Law Commons^™

Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions And Treble Damages, Alex B. Long

Scholarly Works

Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute …

Antitrust 2025, Maurice Stucke

Scholarly Works

Antitrust policy in the United States has roughly twenty to thirty year cycles. So if past cycles are reliable indicators of future ones, we are at (or approaching) a new antitrust policy cycle, with 2025 being the approximate midpoint.

Any new policy cycle will be defined by three fundamental questions: a. What is competition? b. What are the goals of competition law? c. What should be the legal standards to promote these goals?

Rather than predict the state of antitrust policy in 2025 (such as more or less cartel enforcement), this Essay maps two scenarios based on these three fundamental …

One New President, One New Patriarch And A Generous Disregard For The Constitution: A Recipe For The Continuing Decline Of Secular Russia, Robert C. Blitt

Scholarly Works

The government of Russia and the Russian Orthodox Church (ROC) - the country’s predominant religious group - recently underwent back-to-back changes in each institution’s respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church–state relations in the Russian Federation.

Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation’s constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine …

Clinical Legal Education At A Generational Crossroads, Dean Rivkin

Scholarly Works

Clinical legal education is at a crossroads. With studies like the Macrate Report, Carnegie Foundation Report “Educating Lawyers,” and Best Practices for Legal Education there is greater focus on experiential learning. Consequently, clinics are at an inflection point regarding their future. Three distinct generations will determine the path forward: Baby Boomers, Generation X, and Millennials. Each generation brings a different set of preferences, biases, perspectives and strengths to the table. Given the changes in legal academia, what will the future hold for clinical legal education?

The following are four essays by clinicians from the three generations. They each relay their …

Should New Bills Of Rights Address Emerging International Human Rights Norms? The Challenge Of 'Defamation Of Religion', Robert C. Blitt

Scholarly Works

The emerging international human rights norm of “defamation of religion,” an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion, as an emerging norm and the current debate over a possible Australian bill of rights, to argue that a well-rounded drafting process. This drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument …

How Do (And Should) Competition Authorities Treat A Dominant Firm's Deception?, Maurice Stucke

Scholarly Works

This Article discusses deception and its potential anticompetitive effects. Since deception lacks any redeeming ethical, moral, or economic justifications, and trust in the marketplace is paramount, multiple laws seek to deter and punish deception. Although the federal antitrust laws seek to deter acts of unfair competition, which historically included a competitor’s deception, some federal courts, recently have erected hurdles for antitrust plaintiffs injured by a monopolist’s deception. Such hurdles are contrary to the Sherman Act's legislative aim, the common law antecedents of the Sherman Act, and other congressional policies. Moreover, the courts’ legal standards for evaluating a monopolist’s deception involving …

Politics Of The Headscarf In Turkey: Masculinities, Feminism, And The Construction Of Collective Identities, Valorie K. Vojdik

Scholarly Works

No abstract provided.

Vacating Chrysler, George Kuney

College of Law Faculty Scholarship

This article examines the Chrysler section 363 transaction and the opinions that approved it. Chrysler may be merely another example of good facts and a crisis making what is, perhaps, bad law, which has been a pattern in the evolution of chapter 11 jurisprudence since the Bankruptcy Code was enacted in 1978. The Supreme Court appears to have recognized this in the Chrysler case and took the opportunity created by the petition for the certiorari to attempt to wipe the slate clean and reestablish the pre-Chrysler status quo. If this was the Justices’ intent, it is not clear that they …

Vacating Chrysler, George Kuney

Scholarly Works

This article examines the Chrysler section 363 transaction and the opinions that approved it. Chrysler may be merely another example of good facts and a crisis making what is, perhaps, bad law, which has been a pattern in the evolution of chapter 11 jurisprudence since the Bankruptcy Code was enacted in 1978. The Supreme Court appears to have recognized this in the Chrysler case and took the opportunity created by the petition for the certiorari to attempt to wipe the slate clean and reestablish the pre-Chrysler status quo. If this was the Justices’ intent, it is not clear that they …

"You Crossed The Fog Line!" - Kansas, Pretext, And The Fourth Amendment, Melanie Wilson

Scholarly Works

This article examines orders recently decided in the District of Kansas to show, circumstantially, that Kansas police are using "fog-line" traffic infractions as an excuse to stop out-of-state cars driven by people of Hispanic ethnicity and to investigate for drug trafficking. If a stop uncovers contraband, the defendant is charged with a crime, sometimes in federal court. At a subsequent hearing to evaluate a defendant’s motion to suppress the contraband, the officer testifies to his reason for the stop – “You crossed the fog line,” “drifted from your lane of travel,” or “failed to maintain a single lane.” The officer …

Something Judicious This Way Comes ... The Use Of Foreshadowing As A Persuasive Device In Judicial Narrative, Michael Higdon

College of Law Faculty Scholarship

With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, …

Something Judicious This Way Comes... The Use Of Foreshadowing As A Persuasive Device In Judicial Narrative, Michael J. Higdon

Scholarly Works

With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, …

In Re Crabtree & Evelyn: "Almost Washed Up", Kristina Chuck, Lin Ye

Chapter 11 Bankruptcy Case Studies

Crabtree and Evelyn (“C&E”) started in 1972 as an outlet of fine soaps from all over the globe. The name was derived from the crabapple tree and John Evelyn who was a Renaissance Englishman who had works on the conservation of forests and timber. Over the almost forty years since then it has expanded what it has to offer from fine soaps to a variety of other products including “personal care products and related accessories, fragrances, comestibles (i.e., food products including cookies, teas and jams), products for the home and gift arrangements.”

It also “manufactures and distributes more …

Death Of A (Used Car) Salesman: An Examination Of The Incredible Auto Sales, Llc Bankruptcy, Alicia Teubert, Melissa Carraso

Chapter 11 Bankruptcy Case Studies

At first glance, the Incredible Auto Sales, LLC (“Incredible Auto”) Chapter 11 bankruptcy appeared fairly standard. A once prospering business found itself in the red trying to keep its inventory stocked, pay its bills, and remain a going concern. On paper, the prospects of reorganization seemed promising. It had nearly $2 million worth of inventory. It had nearly $200,000 worth of machinery, fixtures, parts, and supplies. Plus, there was a market for its product because Incredible Auto was the only Kia MotorsAmerica (“KIA”) dealership in a 250-300 mile radius. However, the Incredible Auto on paper was not the same Incredible …

Tragedy On The Descent: The Ascent And Fall Of Eddie Bauer, Austin Fleming, Bryan C. Hathorn

Chapter 11 Bankruptcy Case Studies

For many entrepreneurs, bankruptcy is the unfortunate end of what began as a business dream. The birth of a business is an exciting time for the entrepreneur, but its death is often a painful process—both for the company's owners and its creditors. Those businesses that choose not to reorganize close their doors forever. However, reorganization can often salvage a business enterprise that is a good one but is impaired by debt, crisis, or simple bad luck.

The goals of the reorganization process are clear—the idea is to produce a viable business enterprise but one not necessarily owned by the original …

Active Ride Shop : Chapter 11 Bankruptcy, Matt Fink, Philip Meyer

Chapter 11 Bankruptcy Case Studies

In 2008, hundreds of people waited in the rain for the grand opening of Active Ride Shop’s new Chico Hills location, its twenty-sixth store and its biggest opening event yet. In the same year, Active was awarded the Surf Industry Men’s Retailer of the Year Award, yet less than a year later the company would file for chapter 11 protection. This paper will explore Active’s financial downturn and resulting chapter 11 case, inform the reader about the workings of the chapter 11 process, and impart an understanding of how the process works in the context of a non-plan sale of …

Appalachian Oil Company, Inc.: A Company's Journey After Running Out Of Gas, Allison S. Jackson, Raymond G. Lewallen Jr., Jennifer T. Mcginn

Chapter 11 Bankruptcy Case Studies

When Appalachian Oil Company, Inc. filed for Chapter 11 protection on February 9, 2009, it marked the end of an era for a company with more than eighty-six years of experience in the petroleum products industry. The company’s failure was attributable to a couple of factors, including the worst financial crisis since the Great Depression and a parasitic parent company. The combination of a lack of operating income and access to credit rendered the company insolvent and unable to continue its operations. Appalachian Oil Company, Inc.’s journey through Chapter 11, however, was unique in that it never reemerged; rather, the …

Don't Mistake The Proxy For The Rule: Alter Ego Liability In Tennessee, George Kuney

Scholarly Works

No abstract provided.

Understanding The New Tennessee Small Business Investment Company Credit Act: Stimulating Economic Growth At The Intersection Of Free Market Capitalism And Government Intervention, Brian Krumm

Scholarly Works

No abstract provided.

Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney

College of Law Faculty Scholarship

The Travelers Indemnity Company v. Bailey, 129 S.Ct. 2195 (2009), presented the Supreme Court with the opportunity to review and decide the issue of whether or not bankruptcy courts have jurisdiction to release non-debtors from claims of other non-debtors that have no impact upon and are not derived from the res of the bankruptcy estate. Instead of reaching the question, however, the Court, in an opinion authored by Justice Souter and joined in by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito, disposed of the case under the principles of res judicata and the bar on collaterally attacking a final …

Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney

Scholarly Works

The Travelers Indemnity Company v. Bailey, 129 S.Ct. 2195 (2009), presented the Supreme Court with the opportunity to review and decide the issue of whether or not bankruptcy courts have jurisdiction to release non-debtors from claims of other non-debtors that have no impact upon and are not derived from the res of the bankruptcy estate. Instead of reaching the question, however, the Court, in an opinion authored by Justice Souter and joined in by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito, disposed of the case under the principles of res judicata and the bar on collaterally attacking a final …

When The Case Gives You Lemons ... Using Negative Authority In Persuasive Legal Writing, Michael J. Higdon

Scholarly Works

No abstract provided.

Estate Planning For The Baby Boomer, Amy Morris Hess

Scholarly Works

No abstract provided.

Yellowstone Mountain Club, Benjamin Signer, Paul Wehmeier, Joseph Whelan

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky Jacobs

College of Law Faculty Scholarship

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970’s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (the “Pound Conference”), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door …

Pareto Negativity: The Enemy Of My Enemy Is Not Necessarily My Friend – Latin Leadership, Coalition Building, And Predatory Globalization, Becky Jacobs

College of Law Faculty Scholarship

This piece reflects upon the significant role of Latin civil society organizations (“CSOs”) not only in that region’s political, social and economic development, but also in the historical trajectory of the U.S. It also questions why there are so few Latino and Latina leaders in transnational CSOs and in the so-called “global civil society” movement (“GCS”), particularly in the movement to resist the predatory effects of globalization. Consider, for example, the citizen-led groups in Latin America such as the cocaleros and campesinos who fought the Bolivian Water and Gas Wars and then elected cocalero Juan Evo Morales Ayma as that …

Constructing Citizenship Without A License: The Struggle Of Undocumented Immigrants In The U.S. For Livelihoods And Recognition, Frances Ansley

College of Law Faculty Scholarship

No abstract provided.

Atticus Finch: Christian Or Civic Hero - A Response To Professor Mcmillian, Judy Cornett

College of Law Faculty Scholarship

No abstract provided.

Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky Jacobs

College of Law Faculty Scholarship

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970’s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (the “Pound Conference”), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door …

Simon Transportation Services, Inc., Will Holloway, Eliot Kerner, J. Paul Singleton

Chapter 11 Bankruptcy Case Studies

No abstract provided.