Non-originalist Originalists: The Nineteenth Amendment and the Fourteenth Amendment‘s Anticaste Principle

Alfred L. Brophy

90 Texas L. Rev. See Also 55

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Professor Brophy responds to the ongoing dialogue concerning Professor Calabresi and Ms. Rickert’s article with his reactions to their originalist argument that the Fourteenth Amendment prohibits sex discrimination as a matter of original public meaning.  He observes a tension between original meaning and original intent and argues that original public meaning may differ from the Framers’ “original expected applications.”  Professor Brophy continues by asking a series of questions to ascertain how the Framers identified, how original meaning is established, and whose meaning governs.  Professor Brophy then observes how the Reconstruction-era amendments were construed broadly at the time and how by the Civil War, Americans had viewed the Constitution as a set of broad principles rather than a “mere set of words.”  Brophy concludes by suggesting potential applications of the Calabresi and Rickert argument.

A Response to a Pretend Solution

Henry E. Hildebrand

90 Texas L. Rev. See Also 1

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In this Response, Chapter 13 Trustee Henry Hildebrand addresses whether the results of Professor Katherine Porter’s study warrant the conclusion that Chapter 13 is merely a pretend solution.  According to Hildebrand, the fact that debtors who failed to complete their Chapter 13 plans did not achieve the goals that they sought to accomplish when they filed for Chapter 13 is not evidence of the systemic failure of either Chapter 13 or the consumer bankruptcy system. Hildebrand argues that Porter’s study is too myopic, focusing only on the experiences of “failed” Chapter 13 debtors while ignoring the positive results that Chapter 13 has achieved for debtors who were able to complete their plans. He also posits alternative explanations for Porter’s results, including the tendency of overconfident debtors to draft unrealistic repayment plans and the failure of Chapter 13 debtors to seeks post-confirmation judicial modification of their plans.  Although he acknowledges that Porter raises valid points about the complexity of the Chapter 13 system and participants’ unrealistic expectations of future financial stability, he argues that these issues apply equally to Chapter 7 debtors and concludes that, absent more probative evidence of systemic failure, they are better solved by providing debtors with increased judicial oversight and legal assistance than by conversion to a single-chapter bankruptcy system.

Replicating the Success of Antitrust Amnesty

Christopher R. Leslie

90 Texas L. Rev. See Also 171

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Professor Christopher R. Leslie responds to Stephen Fraser’s argument that the Department of Justice should use antitrust amnesty as a model for the creation of FCPA self-reporting incentives.

Small Ball

William C. Whitford

90 Texas L. Rev. See Also 9

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Professor William Whitford responds to Professor Porter’s article by concurring with Porter’s conclusion that the current consumer bankruptcy system should be converted into a single-chapter system in order to eliminate the complexity and choice that currently prevents filers from reaching discharge. Concerned, however, that legislative roadblocks might substantially delay the wholesale reform of the bankruptcy system, and conscious of the importance of making bankruptcy discharge more readily available, Whitford proposes a “small ball” solution that can begin mitigating Chapter 13’s potential for harm without the need to wait for an act of Congress. Citing evidence of geographic trends in Chapter 13 filing practices, in terms of both the percentage of consumer bankruptcy cases that are Chapter 13 cases as well as the nature of the Chapter 13 plans that are confirmed, Whitford argues that debtors’ bankruptcy decisions are largely influenced by the legal culture that exists in the judicial district in which they file their cases. Because the incentives created by this legal culture cause attorneys, judges, and bankruptcy trustees to steer debtors into certain bankruptcy plans regardless of needs and preferences of individual debtors, Whitford asserts that local legal culture is a contributing cause of many debtors’ inability to navigate the bankruptcy system to discharge. He concludes by outlining how local legal influences can be identified and eliminated, thereby ensuring that debtors will be steered to Chapter 13 and into certain payout plans only under appropriate circumstances—where the chosen path is that most likely to enable the debtor to obtain discharge.