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The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts

Articles

The current system of administration of the Bankruptcy Code is highly anomalous. It stands as one of the few major federal civil statutory regimes administered almost exclusively through adjudication in the courts—not through a federal regulatory agency. This means that rather than fitting bankruptcy into a regulatory model, the U.S. Congress has chosen to give the courts primary interpretive authority in the field of bankruptcy, delegating to courts the power to engage in residual policymaking.

Although scholars have noted some narrow aspects of the structural exceptionalism of bankruptcy administration, Congress’s decision to locate responsibility for bankruptcy policymaking almost exclusively with …

Selling It First, Stealing It Later: The Trouble With Trademarks In Corporate Transactions In Bankruptcy, Xuan-Thao Nguyen

Articles

Why does AI get two bites of the “Apple” trademark? Should AI be allowed to grant the right to use the trademark “perpetual and exclusive” with the sale of the music division and steal it back for free, ten years later? This article is part of an ongoing and broader inquiry into the intersection of trademark, contract and bankruptcy laws. This article argues that recent bankruptcy decisional law, notably the In re Exide Technologies decision, misunderstands the “perpetual and exclusive” trademark transaction, deeming it as an ordinary “license” when it is truly an outright sale. This article explains that the …

Bankrupting Trademarks, Xuan-Thao Nguyen

Articles

The explosive growth of technology in the last two decades has vastly expanded intellectual property jurisprudence and elevated intellectual property to a heightened status in the marketplace. Indeed, a company's intellectual property assets may now be its most valuable corporate assets. Moreover, the property value of some trademarks is significantly greater than that of the trademark owner's physical assets.

The term “intellectual property” is commonly understood to include patents, trade secrets, copyrights, and trademarks. Yet a paradigm has been constructed and enforced over the last fifteen years wherein only patents, trade secrets, and copyrights are included. The paradigm specifically excludes …