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A Less Corrupt Term: 2016–2017 Supreme Court Roundup, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left …

We Need To Talk About Police Disciplinary Records, Kate Levine

Faculty Publications

In March 2017, an employee of New York’s Civilian Complaint Review Board leaked the disciplinary record of Daniel Pantaleo to the media. Pantaleo, the police officer who choked Eric Garner to death in the video that went public and horrified many citizens, is under federal investigation after a Staten Island grand jury refused to indict him for Garner’s death. Legal Aid Society attorneys had unsuccessfully sought the release of his records in the courts for years. The leak of his records is the public face of an important but rarely discussed issue facing police, legislators, judges, lawyers, and scholars who …

The Care And Feeding Of Law Student Research Assistants, Alyssa Dragnich, Rachel H. Smith

Faculty Publications

(Excerpt)
Hiring, training, managing, and mentoring research assistants can be highly gratifying. When it works well, the relationship between a professor and a research assistant (RA) can be a distillation of all the best parts of teaching legal writing. It benefits professor and student. It results in a bond of friendship and collegiality. It produces useful and thoughtful work.

But it can also go horribly wrong. The relationship can be a waste of student and professor time and energy. The professor can feel burdened, rather than assisted. The student can feel confused and underappreciated. As any professor knows who has …

Bankruptcy Courts May Alter Final Sale Orders And Findings Of Good Faith Purchasers, Louis Calabro

Bankruptcy Research Library

(Excerpt)

For many years, a policy of finality has existed in the legal sphere to protect purchasers after a sale has been completed. This policy serves to create stability and predictability for investors and incentivizes activity in the marketplace. In bankruptcy cases, issues of finality are implicated when a debtor engages in an asset sale, and the court grants a final sale order. The purchasing party wants the sale to be final, so courts have promoted the policy of finality to enhance the efficiency and effectiveness of bankruptcy plans. Sometimes, however, an adverse party claims to have an interest in …

Federal Preemption And The Bankruptcy Code: At What Point Does State Law Cease To Apply During The Claims Allowance Process?, Dylan Lackowitz

Bankruptcy Research Library

(Excerpt)

Anything you do in bankruptcy can and will be used against you in bankruptcy. Prior to the commencement of a bankruptcy case, perhaps courts should issue this Miranda-esque warning to the parties. At least, if the bankruptcy court had, Plymouth LLC (“Plymouth”) might have saved approximately $800,000 that it spent acquiring a lien against Princeton LP’s (“Princeton”) vacant office park in the Township of Lawrence, New Jersey. Recently, the United States Court of Appeals for the Third Circuit held that Plymouth’s claim against Princeton in Princeton’s bankruptcy case was disallowed for violating New Jersey’s tax sale law pursuant to …

Creditors Cannot Contract Around Their Fiduciary Duties And Withhold Their Consent From A Debtor To File For Bankruptcy, Samantha Guido

Bankruptcy Research Library

(Excerpt)

Many courts have found that a debtor may not contract away their right to voluntarily file for bankruptcy. However, debtors and creditors have implemented creative measures to avoid this principle. For example, a creditor may seek the appointment of a so-called “blocking director” on a company’s board of directors, who would control the company’s bankruptcy filing. Additionally, some creditors seek a “golden share” in order to have veto power over changes to the company’s charter, including veto power over whether the company can file for bankruptcy. In determining whether these mechanisms are void under public policy, courts will consider …

A Dragnet Clause And A Future Advances Clause Can Reach The Collateral Of A Loan That Has Already Been Repaid, Stephanie Hung

Bankruptcy Research Library

(Excerpt)

This memorandum will explore the secured transactions issues that arose in In re Omni Enterprises. In that case, the Bankruptcy Court in Alaska held that a bank may enforce the security interest of a prior loan that has already been repaid to cure a new loan that was in default. The prior loan was secured by the debtor’s deposit accounts, and contained a cross-collateralization clause and future advances clause; however, the new loan did not mention the deposit accounts at all. When the debtor defaulted on the new loan, the bank argued, among other things, that it continued …

The Nondischargeability Of Government Cleanup Orders, Christina Mavrikis

Bankruptcy Research Library

(Excerpt)

One of the primary purposes of title 11 of the United States Code (the “Bankruptcy Code”) is to provide debtors with a financial fresh start. Upon the filing of a bankruptcy petition by or against the debtor, section 362(a) of the Bankruptcy Code provides that all entities are barred from actions to collect, assess, or recover any pre-petition claims against the debtor. In general, the automatic stay serves to halt any pending legal proceedings against the debtor so that the pre-petition claims can be managed and discharged by the bankruptcy court. There are, however, exceptions to the automatic stay. …

Not My Client, Not My Problem: The Duty Of Attorneys To Non-Clients, Daniel Quinn

Bankruptcy Research Library

(Excerpt)

Pursuant to the Professional Code of Responsibility, lawyers owe a certain legal duty to their clients throughout the span of their representation. In certain circumstances this duty can be extended to non-clients. The issue of liability to non-clients was recently addressed following the actions of Mayer Brown, LLP (“Mayer Brown”), and the resulting malpractice suit filed against Mayer Brown which was based upon Mayer Brown’s inadvertent termination of certain liens granted by General Motors (“GM”) in favor of J.P. Morgan Chase (“JPM”). Specifically, the allegations of misconduct arose form actions in connection with a loan and the related “Term …

Do Foreign Representatives Need To Satisfy The Recognition Requirement?, Parm Partik Singh

Bankruptcy Research Library

(Excerpt)

A foreign representative must obtain recognition of a foreign proceeding pursuant to section 1517 of title 11 of the United States Code (the “Bankruptcy Code”) prior to applying directly to a court in the United States for any relief such as operating the debtor’s business operations in the U.S. or seeking assets and discovery from U.S. entities. However, under section 1509(f), a foreign representative may sue in a United States court to collect or recover a claim which is the property of the debtor without first obtaining recognition. The scope of this exception, though, remains unclear.

This memorandum explores …

The Inconsistent Application Of Section 1113 To Expired Collective Bargaining Agreements, Courtney Creighton Sokol

Bankruptcy Research Library

(Excerpt)

The United States Bankruptcy Code (the “Bankruptcy Code”) allows a trustee a debtor-in-possession (“DIP”) to assume or reject a collective bargaining agreement (“CBA”). Courts are split on whether a trustee or DIP may reject an expired collective bargaining agreement under section 1113 of the Bankruptcy Code. In general, a collective bargaining agreement may be rejected notwithstanding the labor standards afforded to employees by the National Labor Relations Act (“NLRA”). In particular, under the NLRA, an employer that is party to a CBA is obligated to bargain with its employees until the employer either enters into a new contract or …

Debt Collection ‘Versus’ Consumer Protection: The Fdcpa’S Prohibition On False Representations Of The Legal Status Of Debt, Sara Brenner

Bankruptcy Research Library

(Excerpt)

The Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, has dramatically changed the landscape of debt collection for both consumers and debt collectors. Prior to the enactment of the FDCPA, state common law governed informal debt collection, and abusive collection practices were pervasive. Debt collectors were incentivized to engage in abusive collection tactics and consumers had little recourse. As a result, the FDCPA was enacted in order to regulate consumer debt collection and to remedy abuse. The express purpose of the FDCPA is to “protect consumers against debt collection abuses” and to ensure that debt collectors who …

When Are Debtors And Creditors Bound To The Provisions Of Confirmed Reorganization Plans?, Gabriella Labita

Bankruptcy Research Library

(Excerpt)

Generally, when a debtor files for protection under chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”), a plan of reorganization is filed at some point with the bankruptcy court. The court then holds a hearing to determine whether the judge will confirm the reorganization plan. The judge will confirm the plan if it meets the criteria of Section 1129 of the Bankruptcy Code, which requires, among other things, that any payments made in connection with the plan are reasonable. A plan of reorganization is a significant component of a debtor’s emergence from bankruptcy, as it affects …

Limiting The Scope Of The Value Defense Under 11 U.S.C. § 548(C) In Avoidance Litigation, Allison Smalley

Bankruptcy Research Library

(Excerpt)

Today, most people are aware of, or have at least heard of, the notorious Bernard Madoff Ponzi scheme. Other than the scheme originally perpetrated by Charles Ponzi in the 1920s, the man whom the scheme was named after, the elaborate Madoff Ponzi scheme has become one of the most infamous fraudulent schemes of our time. Bernard Madoff operated this scam using newly deposited customer funds to support the business and make “profit” payments to older customers who then withdrew these “profits,” which were in excess of the principal amounts they invested. Essentially, there were no actual profits being made; …

Chapter 11 Liquidation And Its Effect On Collective Bargaining Agreements, Dylan Coyne

Bankruptcy Research Library

(Excerpt)

Sections 1113 and 1114 of title 11 of the United States Code (the “Bankruptcy Code”) allow a debtor to reject its collective bargaining agreements and payment of retiree benefits, subject to certain statutory conditions being met. These provisions apply to companies that employ unionized workers who receive compensation and benefits pursuant to a collective bargaining agreement. Both sections, however, only apply to a debtor that is “reorganizing.” Moreover, courts have held that section 1114, which governs the payment of insurance benefits to retirees, permits modification of obligations under a statute, such as the Coal Industry Retiree Health Benefit Act …

Forum Non Conveniens And Chapter 15 Bankruptcy, Tyler Levine

Bankruptcy Research Library

(Exceprt)

When pursuing a case under Chapter 15 of Title 11 in the United States, Code (the “Bankruptcy Code”) a plaintiff can litigate all claims in a single forum or in certain cases they may be able to pursue additional claims stemming from the same case in a foreign forum. Many parties will want to litigate all of the claims in a single forum and will file a forum non conveniens motion when their adversary tries to pursue claims in multiple forums. Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or …

All Talk, But No Action Leads To The Loss Of Ground Breaking Cancer Research, Nicholas Marcello

Bankruptcy Research Library

(Excerpt)

Each year, the government awards millions of dollars in federal grants to fund scientific research. Despite this huge allocation of resources, the government’s claim in such funded research may be limited should the receiving institution become a debtor in bankruptcy. Last year, the United States Bankruptcy Court for the District of Massachusetts allowed the destruction of government funded research to benefit the debtor estate.

Substantive Consolidation Of Debtor And Non-Debtor Entities, Eileen Ornousky

Bankruptcy Research Library

(Excerpt)

Based on section 105’s grant of equitable powers, bankruptcy courts have the power to substantively consolidate debtors. Substantive consolidation pools the assets of separate legal entities and treats them as one, allowing each entity’s liability to be satisfied out of the common pool. Although it has been accepted that courts have the power to consolidate a debtor with other related debtors, it its less clear when courts can consolidate a debtor with a non-debtor, or if courts have the authority to do so at all.

Even though most courts have determined that they do have the power to substantively …

Confirmed Bankruptcy Plan Supersedes Applicable Finra Rules, Derek Piersiak

Bankruptcy Research Library

(Excerpt)

In the United States, the Financial Industry Regulatory Authority (“FINRA”) is authorized by the SEC to adopt and administer the Uniform Practice Code (“UPC”), the rules governing secondary market securities transactions. UPC Rule 1140 determines which unitholders are entitled to a distribution by setting a record date and an ex-date. The record date is the date fixed by the issuer for the purpose of determining which holders of securities are entitled to receive dividends or other distributions. A debtor can also set a record date in their bankruptcy plan. The ex-date is set by FINRA and is “the date …

Courts Override Underlying Contractual Obligations In The Chapter 11 Surrender And Abandon Of Aircraft Equipment And Vessels, Lisa Strejlau

Bankruptcy Research Library

(Exceprt)

When chapter 11 airline debtors seek to abandon and surrender collateral under a financing agreement, they are not required to do so in any particular condition under the Bankruptcy Code. This leaves the question of who bears the burden of associated costs unresolved. This memo will discuss how courts interpret the issue of costs associated with the surrender and return of aircraft and related equipment.

Financers of aircraft and related equipment receive special privileges under section 1110 of the Bankruptcy Code (“the Code”). Section 1110 permits a party to take possession of an aircraft in the custody of a …

Supervision And Compliance Of Brokerage Firms, Christine Lazaro

Faculty Publications

Supervision is a cornerstone of broker-dealer regulation. It serves a number of important goals: primarily ensuring that the firms follow the governing rules and regulations so that investors can have confidence in the firms with which they do business. Unfortunately, FINRA supervision rules often do not set out specifically how a firm is to supervise its brokers. This article will set forth the general supervision rules governing brokerage firms, as well as the rules that govern specific behavior and conflicts.

In The Shadow Of A Myth: Bargaining For Same-Sex Divorce, Noa Ben-Asher

Faculty Publications

This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article’s central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser’s terminology, they are not “bargaining in the shadow of the law.” Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce.

The Article …

"Dependent Contractors" In The Gig Economy: A Comparative Approach, Miriam A. Cherry, Antonio Aloisi

Faculty Publications

In recent years, lawsuits alleging the misclassification of workers as “independent contractors” rather than “employees” have become widespread in the United States. Determining employee status is important because such status is a gateway to many substantive legal rights. In response, some commentators have proposed an in-between hybrid category just for the gig economy. However, such an intermediate category is not new. In fact, it has existed in many countries for decades, producing successful results in some and misadventure in others. We use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In Italy, …

Nearsighted And Colorblind: The Perspective Problems Of Police Deadly Force Cases, Jelani Jefferson Exum

Faculty Publications

In dealing with the recently publicized instances of police officers' use of deadly force, some reform efforts have been focused on the entities that are central to the successful prosecutions of police–the prosecutor and the grand jury. Some have suggested special, independent prosecutors for these cases so that the process of deciding whether to seek charges against police officers remains untainted by the necessary cooperative relationship between the police department and the prosecutor's office. Others have urged more transparency in the grand jury process so that the public can scrutinize a prosecutor's efforts in presenting evidence for an indictment. Still …

The Sharing Economy And The Edges Of Contract Law: Comparing U.S. And U.K. Approaches, Miriam A. Cherry

Faculty Publications

Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other …

Contemporary Teaching Strategies: Effectively Engaging Millennials Across The Curriculum, Renee Nicole Allen, Alicia R. Jackson

Faculty Publications

(Excerpt)

"Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime." - Chinese Proverb

American Bar Association ("ABA") Standard 314, Assessment of Student Learning, requires law schools to "utilize both formative and summative assessment methods in its curriculum to measure and improve student learning and provide meaningful feedback to students." This article will connect multiple formative assessments to Bloom's taxonomy to demonstrate how law teachers can transform and enhance student learning, while promoting key steps in the self-regulated learning cycle. First, it is imperative law teachers …

Application Of Safe Harbor Provisions To Early Termination Of Swap Agreement, William Accordino Jr.

Bankruptcy Research Library

(Excerpt)

Credit default swap agreements (“swaps”) are contracts between two entities in which the counterparties are effectively taking opposing positions on the credit worthiness of a debt instrument that acts as the collateral underlying the swap. For example, counterparty A makes payments to counterparty B in the hopes that the debtor defaults or a counterparty commits an event of default specified in the agreement, such as filing for bankruptcy. Swaps are generally executory contracts and thus may generally be rejected by a trustee or a debtor in bankruptcy pursuant to section 365 of the United States Bankruptcy Code (“the Code”). …

Non-Dischargeability Of Foreign Student Loans, Andrew Brown

Bankruptcy Research Library

(Excerpt)

Educational loans made, insured, or guaranteed by a governmental unit are not dischargeable in a bankruptcy case, unless the debtor obtains a hardship determination. This is true even if the loan is made, insured, or guaranteed by a foreign governmental unit. The rationale behind making it difficult to discharge student loans via the United States Bankruptcy Code (the “Code”) is to prevent abuses of the educational loan system, specifically students filing for bankruptcy shortly after graduation to discharge their loans.

Various circuit courts have adopted two tests when applying the undue hardship provision of section 532(a)(8). In 1987, the …

Effects Of Veil Piercing, Alter Ego And Substantive Consolidation On Bankruptcy, Lauren Gross

Bankruptcy Research Library

(Excerpt)

At times, bankruptcy can seem like a game of cat and mouse between debtors and creditors. By filing for bankruptcy in the first place, debtors change the rules of the game with various bankruptcy mechanisms, such as the automatic stay provision set forth in section 361 of the United States Bankruptcy Code (the “Bankruptcy Code”). An important inquiry exists in what creditors can to do promote their interests in bankruptcy. An even more important inquiry lies in determining what doctrines may satisfy generally recognized principles of equity for all.

One option for creditors who deal with corporate entities is …

The Possibility Of Discharging Student Loan Debt And Assessing The Differing Standards Applied By The Courts, Maria Casamassa

Bankruptcy Research Library

(Excerpt)

Discharging student loan debt under the United States Bankruptcy Code (the “Bankruptcy Code”) is more difficult than attempting to discharge other types of debt. Although discharging student loan debt is not a simple hurdle to surpass, it is possible in certain circumstances. Under the Bankruptcy Code, student loan debt may not be discharged “unless excepting such debt from discharge . . . would impose an undue hardship on the debtor and the debtor's dependents . . . .” The Bankruptcy Code does not define undue hardship. Congress “left it up to the various Bankruptcy Courts to utilize their discretion …