RICHARD JAMES LAZARUS, Georgetown University Law Center
Email: lazarusr@law.georgetown.edu

Climate change may soon have its "lawmaking moment" in the United States. The inherent problem with such lawmaking moments, however, is just that; they are "moments." What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so for environmental law. Subsequent legislative amendments, limited budgets, appropriation riders, interpretive agency rulings, massive delays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement. Climate change legislation is especially vulnerable to being unraveled over time for a variety of reasons, but especially because of the extent to which it imposes costs on the short term for the realization of benefits many decades and sometimes centuries later. To be successful over the long term, climate change legislation will need to include institutional design features that insulate programmatic implementation to a significant extent from powerful political and economic interests propelled by short term concerns. Such design features should include a variety of asymmetric precommitment strategies, which deliberately make it hard (never impossible) to change the law in response to some kinds of concerns while simultaneously providing avenues for change in response to other longer term concerns that are in harmony with the law's central purpose to achieve and maintain greenhouse gas emission reductions over time.

JASON J. KILBORN, John Marshall Law School, Chicago
Email: 7kilborn@jmls.edu

In 2009, Facts on File will release a major scholarly reference work on public policy in the United States, a three-volume collection entitled Governing America: Major Policies and Decisions of Federal, State, and Local Government. The work will deal with approximately 150 areas of public policy, ranging from abortion to monetary policy, and space exploration to bilingual education, covering not only landmark statutes and major programs at the federal level, but also key executive and judicial decisions and some important policies of state and local governments. This paper is the contribution on bankruptcy law and policy. Beginning with an overview of the goals and policies of bankruptcy in the United States, it traces the development of key issues such as federalism (with the rise of a unified federal bankruptcy law in the 1800s), separation of powers (especially in the allocation of judicial power to the new Bankruptcy Courts in the 1980s), the growing pains in the 1990s relating to both consumer and business bankruptcy, and the most salient themes of the reforms of 2005, especially in terms of their impact on bankruptcy judges, bankruptcy lawyers, and individual debtors. The contribution concludes on a positive note with observations about the renewed U.S. dedication to international cooperation in the new Chapter 15 of the Bankruptcy Code.

JASON J. KILBORN, John Marshall Law School, Chicago
Email: 7kilborn@jmls.edu

This paper (an excerpt from a forthcoming book on cooperation in international insolvency) analyzes the theoretical debate between the two main polar alternatives in the administration of international insolvency (bankruptcy): "territorialism" and "universalism." When financial distress strikes a business with assets and creditors in more than one national jurisdiction, the challenges of insolvency administration are heightened significantly. In the context of domestic insolvency, it is well accepted that individual claimants (and courts) yield to collective enforcement coordinated by one court with jurisdiction over all claims against the debtor's assets. When the challenges of insolvency administration arise in an international context, however, many nations abruptly abandon their support for collective compromise. Nations are less willing in general to subjugate the interests of "local" creditors to a broader compromise with "foreign" creditors, especially if that compromise is managed by foreign authorities. Resistance to cross-border cooperation is most often rooted in (or defended in terms of) appeals to sovereignty. In recent years, however, international practitioners and theorists have begun to make inroads into this "territorial" philosophy and the strictures of national sovereignty. A rapidly solidifying dedication to norms of "universal" cooperation and coordinated international compromise has swept over the cross-border insolvency landscape. This paper discusses the weaknesses of the historical territorial approach, especially in terms of its reliance on theories of sovereignty, thus revealing one perspective on why universalism has gained so much traction in recent legislative, jurisprudential, and practical developments in international bankruptcy (as further explored in the rest of the forthcoming book).

ASH ROUGHANI, California State University, Sacramento
Email: ashrocks@gmail.com

Political reform is a seemingly paradoxical concept, but it also happens to be a category of public policy. Political reform is paradoxical in the sense that political systems are inherently political, so any attempt to make these systems apolitical is fraught with false assumptions. Yet, reformers have advocated for a myriad of public policies they allege would reform our system of democratic governance. While political scientists have studied these policies at the idiosyncratic level, no body of research exists that takes an aggregate view of these policies. I begin to bridge this knowledge gap by distilling the policy goals of modern political reform attempts in California. To accomplish this task, I analyze the arguments in favor of political reform ballot measures placed before voters from 1970 to 2008. I find that the concerns of highest priority to reformers are empowering citizens, reducing the influence of special interests, reducing the disproportionate power of incumbents, political parties, or party leaders, enhancing electoral representation, and promoting more effective policymaking. I then discuss the prospects for achieving these goals through public policy.

MARK J. ROE, Harvard Law School, European Corporate Governance Institute (ECGI)
Email: mroe@law.harvard.edu

A long-lived inquiry among American corporate law scholars has looked at the nature of state competition to issue corporate charters and how that competition affects the nature of corporate law. After a century of thinking that states compete for corporate chartering revenues, a revisionist perspective has emerged in which states do not compete for chartering revenues, leaving Delaware alone in the interstate charter market.

I here use industrial organization concepts to better illuminate this competitive setting. Even if no other state challenges Delaware for the reincorporation business, it still must operate in three key competitive arenas. First, it must attract firms to reincorporate away from their home states. The dynamism of American business interacts with even a lackluster state-based corporate chartering market to create a broad avenue of chartering competition, as its business base is persistently eroding as firms merge, close and restructure. Second, a once-and-for-all exit of corporate America to another state or the awakening of a dormant competitor is not impossible. I outline what might motivate one or the other. Similarly, and third, Delaware has reason to fear federalization of core elements of its corporate law even if no other state actively competes for charters. A reputation for bad decisionmaking (or bad decisionmakers) could impel Congress to displace Delaware, in whole or in part, perhaps as an excuse during an economic downturn. While the odds of full displacement are low, Sarbanes-Oxley shows us that the odds of substantial partial displacement are not.

These ideas have parallels in the industrial organization, antitrust literature on contestable markets: a single producer can dominate a market, but, depending on the nature of its technology and its market, it could lose its market share overnight or suddenly face a new entrant if the incumbent missteps badly. Hence, it has incentives to act like a competitor on some issues, or knows it must provide a package that overall is attractive to its primary customers. Delaware could face this kind of catastrophic loss in two dimensions: the traditional horizontal one of a competing state, and the vertical one of federal displacement.