Search

James Fenimore Cooper’s first novels form an overarching narrative that attempts to capture the American experience. In The Last of the Mohicans, modeled on the captivity narrative, the civilized European world, bound by formal legal rules, overtakes a wilderness—but not completely, and not always for the better. In The Spy, the protagonist is both a social outcast and a true hero of the American Revolution. In The Pioneers, the central character cannot reconcile himself with the new society taking shape in the United States. Each novel culminates in a trial that turns on the law of war. The novels use the tension between the law of war and the inner moral compass of the hero to understand the fate of the young republic and whether it, too, is destined to suffer the fate of past civilizations, each of which was born, rose, and then fell.

Edward Bellamy’s utopian novel, Looking Backward, was the second most popular American novel of the nineteenth century after Uncle Tom’s Cabin. Bellamy imagines Boston in the year 2000. Equality prevails, while money and law have disappeared. This essay focuses on Bellamy’s account of how literature thrives in this society and shows that it is fundamentally flawed. First, to explain how literature is produced, Bellamy is forced to introduce a form of money into his society after all. Moreover, he has no way to explain why the logic that leads to the introduction of money in order to make literature possible does not apply to producing everything else a well-lived life requires. Second, the literature that Bellamy envisions suggests that his world is no utopia at all. It is instead a dull dystopian place in which neither literature nor art is likely to flourish.

Many current bankruptcy debates—from critical vendor orders to the Supreme Court’s decision last year in Czyzewski v. Jevic Holding Corporation—begin with bankruptcy’s distributional rules and questions about how much discretion a judge should have in applying them. It is a mistake, however, to focus on distributional questions without first identifying the bankruptcy partition and ensuring it is properly policed. What appear to be distributional disputes are more often debates about the demarcation of the bankruptcy partition and the best way to police it. Once the dynamics of establishing and policing the bankruptcy partition are taken into account, there is little room for departures from bankruptcy’s distributional rules. There might be a few rare cases in which maximizing the value of the estate requires it, but these inhabit an exceedingly narrow domain so small and so hard to navigate that they are sensibly handled with a per se rule that prohibits them.

This important volume presents a rich collection of ideas on and insights into the law and economics of contracts. It includes material relevant to a large number of legal fields. Many of the articles are classics that have, over the years, become focal points for continuing debate; others provide an easily accessible account of particular areas. The editor's comprehensive introduction provides an overview of law and economics scholarship in contracts over the past few decades and a portal into an evolving field. The topics include: the economics of contracting; efficient breach and renegotiation; expectation damages and its alternatives; and, default rules and mass markets.

Over the last few years, reorganization practice has undergone a massive change. A new device — the restructuring support agreement — has transformed Chapter 11 negotiations. This puts reorganization law at a crossroads. Chapter 11’s commitment to a nonmarket restructuring with a rigid priority system requires bankruptcy judges to police bargaining in bankruptcy, but the Bankruptcy Code gives them relatively little explicit guidance about how they should adjust when a new practice alters the bargaining environment. This essay shows that long-established principles of bankruptcy should lead judges to focus not on how these agreements affect what each party receives, but rather on how they can interfere with the flow of information needed to apply Chapter 11’s substantive rules.