Law Commons^™

Federal Bureaucratic Studies, Jesse M. Cross

Faculty Publications

A vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.

To begin that cross-disciplinary conversation, this Article turns to five themes in the …

Changemakers: Elevating Conversations Around Indigenous Peoples' Rights, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Election Obstruction, Jason Marisam

Faculty Scholarship

In 2020 and 2022, multiple Republican county canvassers refused to perform their ministerial duty to approve election returns, obstructing the official certification of the results. The canvassers latched onto false claims of fraud and other conspiracies advanced by election deniers. They eventually relented because of court orders and public pressure. The elections produced official winners, and crisis was averted. But, as long as election denialism rots our political discourse, election obstruction by canvassers will be a persistent risk with significant dangers for our democracy. This Essay provides a brief history of election obstruction by canvassers, examines the modern link between …

The Openness Of Talmud, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

©Ancelling Dr. Seuss, Cathay Y. N. Smith

Faculty Journal Articles & Other Writings

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

Defi: Shadow Banking 2.0?, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still hasn’t fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we’re already facing the prospect o fShadow Banking 2.0in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph–but money is not the same as a photograph. The stakes are much …

Digital Habit Evidence, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …

Regulatory Innovation And Permission To Fail: The Case Of Suptech, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The recent U.S. Supreme Court decision West Virginia v. EPA has cast a pall over the discretion of administrative agencies at a very inopportune time. The private sector is currently adopting new technologies at a rapid pace, and as regulated industries become more technologically complex, administrative agencies must innovate technological tools of their own in order to keep up. Agencies will increasingly struggle to do their jobs without that innovation, but the private sector is afforded something that is both critical to the innovation process, and often denied to administrative agencies: “permission to fail.” Without some grace for the inevitable …

Ukraine's Push To Prosecute Aggression: Implications For Immunity Ratione Personae And The Crime Of Aggression, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Russia’s aggression against Ukraine dates back to its 2014 annexation of Ukraine’s southern peninsula, Crimea. It was Russia’s brazen full-scale invasion of Ukraine on February 24, 2022, however, that captured global attention and put the crime of aggression – the resort to war in violation of the UN Charter3 – in the spotlight.

Are Threats To Impose Financial Sanctions An Effective Approach For The United States To Protect Lgbtq Rights In Africa?, Ryan J. Mcelhose

Emory International Law Review Recent Developments

No abstract provided.

The Public Voice Of The Defender, Russell M. Gold, Kay L. Levine

Faculty Articles

For decades police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations—all of which inflict severe harm on defendants and their …

The (Mis)Uses Of The S&P 500, Adriana Z. Robertson

Articles

No abstract provided.

Severability First Principles, William Baude

Articles

The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This Article proposes a return to first principles. Severability is a question of what …

Conservation Easements: A Tool For Preserving Wildlife Habitat On Private Lands, Robin M. Rotman, Sarah A. Brown, Michael A. Powell, Sonja A. Wilhelm Stanis

Faculty Publications

Conservation easements are an essential tool for conserving private lands, and they have great potential for enhancing wildlife habitat and biodiversity. Private land conservation in the United States is likely to increase in the coming years, in light of Executive Order No. 14,008, issued by President Joseph Biden on January 27, 2021, which set a goal of conserving at least 30% of U.S. lands and waters by 2030 (Executive Office of the President 2021). There is, therefore, a need to evaluate the effect of conservation easements on wildlife habitat and biodiversity and to make recommendations for further enhancing the effectiveness …

Offshore Entanglements, Martin W. Sybblis

Faculty Articles

For decades, scholars have struggled to determine how to deploy laws and legal institutions to spur economic prosperity. But, without knowing which legal rules and institutions to prioritize for a particular social context, the outcomes have been generally unsatisfactory. The case of offshore financial centers provides fresh and compelling new insights into this puzzle. This Article uses the sociological concept of community economic identity (“CEI”) to understand why some offshore financial centers prioritize investments in legal institutions that bolster their offshore finance enterprises while others do not. CEI refers to a community’s shared identity that is linked to a specific …

Corporate Foreign Policy In War, Kishanthi Parella

Scholarly Articles

On February 24, 2022, Russian troops invaded Ukraine. Over a year later, the war has claimed tens of thousands of lives and led to the displacement of millions. In Spring 2023, both Ukrainian and Russian forces prepared new offensives, while the United States committed to providing Ukraine with military tanks—a move that Russian officials had previously warned would constitute direct involvement in the war. While countries debated how to respond, we also witnessed the privatization of foreign policy as hundreds of companies around the world similarly sought to assist Ukraine or punish Russia using the tools of national foreign policy—humanitarian …

The Application Of 11 U.S.C. § 523(A) To Subchapter V Corporate Debtors Under 11 U.S.C. § 1192(2), Elizabeth Allhusen

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), a debtor can receive a fresh start through a broad discharge of its debts. The general availability of a discharge is limited by section 523(a). Section 523(a) provides that certain types of debts of an individual are excepted from discharge. Section 1192 applies these exceptions in certain small business bankruptcy cases.

In 2019, Congress created Subchapter V of the Bankruptcy Code with the passing of the Small Business Reorganization Act (“SBRA”). The SBRA added provisions to Chapter 11 which apply to small business debtors. Small business debtors, as …

Solvent Debtors Must Pay The Contractual Post-Petition Interest Rate On Unimpaired Claims, Rayla Aberman

Bankruptcy Research Library

(Excerpt)

The default rule in bankruptcy law is that when a debtor files for bankruptcy, interest ceases to accrue on their unsecured claims. This general principle is subject to an exception known as the solvent debtor exception. Under this exception, solvent debtors are required to pay post-petition interest on their outstanding claims, even after filing for bankruptcy. Section 726(a)(5) of the Bankruptcy Code states that solvent debtors must pay interest at “the legal rate.” However, the Bankruptcy Code does not define what the legal rate is, and courts have disagreed over whether it applies to both impaired and unimpaired claimants. …

Creditors Not Precluded From Recovering Debtors’ Commercial Tort Litigation Recovery Through Security Interest, Dana Aprigliano

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides valuable protections for secured creditors. A secured creditor of a chapter 7 debtor is entitled to distribution of any debtor property (or its value) in which they have an interest before any other creditors are paid. Even if the debtor has filed under chapter 11 or 13, a secured creditor is still entitled to receipt of their collateral or its value.

Under Article 9 of the Uniform Commercial Code (“UCC”), commercial tort claims and their proceeds may collateralize secured liens. Hence, creditors believing they are secured by a …

Exceptions To The Rule: When Non-Debtor Entities Are Protected By The Automatic Stay, Isabella Benchetrit

Bankruptcy Research Library

(Excerpt)

In most cases, the automatic stay, under section 362 of title 11 of the United States Code (the "Bankruptcy Code"), stays all creditors from pursuing litigation against debtors. Nonetheless, non-debtor entities can obtain the protection afforded to debtors by the automatic stay in limited circumstances. There are two primary ways of staying litigation against a non-debtor. First, through demonstrating that there are exceptional circumstances to extend section 362 to a non-debtor. Second, through satisfying the standard for an injunction pursuant to section 105 of the Bankruptcy Code.

This Article considers the circumstances by which a non-debtor entity may receive …

A Claims Agent Can Only Profit From The Fees The Clerk Of Court Can Charge, Peter Berkanish

Bankruptcy Research Library

(Excerpt)

In the Southern District of New York, the retention of claims agents is governed by the judicial procedure set forth in section 156(c) of title 28 of the United States Code, for cases under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) that involve 250 or more creditors and equity holders. When a claims agent is retained under section 156(c), the claims agent is acting in the same capacity as the clerk and the services are “limited in scope to those duties that would be performed by a Clerk of Court with respect to …

An Unincorporated Entity Will Be Unable To Recover As A Secured Creditor In Bankruptcy Unless A Court Invokes The Doctrines Of De Facto Corporation Or Corporation By Estoppel, Andrew Braverman

Bankruptcy Research Library

(Excerpt)

Under New York law, an entity that has failed to properly incorporate cannot assume liabilities or acquire rights. As a result, unincorporated entities will typically lack capacity to enter into contractual agreements. Within the context of bankruptcy, this may hinder a creditor’s ability to maximize its recovery.

A creditor that is adversely affected by a lack of corporate recognition will attempt to persuade a court to impose the doctrines of de facto corporation or corporation by estoppel. These doctrines, which are matters of state law, provide unincorporated entities with the rights and obligations that a legally recognized entity would …

Free And Clear Sale Under Section 363 Of The Bankruptcy Code Prevents Successor Liability, Matthew Bopp

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code allows a debtor to sell its assets free and clear of any interest in such property, pursuant to section 363(f) of the Bankruptcy Code. Section 363(f) is used to allow the trustee to sell assets not in the ordinary course of business and to allow purchasers to buy assets without the fear of liability. The Bankruptcy Code does not define the term “interest.” Thus, in interpreting section 363(f), a court must view interest in property expansively. Using section 363(f), courts have extinguished several types of claims and interest in property including: possessory interests, employment related claims, …

Shared Responsibility Payment May Be A Tax Entitled To Priority Under The Bankruptcy Code, Ashton Bryan

Bankruptcy Research Library

(Excerpt)

The Patient Protection and Affordability Care Act ("ACA") provides that certain individuals must maintain minimum essential health insurance coverage throughout the year. If a person under the mandate fails to maintain the required insurance for one month or more, a shared responsibility payment ("SRP") is imposed on the taxpayer. The SRP is collected by the Internal Revenue Service ("IRS").

The Tax Cuts and Jobs Act ("TCJA") eliminated the individual mandate and reduced the SRP to zero for 2019 and thereafter. The SRPs for 2018 and prior years must be reported to the IRS on the applicable tax return. Otherwise, …

Trustee’S Broad Duty To Disclose Information To Interested Parties Under Section 704(A)(7) Of The Bankruptcy Code, Joel Cardoz

Bankruptcy Research Library

(Excerpt)

A trustee has a duty to disclose information to interested parties upon request. Section 1109(b) of title 11 of the United States Code (the “Bankruptcy Code”) includes creditors in the definition of interested parties. Trustees must obtain a court order to be excused from their duty to disclose.

A trustee’s duty of disclosure is “broad and extensive.” Courts are reluctant to excuse the trustee from their duty of disclosure unless the trustee points to a compelling “countervailing fiduciary duty … whose performance is more important than avoiding the harm resulting from withholding the information in question.”

First, this article …

A Majority Of Courts Reject The Application Of The Rules For Disallowance Of Claims Under Section 502(D) To Administrative Expense Claims, Mairead Cooney

Bankruptcy Research Library

(Excerpt)

Since the adoption of title 11 of the United States Code (the “Bankruptcy Code”), courts have struggled with the application of administrative expense claims. Administrative expenses include the actual costs and expenses of preserving the estate after the commencement of a bankruptcy case. Allowance of an administrative expense claim is governed by section 503 of the Bankruptcy Code. A question arises, however, whether the rules of governing the allowance of claims, under section 502, also applies to administrative expense claims.

Under section 502(d), a court may “disallow any claim of any entity from which property is recoverable . . …

Uncertainty Surrounding Takings Claimants’ Rights In Municipal Bankruptcies, Gillian Deery

Bankruptcy Research Library

(Excerpt)

Governments in the United States and its territories have the power to exercise eminent domain so long as they provide property owners with the constitutionally guaranteed “just compensation.” The Fifth Amendment’s Takings Clause specifically prescribes this remedy for parties whose property has been subject to a government taking. “Just compensation” has proven to be an issue in the context of bankruptcy, as bankruptcy law inherently allows debtors to alter their obligations to their creditors.

In response to Puerto Rico’s financial crisis, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), which created a modified version of …

When Deciding Whether To Transfer Venue, Bankruptcy Courts Will Consider Their Discretion To Retain A Case, As Well As The Interests Of Justice And Convenience Of The Parties, Cole Eiber

Bankruptcy Research Library

(Excerpt)

When a debtor decides to file a petition for bankruptcy, one decision to make is in what court, or what jurisdiction to file. However, the debtor’s choice of where to file is not always indisputable. Once a case is filed in a particular court, any “party in interest” may bring a motion seeking to change the venue of the case to an alternate court. Additionally, a court, on its own motion, may transfer a case to an alternate venue. The three statutory provisions that govern transfers of venue are Bankruptcy Rule 1014 (“Rule 1014”), 28 U.S.C. § 1408 (“Section …

Two Valid Approaches For Determining Whether “Taxes” Get Priority In Bankruptcy Cases, Jonathan Fuller

Bankruptcy Research Library

(Excerpt)

In bankruptcies, tax status often effects whether claims are entitled to priority. Thus, debates about whether charges are penalties or taxes date back to the early twentieth century. In 1930, the Supreme Court established that courts are not bound to the characterization given to a charge by the municipality that created it. Rather, courts have a duty to consider the “real nature” and “effect” of the charge. Accordingly, different circuits have implemented different approaches to make these determinations.

This Article examines the ambiguity among circuits regarding charges’ “tax” status and resulting priority entitlement. Part I outlines In re Lorber …

Bad Faith Dismissals In Chapter 7, Myah Drouin

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides a fresh start to the “honest but unfortunate debtor.” Chapter 7 therefore permits a debtor to “discharge their outstanding debts in exchange for liquidating their nonexempt assets and distributing them to their creditors.” Dismissals in chapter 7 are governed by section 707 of the Bankruptcy Code. Section 707(a) governs all chapters of bankruptcy filings and applies when adequate “cause” is shown.

There is currently a circuit split regarding whether a debtor’s lack of good faith constitutes cause for dismissal under section 707(a). Under section 707(a), a case may …