Anthony Casey

Robert Braucher Visiting Professor of Law

Spring 2020

Griswold 307

617-998-1072

Assistant: Jane Reader / 617-495-7719

Biography

Tony Casey is Professor of Law at the University of Chicago Law School. His research examines the intersection of finance and law, with a particular focus on corporate bankruptcy. He has written about topics including asset valuation, creditor priority, the constitutionality of bankruptcy courts, and the enforcement of intercreditor agreements. His broader projects explore business organization, civil procedure, and the litigation of complex business disputes. He also writes about how technological innovation is changing the foundations of our legal system.

Before entering academics, Professor Casey was a partner at Kirkland and Ellis, LLP. His legal practice focused on corporate bankruptcy, merger litigation, white-collar investigations, securities litigation, and complex class actions.

Professor Casey received his JD, with High Honors in 2002 from the University of Chicago Law School. After law school, Casey clerked for Chief Judge Joel M. Flaum of the United States Court of Appeals for the Seventh Circuit.

Kenneth Ayotte, Anthony J. Casey & David A. Skeel, Jr., Bankruptcy on the Side, 112 Nw. U. L. Rev. 255 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Bankruptcy & Reorganization
Type: Article
Abstract
This Article provides a framework for analyzing side agreements among stakeholders in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by a stakeholder to remain silent—to waive some procedural right they would otherwise have under the Bankruptcy Code—at potentially crucial points in the reorganization process. Using simplified examples, we show that side agreements create benefits in some instances. But, in other cases, parties to a side agreement may attempt to extract value from nonparties to the agreement by contracting for specific performance or excessive stipulated damages that impose negative externalities on those nonparties. By using more extreme (and inefficient) remedies, the parties to the agreement can commit themselves to charging more to nonparties who—seeking to avoid the externalities—pay them to breach the agreement. While this can be profitable for the parties to the agreement, it can also lower the collective value of the estate for all stakeholders. We develop a proposal that not only preserves the efficiency benefits of side agreements but also limits negative externalities and opportunities to extract value from nonparties. Where a nontrivial potential for value-destroying externalities exists, the court should enforce the agreements but limit the remedies for breach to expectation damages. Our proposal is superior to the current approach in the case law, which focuses on tougher contract interpretation standards instead of limitations on remedies. We also use our model to determine whether intercreditor agreement disputes should be resolved by the bankruptcy court or by other courts. If the nonbreaching party asks for expectation damages, the bankruptcy court has no particular expertise and should defer to forum selection clauses. Where the nonbreaching party seeks specific performance or stipulated damages, by contrast, our model suggests that the dispute should be resolved exclusively in bankruptcy proceedings.
Aziz Huq & Anthony J. Casey, The Article III Problem in Bankruptcy, 82 U. Chi. L. Rev. 1155 (2015).
Categories:
Corporate Law & Securities
,
Government & Politics
,
Constitutional Law
,
Civil Practice & Procedure
Sub-Categories:
Corporate Bankruptcy & Reorganization
,
Jurisdiction
,
Courts
,
Federalism
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Congress & Legislation
Type: Article
Abstract
This Article reconsiders the implementation of Article III in the bankruptcy context. Recent rulings that limit the delegation of adjudicative power to non–Article III tribunals have generated uncertainty and profuse litigation. The Supreme Court’s Article III cases in this domain lack any foundational account of why the power granted to bankruptcy judges implicates a constitutional problem. This Article identifies more precisely the Article III stakes in bankruptcy. Drawing on the well-tested creditors’-bargain theory of bankruptcy, this Article proposes a tractable, economically sophisticated constraint on congressional delegations. Our proposed account of bankruptcy courts’ permissible domain minimizes Article III and federalism harms—the normative desiderata identified by the Court—while also enabling bankruptcy’s core operations to continue unhindered. To illustrate its utility, the Article applies this account to a range of common bankruptcy disputes, demonstrating that most (but not all) of the Court’s existing jurisprudence is sound in result, if not in reasoning.
Anthony J. Casey, The New Corporate Web: Tailored Entity Partitions and Creditors’ Selective Enforcement, 124 Yale L.J. 2680 (2015).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Banking
,
Economics
,
Risk Regulation
,
Secured Transactions
,
Finance
,
Business Organizations
,
Corporate Law
,
Corporate Bankruptcy & Reorganization
Type: Article
Abstract
Firms have developed sophisticated legal mechanisms that partition assets across some dimensions but not others. The result is a complex web of interconnected affiliates. For example, an asset placed in one legal entity may serve as collateral guaranteeing the debts of another legal entity within the larger corporate group. Conventional accounts of corporate groups cannot explain these tailored partitions. Nor can they explain the increasingly common scenario in which one creditor is the primary lender to all or most of the legal entities in the group. This Article develops a new theory of selective enforcement to fill these gaps. When a debtor defaults on a loan, the default may signal a failure across the entire firm, or it may signal an asset- or project-specific failure. Tailored partitions give a primary monitoring creditor the option to select either project-specific enforcement or firm-wide enforcement, depending on the signal that the creditor receives. In this way, the creditor can address firm-wide risks and failures globally while locally containing the costly effects of project-specific risks and failures. This option for selective enforcement reduces the costs of monitoring and enforcing loan agreements and, in turn, reduces the debtor’s cost of capital. These concepts of selective enforcement and tailored partitions have important implications for legal theory and practice. In addition to providing a cohesive justification for the web of entity partitions and cross liabilities that characterize much of corporate structure today, they also inform how bankruptcy courts should approach a wide range of legal and policy issues, including holding-company equity guarantees, good-faith-filing rules, fraudulent transfers, and ipso facto clauses.

Education History

Current Courses

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Griswold 307

617-998-1072

Assistant: Jane Reader / 617-495-7719