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ItemThe 1.5 Billion General Motors Recalls at the Dangerous Intersection of Chapter 11, Article 9, and TARP(University of Cincinnati Law Review, 2017) Henry, Sally McDonaldThis article, then, joins other articles' that have examined the power of secured creditors in mega-chapter 11 cases and proposes reforming long-standing practices. Rather than take a theoretical, big-picture approach to the role of secured creditors in chapter 11 cases, this article takes a close look at one extraordinarily successful case in which a $1.5 billion issue went terribly wrong. To understand what happened here, I have read thousands of pages of pleadings, exhibits, and hearing transcripts from the General Motors chapter 11 case relating to the Term Loan. What I conclude is that the typical provisions of mega-case debtor-in-possession financing, which evolved at a time when the law regarding security interests was dramatically different than it is now and when lending syndicates were oftentimes dramatically different than they are now, are antiquated, dangerous models that need to go back to the shop before more unfairness takes place in chapter 11 cases. In order for us to understand the need for change, Part II of the article will review the perfection and termination of security interests and the importance of perfected security interests in chapter 11 cases. Part III of this article will discuss the extraordinary "First Day" and debtor-in-possession financing orders entered in the GM case and the subsequent litigation to recover the money. Part III will also address the continuing controversies regarding the effect of the First-Day orders on the distributions to creditors. Part IV will set forth modest proposals to make it less likely that favored creditors will walk away with a windfall to which they are not entitled. ItemThe 1970 Clean Air Amendments: Federalism In Action Or Inaction?(Texas Tech Law Review, 1974) Kramer, Bruce M.Observes the monumental changes the 1970 amendments made to environmental law. The author praises the dual system of enforcement and variance approval. Moreover, the author believes that a federal presence limits leniency in regulating clean air practices. In fact, the federal government taking control over clean air policies is in response to state and local government failure to ”clean up air.” ItemThe 1970 Clean Air Amendments: Federalism in Action or Inaction?(Texas Tech Law Review, 1974) Kramer, Bruce M.The article will consider in depth only that part of the Clean Air Act that deals with stationary sources, and more specifically that portion dealing with federal enforcement of state implementation plans. Professor Kramer precedes this discussion with the legislative battle that occurred in the years leading up to the passing of the Clean Air Act. Item1975 Amendments to the Texas Business Corporation Act and the Texas Securities Act(Texas Tech Law Review, 1975) Bateman, Hal M.Professor Bateman discusses recent changes to the Texas Business Corporation Act and the Texas Securities Act, including changes to restrictions on transferability of shares, close corporations, corporate formalities, option exemptions, State Securities Board, exempt transactions, and receiverships. ItemThe 1977 Clean Air Act Amendments: A Tactical Retreat From the Technology-Forcing Strategy?(Urban Law Annual, 1978) Kramer, Bruce M.The Clean Air Act of 1970 utilized the innovative concept of health-based standards to achieve a technology-forcing strategy, which meant that protection of the public health could be the sole consideration in either attaining or setting an appropriate standard. However, this technique was strongly opposed for excluding from consideration any economic or technological feasibility issues as well as the social ramifications of its implementation. When applied to air pollution, this strategy necessarily involved an “all-or-nothing” result that forced stationary sources to either develop the technology necessary to limit emissions or be shut down. The Supreme Court’s decision in Union Electric confirmed the technology-forcing mandate and the resulting necessity of stationary source shutdowns in many areas of the country. Congress responded by enacting the Clean Air Act Amendments of 1977, which endorsed the technology-forcing strategy while removing the non-flexible attainment date and expanding the availability of extensions, revisions, and variances. This article considers post- Union Electric litigation involving stationary sources and the original technology-forcing strategy, and analyzes the impact of the 1977 Amendments on the continued viability of the technology-forcing strategy for stationary sources. To some extent any delay, extension, or variance emasculates the technology-forcing strategy. However, faced with the reality of non-attainment and the possible closure of important industrial operations, and apparently heeding Justice Powell's advice in Union Electric, Congress decided that delay was better than shutdowns. Item1995 Revisions to the DTPA: Altering the Landscape(Texas Tech Law Review, 1996) Shannon, Brian D.This Article will explore the various provisions of House Bill 668 and discuss the Bill's revisions to the Deceptive Trade Practices Act's (DTPA) and Insurance Code. In particular, the Article will examine amendments to the DTPA waiver provisions, certain exclusions from coverage under the Act, new causes of action under the DTPA, a rewrite of the DTPA's damages provisions, certain procedural revisions, and a variety of amendments to the Insurance Code. Item2007 Texas Legislative Update: Intestacy, Wills, Trusts, and Related Matters(2008-01) Beyer, Gerry W.An update of the legislative changes regarding selected matters pertaining to Texas wills, trusts, estates, and other related matters. Item2009 Texas Legislative Update: Intestacy, Wills, Trusts, and Related Matters(Estate Planning Developments for Texas Professionals, 2009-07) Beyer, Gerry W.A review of laws enacted during the 2009 Texas legislative session. Topics addressed include wills, trusts, estate administration, intestacy, the estates code, and other estate planning matters. Item2011 Texas Estate Planning Legislative Update(Estate Planning Developments for Texas Professionals, 2011-11) Beyer, Gerry W.A brief summary of laws enacted by the 2011 Texas legislative session. Topics addressed include the Texas estates code, wills, estate administration, trusts, and other estate planning matters. Item2016 The Year In Review: Estate Planning And Probate Law(Texas Bar Journal, 2017) Beyer, Gerry W.A brief update on topics that were explored by Texas courts during 2016. The review covers the major lessons to be learned from the decisions rendered in probate cases during the latter part of 2015 and 2016. Starting with three cases from the Texas Supreme Court. Item2020 Year-end Report on the Judiciary(Pepperdine Law Review, 1997) Baker, Thomas E.Professor Baker reports on his startling “glimpse into the future” of the federal judiciary. Writing as the retiring Chief Justice of the Supreme Court in the year 2020, Professor Baker uses current trends to hypothesize about the impacts of changing demographics, colossal docket growth, federalization of both criminal and civil law, badly-needed appellate court reform and expansion, and, of course, technology. ItemABA Tax Section Comments on Assets-Over Partnership Mergers(2006) Outenreath, AlysonThis article discusses the ABA Tax Section submitted comments concerning the tax treatment of property distributions following partnership mergers. ItemAbandon Chevron and Modernize Stare Decisis for the Administrative State(Alabama Law Review, 2017) Murphy, Richard W.Critics including Justices Gorsuch and Thomas have recently condemned the Chevron doctrine, which requires courts to defer to an agency’s reasonable construction of a statute that it administers, for undermining separation of powers and the rule of law. The House of Representatives, not to be left behind, has passed the Separation of Powers Restoration Act of 2016, which commands courts to conduct de novo review of agency statutory constructions. The Chevron doctrine should indeed be abandoned, but not because it transfers tyrannical power to the executive. Over the last thirty years, an immense amount of confusing case law has evolved detailing whether and how to apply the Chevron two step—which may have one, two, three, or more steps. Viewed as a means to fine-tune deference, this effort has been largely a waste. Notwithstanding overheated charges, there is little reason to think that applying Chevron, as opposed to a supposedly tighter standard of review, such as Skidmore deference, is frequently outcome determinative in significant cases. Although Chevron, with monumental irony, fails as a deference doctrine, it should not be abandoned without replacement because it serves the important function of protecting agencies’ ability to change how they construe their enabling acts over time to reflect new learning. Rather than protect agency flexibility indirectly through the Chevron doctrine, however, it would be far better for courts to accomplish this end directly by limiting their opinions’ precedential force. More specifically, courts reviewing agency statutory constructions should, contra Chevron, pick the constructions they deem best. They should also, however, refrain from giving binding horizontal stare decisis force to their precedents when reviewing later agency efforts to adopt different statutory constructions. Instead, when a court confronts a choice between following its precedent or affirming an agency’s new construction, the court should adopt whichever one is better without stare decisis distorting the inquiry. This transformation of Chevron deference into a judicial duty to keep an open mind would not change many case outcomes, but it would greatly simplify an absurdly complex corner of administrative law. ItemAbandoning Constitutional Standing: Trading a Rule of Access for a Rule of Deference(2009) Murphy, RichardThis short essay examines constitutional standing and its relation to separation of powers in light of the Supreme Court’s 4-1-4 split. ItemAbandoning Standing: Trading a Rule of Access for a Rule of Deference(Administrative Law Review, 2008) Murphy, RichardThe Supreme Court's long struggle over the nature of constitutional standing has taken on new urgency with the addition of Chief Justice Roberts and Justice Alito to the Court. Four justices are now strongly committed to a restrictive approach to standing that invokes separation of powers to bar federal courts from hearing the claims of plaintiffs who assert mere "generalized grievances." These four were just one vote away in Massachusetts v. EPA from blocking judicial review of the legality of EPA's failure to regulate greenhouse gases on the ground that global warming does not cause "particularized" injury. Four justices are strongly committed to a permissive approach that permits widely shared injuries to support standing so long as they are "concrete" enough. And Justice Kennedy's views are somewhere in the middle. This Article uses this 4-1-4 split as an occasion to reexamine constitutional standing and, in particular, its relation to separation of powers. It concludes that neither the restrictive nor the permissive approach to standing can justify reliance on an indeterminate "injury" requirement to create a constitutional bar to judicial access. Nonetheless, the separation-of-powers concerns that motivate the restrictive approach do justify a rule of judicial deference. More specifically, just as Professor Louis Jaffe suggested nearly fifty years ago, these concerns justify a rule that courts should, when resolving "public actions," defer to the reasonable judgments of political branch officials. ItemThe Abiding Importance Of Procrastination In Grading Law-School Final Examinations(Green Bag 2d, 2017) Casto, William R.A short explanation as to why it is statistically better to put off grading student’s final exams. The author includes quotes from Einstein and John Maynard Keynes as well as an explanation from the author’s father on the nature of insurance as proof of position. ItemThe Abolition of Plea Bargaining: A Case Study of El Paso County, Texas(UCLA Law Review, 1987) Weninger, Robert A.This Article reports the results of a field survey of a judicially initiated ban on plea bargaining in felony prosecutions in El Paso County, Texas. The study is based primarily upon personal interviews with participants in the criminal justice process and a statistical analysis of a random sample of 1,395 felony prosecutions commenced in the district courts during the four-year period from 1974 to 1977 – two years when plea bargaining was practiced and two years after implementation of the purported prohibition in late 1975. It also discusses the reasons for judicial dissatisfaction with the prosecutor's explicit policy toward plea bargaining during the period before the ban. After describing plea bargaining practices before this change in policy, the Article reports the impact of the attempted ban on various facets of the criminal process during the subsequent two-year period. The study focuses on the following questions: (1) Is it possible for a system relying principally upon negotiated pleas to be supplanted by a system relying heavily on adjudication through jury trials? (2) In a system without plea bargaining, are there still substantial numbers of defendants who choose to plead guilty? (3) What effect did the prohibition have on the disposition of indicted cases? (4) How did the ban affect charging practices? (5) What effect did the ban have on case processing time? (6) How did the prohibition affect sentencing practices? Before the ban, had longer sentences been imposed on defendants who pleaded guilty than on those who were convicted by a jury? ItemAbortive Reasons and Obscene Standards: Comment on the Abortion and Obscenity Cases(1974) Loewy, Arnold H.In this article, Professor Loewy discusses the doctrinal support (or lack thereof) for the seminal abortion and obscenity cases arising from the 1972 term of the Supreme Court. He discusses the reasoning and arguments used by the Court in cases such as Roe v. Wade, Doe v. Bolton, Miller v. California, Roth v. United States, and others, pointing out the strengths and weaknesses in the doctrinal bases for each argument. He concludes by discussing the contradictory rights established by these two lines of cases.