Digital Commons Network^™

Rigid Rideshares And The Driver Flexibility Myth, Seth Goldstein

St. John's Law Review

(Excerpt)

In 2018, Uber, Lyft, and similar organizations spent $224 million to ensure that Proposition 22 ("Prop. 22") passed in California, reclassifying gig workers as independent contractors, but with some rights not typically guaranteed to independent contractors. Through the most expensive ballot measure in U.S. history at that point, Uber and Lyft argued that to preserve flexibility for drivers, they must remain as independent contractors under the law. However, Prop. 22 did not increase driver benefits nor provide any assurances of flexibility. Many workers in California "regret casting their ballots for Prop. 22" and "feel deceived" by Uber and Lyft. …

Protecting Unsanctioned Street Art Under The Visual Artists Rights Act Of 1990, Thomas Goddard

St. John's Law Review

(Excerpt)

Before 2013, artists and art enthusiasts would flock to a dilapidated building in Long Island City to view and engage with a vast collection of graffiti and street art murals. The site was filled with over two decades' worth of murals created by legendary street artists such as "Blade" and "Lady Pink." The building, with artists having free reign to paint on the walls of the 200,000 square foot space, became a mecca for graffiti and public art. The community would come in droves to experience the vibrant art and watch performances by rappers and dancers from around the …

The (Un)Fair Credit Reporting Act: How Courts Have Undermined The Protections Of The Fcra, Jagjot Singh

St. John's Law Review

(Excerpt)

In 2001, George Saenz ("Saenz") incurred a medical bill amounting to $512.31. Thereafter, Saenz failed to make timely payments, and the bill went into debt collection. The debt was sold to NCO Financial Systems, Inc. ("NCO"), a creditor, and "NCO accepted a compromise payment [amount] of $333 [as] full satisfaction." In 2003, Saenz requested a copy of his credit report from Trans Union, a credit reporting agency. The report listed the $512.31 debt as outstanding, in error, which Saenz disputed. Trans Union initiated an automated consumer dispute verification ("ACDV") procedure, a system that compares the credit reporting agency's data …

A Simple Solution To An Infinite Problem: Curbing Arbitration Provisions That Exceed The Scope Of The Federal Arbitration Act, Michael Russo

St. John's Law Review

(Excerpt)

In 2012, Diana Mey opened a new cell phone line with AT&T Mobility LLC ("Mobility"), the AT&T, Inc. ("AT&T") subsidiary responsible for AT&T's mobile services business in the United States. This required Mey to enter into the AT&T Wireless Customer Agreement, which contained an arbitration clause covering "all disputes and claims" "arising out of or relating to any aspect of the relationship[.]" Further, it applied as between each party's respective "subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or Devices under this or prior Agreements …

Low-Income Litigants In The Sandbox: Court Record Data And The Legal Technology A2j Market, Claire Johnson Raba

St. John's Law Review

(Excerpt)

Katrina was a community college student with two children, trying to juggle work, childcare, and school. During class in the spring of 2018, her phone buzzed incessantly. She looked down to see a message from her roommate saying a process server had shown up at the house to deliver a summons and complaint, naming Katrina in a lawsuit filed in county court by a debt collection company she had never heard of. Katrina turned to the internet for help and found herself overwhelmed with advertisements that began to pop up in her social media feeds trying to get her …

Problems With Authority, Amy J. Griffin

St. John's Law Review

(Excerpt)

Judicial decision-making rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Because weight-of-authority rules are largely informal and almost entirely unwritten, we lack a comprehensive account of their content. This raises serious questions—sounding in due process and access to justice—about whether judicial decision-making rests ultimately on judges’ arbitrary and unexamined preferences rather than transparent and deliberative processes. These norms of authority are largely invisible to many, including parties appearing before the courts. They govern the …

Examining Patent Eligibility, Charles Duan

St. John's Law Review

(Excerpt)

A firestorm of debate has surrounded the Supreme Court of the United States’s 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International on the doctrine of patentable subject matter eligibility under 35 U.S.C. § 101. As the Court’s leading articulation of doctrine, which generally excludes from patenting abstract ideas, laws of nature, and natural phenomena, Alice has been criticized as unpredictably vague and overly constrictive of patentability, with the effect of “decimating” patents, innovation, technological investment, and even the United States’ competitiveness against other nations. To support these criticisms and calls for reform, scholars and practitioners have frequently …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

St. John's Law Review

(Excerpt)

Half a century ago, Joseph Davis Farrar sued six defendants for seventeen million dollars. Farrar had owned and operated a school for troubled teens, and after one of the students died, the State of Texas obtained a temporary injunction that closed the school. Farrar alleged that the defendants—including William P. Hobby, Jr., the lieutenant governor of Texas—had violated his civil rights in connection with the closure. After ten years of litigation, a jury ruled in favor of five of the six defendants, but it “found that Hobby had ‘committed an act or acts under color of state law that …

Rigid Rideshares And Driver Monitoring, Seth D. Goldstein

Student Scholarship

(Excerpt)

Since 2018, Uber has submitted applications for numerous patents that use algorithms to “define” safety. These patents “calculate” safety through multiple factors, including crime reports and statistics, news databases, academic databases of reports of violent conflicts in a location, the car’s condition, how often the driver swerves, and “social media.” These machine-learning models attempt to predict “the likelihood that a driver will be involved in dangerous driving or interpersonal conflict.” Drivers are generally outraged by these patents and have commented that these recorded metrics will be “used to manipulate and influence” driver behavior. There is merit to this fear. …

Section 546(E) Safe Harbor Provision Applies To Transactions Involving Private Securities, Nino Aspanadze

Bankruptcy Research Library

(Excerpt)

A bankruptcy trustee may not avoid a margin or settlement payment made by, to, or for the benefit of a financial institution (or another covered entity) when the payment is made in connection with a securities contract as defined in section 741(7) of title 11 of the United States Code (the "Bankruptcy Code"). "A transfer is ‘in connection with' a securities contract if it is 'related to' or 'associated with’ the securities contract.' A bankruptcy trustee may avoid a covered transaction only if it was made with actual intent to hinder, delay, or defraud creditors. The purpose of Section …

Chapter 5 Avoidance Actions Can Be Sold As Property Of The Estate, Enrica Brook

Bankruptcy Research Library

(Excerpt)

Many courts, including the Fifth, Seventh and Ninth Circuits, have found that avoidance actions, under Chapter 5 of the Bankruptcy Code, are property of the estate. Section 541(a)(1) of the Bankruptcy Code defines property of the estate as "all legal or equitable interests of the debtor in property as of the commencement of the case," and section 541(a)(7) states that "[a]ny interest in property that the estate acquires after the commencement of the case" is estate property. The Supreme Court has interpreted the definition of "property of the estate" broadly, finding section 541(a)(1) can be read "to include in …

Equitable Mootness Doctrine Seems To Be Restricted In Application To Complex Reorganizations, Jenna Marshiano

Bankruptcy Research Library

(Excerpt)

The issue in this article is when an appeal from a bankruptcy court order is equitably moot. As to be discussed further infra, generally, courts seem to apply equitable mootness only in complex reorganizations, and there seems to be a trend of restricting the application of the doctrine.

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Equitable mootness is similar to the concepts of waiver, forfeiture, or even estoppel. The underlying principle of this doctrine is that after time has passed since the implementation of an equitable judgment, the relief that an appellant seeks on appeal becomes "impractical, imprudent, and therefore inequitable." Further, courts aim …

How Courts Differ In Applying The Countryman Test To Determine If Settlement Agreements With Sequential Performance Are Executory Contracts Under Section 365 Of The Bankruptcy Code, Shannon Mcgarr

Bankruptcy Research Library

(Excerpt)

Settlement agreements will often contain sequential responsibilities, meaning that one party’s obligations are not due until the other party’s obligations are fulfilled. While such settlement agreements are contractual in nature, this does not automatically entitle them to be considered executory contracts under section 365 of title 11 of the United States Code (the "Bankruptcy Code").

Section 365 of the Bankruptcy Code does not define "executory contract." Many courts employ the "Countryman test" which states that "a contract is executory if 'the obligations of both parties are so underperformed that the failure of either party to complete performance would constitute …

Amended Proofs Of Claims That Present A New Request For Relief Could Be Disallowed, Lianna Meehan

Bankruptcy Research Library

(Excerpt)

When a creditor seeks to amend a proof of claim after the bar date has passed with an amount different to that provided in the original proof of claim, courts engage in an equitable analysis of multiple factors to determine whether to grant or deny the motion to amend. Under certain circumstances, Bankruptcy Rule 9006(b)(1) gives creditors an opportunity to file a proof of claim after the bar date has passed.

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This memorandum examines whether a creditor can amend a timely-filed proof of claim after the bar date has passed with an amount that is unrelated to the …

Insider May Be An Alter-Ego When It Exercises Control Over A Debtor, Delanie Fico

Bankruptcy Research Library

(Excerpt)

Section 101(31) of title 11 of the United States Code (the "Bankruptcy Code") defines an "insider." This definition, however, is not exhaustive. Courts have concluded that certain persons or entities not mentioned in the statute can be "non-statutory" insiders. In certain circumstances, a statutory or non-statutory insider may be the alter-ego of a debtor. As an alter-ego, an insider may be liable for a debtor’s debt. Alter-ego liability may be imposed on an insider who significantly controls the debtor and has committed some form of injustice.

This memorandum discusses an insider’s possible liability for a debtor’s debt in the …

Date For Determining Subchapter V Eligibility, Frederick Giovanelli

Bankruptcy Research Library

(Excerpt)

The Small Business Reorganization Act of 2019 ("SBRA") created Subchapter V of title 11 of the United States Code (the "Bankruptcy Code"). Subchapter V provides an "expedited process for small business debtors to reorganize quickly, inexpensively, and efficiently." To be eligible under Subchapter V, a debtor must satisfy the four requirements listed in section 1182(1) of the Bankruptcy Code. However, even if all four requirements are met, there are four exceptions that exclude a debtor from Subchapter V eligibility. In several instances, creditors have argued that these requirements are continuing obligations, so the debtor’s post-petition actions can revoke their …

Ability To Assume A Contract Over The Objections Of Third Party Beneficiaries Or Counterparty That Is Not Subject To U.S. Personal Jurisdiction., Matthew Hanauer

Bankruptcy Research Library

(Excerpt)

Under Title 11 of the United States Code (the "Bankruptcy Code"), a trustee or a debtor in possession may assume or reject any executory contract and unexpired leases subject to court approval. If a debtor rejects a contract, they breach the agreement. After rejection, neither party is obligated to continue performance, and the counterparty has a general unsecured claim against the debtor. If a debtor assumes an executory contract, then the parties continue to act in accordance with the terms of the contract. To assume a contract, a debtor must cure any defaults, compensate the counterparty for any pecuniary …

Creditors Have Standing To Bring Derivative Actions Against Delaware Llcs In Bankruptcy, John D. Hayes Jr.

Bankruptcy Research Library

(Excerpt)

Delaware limited liability companies ("LLCs") are "creatures of contract" and their corporate structure may vary to resemble corporations, partnerships, or a mix of both. Managers of LLCs—like a director or officer of a corporation—owe fiduciary duties to the entity and its members. Generally, the entity has standing to pursue breach of fiduciary duty claims. It is well established that creditors of a corporate debtor may have standing to pursue breach of fiduciary duty claims against directors through derivative actions. Under Delaware law, the applicable statute does not confer standing for creditors of Delaware LLCs to bring derivative actions on …

Ownership Of Social Media Accounts In Bankruptcy Cases, Garrity Kuester

Bankruptcy Research Library

(Excerpt)

Section 541(a) of title 11 of the United States Code (the "Bankruptcy Code") defines "property of the estate" broadly to include "all legal or equitable interests of the debtor in property as of the commencement of the [bankruptcy] case." Congress did not identify social media accounts as property of the estate under section 541(a)(1) of the Bankruptcy Code. Bankruptcy courts have generally concluded that business social media accounts constitute property interests. As such, these accounts often fall under the purview of the bankruptcy estate.

This memorandum discusses the courts’ analysis of the classification and ownership of social media accounts …

The Timing Of A Debtor's Petition For Bankruptcy Can Determine If A Pending Title Pawn Contract Becomes Property Of A Debtor's Estate, Jack Reilly

Bankruptcy Research Library

(Excerpt)

Section 541 of title 11 of the United States Code (the "Bankruptcy Code") determines whether property comes into a debtor's bankruptcy estate falling under the protection of the automatic stay afforded by section 362 of the Bankruptcy Code. Bankruptcy Code section 541 defines property of the estate as "all legal or equitable interests of the debtor in property as of the commencement of the case[.]" What constitutes a debtor's "legal or equitable interest" in property is determined by state property law, making state law the determining factor in whether a debtor's interest in a specific property constitutes property of …

Good Faith Chapter 11 Filings Require The Debtor To Show Valid Reorganization Purpose And Financial Need For Bankruptcy, Daniella Sesto

Bankruptcy Research Library

(Excerpt)

Section 1112 of title 11 of the United States Code (the "Bankruptcy Code") enumerates a non-exhaustive list of sixteen factors justifying dismissal of a bankruptcy case for lack of good cause, but bankruptcy courts have the authority to consider other factors as they arise and use equitable powers to reach appropriate results in individual cases. Bankruptcy courts have determined that "good faith" is a requirement to remain in bankruptcy, and "bad faith" is among the reasons to dismiss. To date, no court has adopted a universally accepted definition of good faith.

In recent cases, courts have used their discretionary …

Innocent-Spouse Relief And Other Tax Remedies In Bankruptcy, Panayiotis Xenakis

Bankruptcy Research Library

(Excerpt)

Innocent-spouse relief is an equitable remedy provided by Internal Revenue Code section 6015(f), where the Secretary of the Treasury may "relieve [an] individual of . . . liability" if "taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency . . . ." Essentially, it provides a joint-filer who normally is jointly and severally liable for the tax liabilities of his or her spouse relief from liability if it would be inequitable to do otherwise.

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This memorandum addresses: (1) the limits of a bankruptcy court’s …

Service Of A Subpoena Through Alternative Means: Social Media, Taylor Eynon

Bankruptcy Research Library

(Excerpt)

Service of a subpoena via a means besides personal service, i.e., "alternative service," has been "routinely authorized" under Rule 45 of the Federal Rules. The functional purpose of requiring delivery is to "ensure receipt," which then allows the enforcement of a subpoena to be consistent with due process. With the development of new means of communication, however, an emerging issue has become whether service of a subpoena via social media may provide similar "evidence of actual receipt." Many courts have read Rule 45 broadly to allow for service of a subpoena through social media if certain fundamental requirements are …

Whether Electricity Is A "Good" Under 11 U.S.C. § 503(B)(9), Zhiqian Ke

Bankruptcy Research Library

(Excerpt)

Under section 503(b)(9) of title 11 of the United States Code (the "Bankruptcy Code"), administrative expenses should be allowed for "the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debtor’s business." Courts uniformly analyzed the Uniform Commercial Code’s (the "UCC") definition of “goods” in the absence of a definition in the Bankruptcy Code. However, courts are split on whether electricity is a good.

This memorandum will explore the courts' …

Corporate Insider Status As A Badge Of Fraud Under 11 U.S.C. § 548, Aria Lugo

Bankruptcy Research Library

(Excerpt)

Section 101(31)(B)(i) - (vi) of title 11 of the United States Code (the "Bankruptcy Code") outlines a number of parties who are considered corporate insiders. Additionally, courts have identified a class of "non-statutory" insiders, who fall outside of the parties defined in section 101 but are still considered insiders in the context of corporate bankruptcy. In a corporate bankruptcy, who is an insider, and what are the implications of being an insider with respect to fraudulent transfer claims?

This memorandum explores insider liability under chapter 11 of title 11 of the United States Code. Part I identifies the parties …

Claims Agents’ Duties And Rights To Compensation May Be Restricted, Giuseppina Mammoliti

Bankruptcy Research Library

(Excerpt)

In large chapter 11 cases, the number of creditors or claimants may exceed two hundred. Under the Federal Rules of Bankruptcy Procedure, creditors are entitled to notice. It is the role of the Clerk of Court to manage claims and provide notice to creditors. However, due to the notice requirement’s twenty-one-day deadline, it may become burdensome on the Clerk of Court to process claims and provide notice in a timely manner. Therefore, in these large chapter 11 cases, a Claims and Noticing Agent ("Claims Agent") is retained to relieve the clerk of court from claims-management work.

Claims Agents are …

Having Fun While Learning: Pedagogical Techniques For Teaching Contract Drafting, Robin Boyle

Faculty Publications

(Excerpt)

Welcome everyone. Thank you very much for coming. It’s so exciting that we’re all together. I was looking forward to this conference. I’m Robin Boyle and I haven’t been here in a long time, unfortunately. So, it’s wonderful to come back and to see all of you.

My foray into contract drafting began about twenty years ago, when I started teaching Drafting Litigation Documents and Contracts (3 credits), which had a contract drafting component. The school also created a standalone Contract Drafting course (2 credits). The books that I’ve been using over the years have been very helpful. I …

Felix Frankfurter, Collector Of People, John Q. Barrett

Faculty Publications

Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …

Transforming Legal Sex, Noa Ben-Asher

Faculty Publications

Legal sex in the United States is undergoing a dramatic transformation. By "legal sex" this Article refers to various instances in which legal authorities engage in defining an individual's sex, either directly or indirectly. This Article begins by charting this transformation and then draws on this history to rethink the current political moment.

Until around the mid-twentieth century, legal sex was mostly understood as immutable sexual difference between males and females that is biologically determined prior to birth. Groundbreaking scientific and medical theories in the 1950s introduced gender identity as a new way to describe an internal sense of being …

Courts Are Divided On Whether Electric Energy Is A "Good" Under Section 503(B)(9) Of The Bankruptcy Code, Mari Bijimenian

Bankruptcy Research Library

(Excerpt)

Under Section 503(b)(9) of title 11 of the United States Code (the "Bankruptcy Code"), the value of goods received by a debtor in the ordinary course of business, within 20 days before the date of commencement of a case, can be granted administrative priority status. Bankruptcy courts have grappled with settling on a definition of "goods" because neither Section 503(b)(9) nor the Bankruptcy Code at large define "goods." While the definition of "goods" is a matter of federal interpretation because Section 503(b)(9) of the Bankruptcy Code is federal law, "bankruptcy courts have almost without exception looked to the Uniform …