Law Commons^™

Giant Eagle, Inc. V. Phar-Mor, Inc., Courtney Pasquariello

Bankruptcy Research Library

(Excerpt)

Although under Pennsylvania common law a lessor has a duty to mitigate damages and is unable to claim damages that could have been avoided, no legal proposition exists that an injured lessor who attempts mitigation of damages resulting from a lessee’s misconduct must bear the consequences of a failed effort. Although the lessor received partial mitigation of a claim against a liable lessee, the lessee nonetheless remains liable for his previous breach.

Pension Benefit Guaranty Corporation’S Termination Premiums Constitute Dischargeable Pre-Petition Contingent Claims, Thomas Rooney

Bankruptcy Research Library

(Excerpt)

In Oneida Ltd. v. Pension Benefit Guaranty Corp., the U.S. Bankruptcy Court for the Southern District of New York addressed the issue of whether a debtor’s liability for pension termination premiums (“DRA Premiums”) constituted a pre-petition contingent “claim” and was, therefore, dischargeable pursuant to the debtor’s reorganization plan confirmation. 383 B.R. 29, 32 (Bankr. S.D.N.Y. 2008). The Bankruptcy Court held that the debtor’s liability for DRA premiums was a dischargeable pre-petition “claim” even though the pension termination occurs during the debtor’s chapter 11 case. Id. at 32, 43.

The Bankruptcy Court based its holding on three determinations: (1) …

Non-Claim Status Of Environmental Clean-Up Injunctions Limited To States, Klevis Peshtani

Bankruptcy Research Library

(Excerpt)

Does the equitable right of an individual, whose property has been damaged by the debtor’s pollution, to injunctive clean-up relief constitute a “claim” that may be discharged in the debtor’s Chapter 11 bankruptcy? This was the issue of first impression which the Pennsylvania Bankruptcy Court dealt with in Krafczek v. Exide Corp., No. 00-1965, 2007 WL 1199530, at *1 (E.D. Pa. Apr. 19, 2007). The Krafczek court answered the question in the affirmative, 2007 WL 1199530 at *3, setting new precedent in an already narrow area of Bankruptcy Law upon which other courts had trodden carefully.

This article …

The Exclusive View V. The Non-Exclusive View: Can A Creditor’S Claim Be Dismissed For Failing To Provide Supporting Documentation?, Robert J. Ryan

Bankruptcy Research Library

(Excerpt)

May a creditor’s claim be dismissed simply because he failed to provide supporting documentation in violation of Federal Rule of Bankruptcy Procedure 3001? The answer depends on which jurisdiction the creditor is pursuing its claim in. Courts are currently sharply divided on the issue. If the creditor is fortunate enough to be in a jurisdiction which follows the “exclusive” view, which is the majority rule, the answer to this problem will be yes. However, if the creditor happens to be in a jurisdiction which follows the “non-exclusive” view, which is the minority rule, the answer to this problem will …

Bapcpa Does Not Require The Chapter 13 Means Test In Individual Chapter 11 Cases, Steven Saal

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) was implemented in order to prevent debtors from unjustly shielding value in their estate from deserving creditors and thus abusing the functionality of the federal bankruptcy system. Specifically, one problem perceived to be very prevalent was a practice by individual debtors who would seek to avoid the stringent guidelines of the “means test” in Chapter 13 cases by running for the protection of the more relaxed standards in Chapter 11 cases. The BAPCPA Amendments to section 1129 of the Bankruptcy Code were adopted to institute stricter standards in Chapter 11 …

Clear Channel Outdoor, Inc. V. Knupfer, Thomas Scappaticci

Bankruptcy Research Library

(Excerpt)

An important and traditional power afforded by the Bankruptcy Code to debtors and trustees is the power to sell encumbered property free and clear of any liens or encumbrances. See G COLLIER ON BANKRUPTCY, App. Pt. 44, at 44-529 (Alan N. Resnick et al. eds., 15th ed. rev. 2006). One way in which this power is given to debtors and trustees is through Section 363(f)(3) of the Bankruptcy Code, which provides a mechanism for property to be sold free and clear of any liens. See 11 U.S.C. § 363(f)(3) (2006). Yet, the application of Section 363(f)(3) is not entirely …

Early Retirement Benefits Not Entitled To Severance Priority, Joe Scolavino

Bankruptcy Research Library

(Excerpt)

In Supplee v. Bethlehem Steel Corp (In re Bethlehem Steel Corp.), 479 F.3d 167 (2d Cir. 2007), the Second Circuit Court of Appeals addressed the issue of whether early retirement benefits triggered by severance are entitled to administrative expense treatment. The court held that that early retirement benefits are not entitled to severance priority. While the Second Circuit generally treats severance payments as priority administrative expenses when employment is terminated during the employer’s bankruptcy, Bethlehem determined that lump-sum retirement benefits for which the employee became eligible at termination did not constitute a new benefit earned at termination, …

American Home Mortgage, Holdings, Inc. V. Lehman Brothers Inc., Valerie Sokha

Bankruptcy Research Library

(Excerpt)

The derivatives provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) amendments greatly enlarged the scope of the financial contracts that are shielded from traditional bankruptcy limitations such as the automatic stay and the prohibition on ipso facto clauses. Those exceptions were reaffirmed in a strong anti-debtor opinion in Am. Home Mortg. Inv. Corp. v. Lehman Bros. (In re Am. Home Mortg. Holdings, Inc.), 388 B.R. 69 (Bankr. D. Del 2008). Although Lehman may now regret its victory since it is a debtor in its own bankruptcy case, it succeeded in defeating a number …

Discharge Under The Code For Erisa "Fiduciaries", Devin Sullivan

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code (“Code”) provides debtors with relief from many of their outstanding debts. However, even under the broad protection of the Code, some debts cannot be erased. Pursuant to section 523(a)(4) of the Code, an individual debtor may not discharge any debt for fraud or defalcation (unauthorized appropriation of money) while acting in a fiduciary capacity. 11 U.S.C. § 523(a)(4). The federal courts are currently split on the issue of whether a debtor who qualifies as a “fiduciary” under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 et seq, (“ERISA”) will also qualify as …

Can Software Be A Bankruptcy Petition Preparer?, Thomas Szaniawski

Bankruptcy Research Library

(Excerpt)

Recently, in Reynoso v. United States (In re Reynoso) — a case of first impression for the Ninth Circuit that addressed the intersection of cyberspace and bankruptcy — the court held that a provider of web-based bankruptcy software was a bankruptcy petition preparer (“BPP”) under 11 U.S.C. section 110 and that under California law, the features and functionality of the software went beyond mere typesetting and constituted the unauthorized practice of law. Reynoso v. United States (In re Reynoso), 477 F.3d 1117 (9th Cir. 2007). In re Reynoso is significant because prior to this …

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

Defining Race: The Obama Phenomenon And The Voting Rights Act, Janai S. Nelson

Faculty Publications

This piece publishes remarks delivered at a symposium organized by the Albany Law Review and the Albany Journal of Science and Technology exploring the definition of race. The topic, “Defining Race,” is related to the recent presidential election and, in particular, to Barack Obama's successful candidacy to become the first black President of the United States. Rather than deconstruct, redefine, or explore the definition of race, these remarks explore briefly whether race relations in the electoral arena have changed to such a degree that race and race-based remedies are no longer needed, and what evidence from this presidential election would …

Legal Holes, Noa Ben-Asher

Faculty Publications

(Excerpt)

In the years that followed the events of September 11, 2001, a debate crystallized between those who think that “legal grey and black holes”—which I call simply “legal holes”—are necessary and integral to U.S. law and those who think that they are dangerous and should be abolished. Legal black holes “arise when statutes or legal rules ‘either explicitly exempt[] the executive from the requirements of the rule of law or explicitly exclude[] judicial review of executive action.’” Grey holes, in contrast, “arise when ‘there are some legal constraints on executive action . . . but the[y] are so insubstantial …

A New Look At Judicial Impact: Attorney's Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey Miller, Michael A. Perino

Faculty Publications

Political scientists have long been interested in what impact judicial decisions have on their intended audiences. Compliance has been defined as the lower court's proper application of standards the superior court has enunciated in deciding all cases raising similar or related questions. Most studies find widespread compliance in lower courts, with only rare instances of overt defiance.

This Article attempts to address three questions in the extant judicial impact literature. First, existing studies use rather insensitive measures of compliance and thus may fail to identify instances of subtle resistance to higher court rulings. Second, judicial impact literature has a restrained …

The Language Of Law And The Practice Of Politics: Great Powers, Small States, And The Rhetoric Of Self-Determination In The Cases Of Kosovo And South Ossetia, Christopher J. Borgen

Faculty Publications

If international law is all but irrelevant to international relations why do states spend so much time and effort justifying their actions under international law? The immediate reaction by many is to dismiss this as "cheap talk," a rhetorical fig leaf or simple bluster of little consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages.

This Article seeks to elucidate what …

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

Faculty Publications

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion—which declares that the "spirit" of a statute should trump its "letter"—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's …

Truth And Consequences: What Should A Mediator Ethically Disclose About Her Mediation Style? How Might A Mediator’S Style Compromise A Mediator’S Neutrality?, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Transparency is fast becoming the buzzword of mediation. Part of that transparency includes the ethical obligation of mediators to disclose in a meaningful and comprehensible way precisely how that mediator will conduct the mediation. Yes, mediation consumers have an ethical right to such information so that they may then make informed decisions about which mediator to select. Isn’t that what the long-held mediation tenets of consent and self-determination are all about? Legitimizing this ethical entitlement, the revised 2005 Model Standards for Mediators guides:

A mediator shall conduct a mediation based on the principle of self-determination. Self-determination is the act …

Who Says "I Do"? Reviewing Judith Butler & Gayatri Chakravorty Spivak, Who Sings The Nation-State? Language, Politics, Belonging (2007), Noa Ben-Asher

Faculty Publications

This Book Review offers an analogy between two forms of resistance to legal discrimination by marginalized minorities: singing the national anthem in Spanish on the streets of Los Angeles in the spring of 2006 by undocumented immigrants, and possible future public marriage ceremonies by LGBT people and other marriage outlaws. Based on the conceptual grounds laid by Judith Butler and Gayatri Spivak, and earlier by Hannah Arendt, the Review uses an analogy to the public singing of the anthem in Spanish in order to argue that the performance of public marriage ceremonies by LGBT people and other marriage outlaws may …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

We Can Work It Out: Entertaining A Dispute Resolution System Design For Bankruptcy Court, Elayne E. Greenberg

Faculty Publications

On October 2, 2009, dispute resolution scholars and bankruptcy court jurists courageously began the difficult conversation about the feasibility of an expanded dispute resolution system design for bankruptcy court. This commentary distills that conversation through a dispute resolution system design lens. Dispute resolution system design offers a framework for organizations to more effectively manage and resolve recurring conflicts. The design of a dispute resolution system requires clarifying ideas, elucidating values, prioritizing goals, considering options and incorporating that information into a more workable process to respond to conflict. All the while, the stakeholders and dispute resolution designers work together to clarify, …