially in contrast with municipal governments in their midst. As administrative agents of the state, moreover, counties are saddled with a cascade of responsibilities that the state has delegated to the regional level, duties they must perform without the same support afforded prototypal state agencies. A county’s dissimilar roles thus share one unifying theme. On paper, as the slim legal literature on county governments has observed, counties are passive, static, and relatively powerless actors in both their local and state manifestations. (more…)
Intermediation Effects in Litigation Finance
Adrian Ivashkiv
Litigation finance now bankrolls some of the highest-profile lawsuits, attracting both attention and controversy. Because this new market facilitates lawsuits, it might serve either to promote access to justice or to facilitate frivolous, speculative litigation. This Article offers two insights for that ongoing debate. First, it argues that the market for investable lawsuits may be much smaller than is often imagined, muting its social impact in either direction. Second, it provides new reasons to think that, to the degree that litigation finance facilitates new lawsuits, those suits are unlikely to be frivolous. (more…)
Judicial Ethics, the Supreme Court, and the Rule of Law
Charles Gardner Geyh
It’s a great time to be alive for a judicial ethicist. There aren’t very many of us. We tend to tag along in the shadow of the lawyer ethics people—the cool kids in the schoolyard. Pimply and off-putting though we may be, we have a particular set of skills that, thanks to the Supreme Court and its recent shenanigans, have suddenly acquired relevance as judicial misconduct has been thrust into the national spotlight. So don’t step on my moment. I want to make the most of it. (more…)
Initiating Remedies for Our Unconstitutional and Unlawful Residential Segregation
Richard Rothstein
In 1866, Congress passed a Civil Rights Act outlawing burdens on freed slaves not also imposed on free whites, reasoning that racial discrimination—both public and private—undermined effective emancipation. However, subsequent Supreme Court jurisprudence did not honor or uphold this law and its progeny. Had it done so, the hard-fought promise of equality would not have been broken, the America we know today would not be so racially segregated, and the “badges and incidents” of slavery could have been timely eliminated. The racial segregation of America’s neighborhoods is not, as was long thought, merely the result of private activities such as unethical mortgage lending and the use of racially restrictive covenants. (more…)
Gilead: Municipal Liability for Punitive Damages Under the Fair Housing Act
Robert G. Schwemm
The 1968 Fair Housing Act (“FHA”) has always been understood to apply to local governments, which have proved to be among the most frequent and significant violators of this law, especially in their opposition to housing of particular value to racial minorities and persons with disabilities. Yet not until the Second Circuit’s decision last year in Gilead Community Services, Inc. v. Town of Cromwell did an appellate court approve an FHA-based punitive-damage award against a municipality. Before Gilead, district courts had generally blocked such awards, applying § 1983’s immunities to protect local governments and their officials from the FHA’s full set of remedies. In rejecting this approach, Gilead charts a new course, offering a potential breakthrough for deterring municipal housing discrimination. (more…)
Legal and Policy Responses to Sexual Harassment in Housing
Rigel C. Oliveri
The sexual harassment of low-income women by their housing providers is a clear national problem that has only recently become the focus of coordinated nationwide enforcement efforts by federal agencies, including the Department of Justice. While these developments are welcome, the problem requires proactive responses as well. (more…)
Eliminating Extratextual Exemptions from the Fair Housing Act
Stacy E. Seicshnaydre
The Supreme Court has held that the language of the Fair Housing Act (“FHA”) is “broad and inclusive,” and the Court has given it a broad construction. Correspondingly, the traditional interpretive canons suggest that courts must construe exceptions narrowly. However, some courts have restricted coverage under the FHA by broadly reading an exception or by inferring an exception. (more…)
Revisiting Geography and Sovereignty in the Digital Age
Melvin J. Kelley IV
Fair housing advocates have already brought successful lawsuits challenging the use of property technology (“PropTech”) where it has been found to perpetuate or replicate discriminatory practices in a range of contexts including the use of automated screening tools to evaluate prospective tenants. While substantive interventions in unlawful exclusions and differential treatment via PropTech are laudatory, this Article argues that these steps do not go far enough and moreover, that insufficient attention has been paid to the procedural implications of the federal Fair Housing Act (“FHA”) as a source of ex ante enforcement. (more…)