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Human Rights In Sub-Saharan Africa: Introduction, Jendayi E. Frazer

Human Rights & Human Welfare

Whether one points to the legacy of colonialism, the nature of the post-colonial state, the effects of the Cold War, globalization, and enduring customary cultural practices, the facts presented in this Spring Digest on Human Rights in Sub-Saharan Africa (SSA) point to a significant deficit in human rights protection for sub-Saharan Africa’s people. All of the selections recognize that the demand for greater human rights and the form in which they are expressed will largely come from within Africa to be sustainable. The Digest creates a bridge between universal rights standards and their particular application and expression in Africa.

Universal Human Rights Vs. Traditional Rights, Brittany Kühn

Human Rights & Human Welfare

The Universal Declaration of Human Rights (UDHR) is one of the most translated documents in the world. Its promotion of freedom, justice and peace provides a set of standards that were adopted by the United Nations General Assembly and with the support of forty-eight countries. Despite this doctrine of international values, indigenous societies often resist attempts to implement such law when it threatens to constrain traditional norms that are deeply embedded into the realm of cultural identity.

Youth Migration And Poverty In Sub-Saharan Africa: Empowering The Rural Youth, Charlotte Min-Harris

Human Rights & Human Welfare

Sangaré, a poor young farmer from a village in southern Mali, leaves his wife and three children to find stable employment in the capital city of Bamako. What he finds is an unrewarding reality that leads him from small job to small job, only earning about US 22 cents per day. These jobs range from selling sunglasses, to shining shoes, to driving a rickshaw. Unfortunately, his income has not proved enough to provide for his family, as his aunt has since adopted his daughter, and his children cannot attend school. The inability to find stable employment in Bamako has forced …

The Continuing Struggle For Agrarian Reform In Brazil, Sarah Mogab

Human Rights & Human Welfare

Brazil is infamous for its enormously skewed distribution of income, wealth, and land. In a country where 4 percent of landowners own 79 percent of the land, an ongoing movement for land reform continues to be a source of conflict and violence in the countryside (Kay 2001: 755). Extreme poverty is highly concentrated in rural areas. Although rural workers comprise only 18 percent of the total population (Filho 2007), it is estimated that as many as 6 million families are in need of land (Thomas: 9). This struggle for land, in Brazil and elsewhere, is framed by its supporters as …

The Brazilian Paradox: The Lesbian, Gay, Bisexual, And Transgender Battle For Human Rights, Adrienne Rosenberg

Human Rights & Human Welfare

With a rich religious history of Catholicism juxtaposed with a sexually liberal public, Brazil interacts with its lesbian, gay, bisexual, transgender (LGBT) community in a very distinct and often conflicting manner. Although homosexuality has been legal in the state since 1823, save the armed forces, and civil unions are currently permitted in some areas, Brazil has functioned within this paradox as both worst transgressor, with a high record of hate crimes and discrimination, and as world leader, with a progressive domestic and global push for LGBT rights. In order to accurately assess these two opposing statuses, one must analyze the …

The Colonial Legacy And Human Rights In Mexico: Indigenous Rights And The Zapatista Movement, Alexander Karklins

Human Rights & Human Welfare

The current status of human rights in Latin America has been profoundly affected by the legacy of colonial institutions. Since the time of conquest, through colonialism, and after independence, the growth of the Latin American state has been challenged by the alternative discourse of indigenous rights. In Mexico, the dominance of mestizaje (or the quest for a single Mexican ethnic identity) in the formation of its modern state apparatus has left indigenous cultures out of the realm of political participation and exposed to human rights violations. With the Zapatista uprising of 1994-1996, the contradictions inherent in Mexico’s constitution were brought …

Police Violence In Brazil, Kyra Moon

Human Rights & Human Welfare

“This was just the beginning. They want war, and they‟ll get war. The problem of trafficking will only be resolved with blood. It is the only language they understand.” This was the response of Mario Azevedo, chief delegate of the 21st police precinct in the Bonsucsso neighborhood in Rio de Janeiro, after drug traffickers killed three police officers. Three days after that assault, one hundred and twenty heavily armed police officers stormed into the Nova Brasilia favela (the Brazilian term for slum or shantytown) and killed thirteen residents, four of which were minors. Press reports initially described this incident in …

Violence Against Sex Workers In Latin America: Pervasiveness, Impunity, And Implications, Stephanie A. Bell

Human Rights & Human Welfare

On December 17, 2005, two transgendered sex workers in Guatemala City were shot in the head, one fatally. Witnesses—including the survivor—alleged that police forces shot the victims. Human rights advocates have argued that the attack was part of a broader social cleansing campaign that has targeted all sex workers.

Sex workers in Latin America are subjected to violence regularly. This violence varies greatly, but its pervasiveness and the impunity for perpetrators are two common themes. Violence against sex workers comes from many different sources: police, pimps, johns, serial killers, gang members and others. The violence also takes many forms, including …

Whether “Hedging” Anticipated Contingency Fees Should Be Deemed Impermissible Fee-Sharing Under Section 504 When The Policy Considerations Underlying The Statute Are Not Offended, David Bloom

Bankruptcy Research Library

(Excerpt)

Although the Bankruptcy Code establishes a clear prohibition against the sharing of fees by persons receiving compensation or reimbursement under section 504, it is unclear whether bankruptcy attorneys may be permitted to enter into “hedging” arrangements in order to obtain downside protection against risks associated with appeal. Ultimately, what is needed to decide this issue is a determination of what constitutes “sharing” of compensation within the meaning of the Code. Recently, in In re Winstar Communications, Inc., 378 B.R. 756 (Bankr. D. Del. 2007), the bankruptcy court found no ambiguity in the statute, and gave the term “sharing” …

In Re Whitehall Jewelers Holdings, Inc., Jonathan Borst

Bankruptcy Research Library

(Excerpt)

In In re Whitehall Jewelers Holdings, Inc., No. 08-11261(KG), 2008 WL 2951974 (Bankr. D. Del. July 28, 2008), the court held against Whitehall Jewelers Holdings, Inc. (“Debtors”), in favor of approximately 124 consignment vendors (“Consignment Vendors”), where Debtors sought an order permitting the “free and clear” sale of all of their assets and inventory, including consigned goods from Consignment Vendors. See id. at *1–2. In order to develop a full understanding of the court’s holding, it is necessary to understand its statutory context, specifically sections 363 and 541 of the Bankruptcy Code, as well as Federal Rule of …

Chapter 13 Plan Cannot Avoid Lien Absent Adversary Proceeding, Michael Buccino

Bankruptcy Research Library

(Excerpt)

In SLW Capital, LLC v. Mansaray-Ruffin (In re Mansaray-Ruffin), 530 F.3d 230, 233 (3d Cir. 2008), the Third Circuit considered whether a Chapter 13 confirmation plan has res judicata effect with respect to a creditor’s lien when no adversary proceeding regarding the lien was brought under the Federal Rules of Bankruptcy Procedure (“the Rules”). The court held that the plan had no res judicata effect on such a lien. Accordingly, the lien passed through bankruptcy unaffected and could only be invalidated through an adversary proceeding. In doing so, the court made it clear that the requirements of …

No Mention Of “Cure” In Section 363 Means Default Interest Rate Applies, Caitlin Cline

Bankruptcy Research Library

(Excerpt)

In General Electric Capital Corp. v. Future Media Productions, Inc., the Ninth Circuit addressed the issue of whether an oversecured creditor is entitled to the contracted-for default rate of interest when the creditor has been paid in full pursuant to an asset sale governed by § 363 of the Bankruptcy Code. Despite prior precedent to the contrary, the court answered the question in the affirmative. In its previous decision in Great Western Bank & Trust v. Entz- White Lumber and Supply, Inc. (In re Entz-White Lumber & Supply, Inc.), where the debtor had paid the creditor in …

Effect Of Debtor’S Pre-Petition Election To Apply Tax Refund Toward Liability For Petition Year In Determination Of Property Of The Estate, Timothy Fox

Bankruptcy Research Library

(Excerpt)

Establishing what property of the debtor will pass into the bankruptcy estate is critical to effectuating the dual purposes of the Bankruptcy Code: to grant the debtor a fresh start and to divide assets of the estate equitably among creditors. In a chapter 7 proceeding, this threshold determination divides the debtor’s assets into those that the debtor will retain and those that will be liquidated to satisfy creditors’ claims.

In determining what is property of the estate, an issue arises when before filing for bankruptcy, the debtor files a return for a pre-petition tax year and elects to apply …

United States V. White, 365 B.R. 457, Robert Griswold

Bankruptcy Research Library

(Excerpt)

In U.S. v. White, 365 B.R. 457 (Bankr. M.D. Pa. 2007), the U.S. Bankruptcy Court for the Middle District of Pennsylvania addressed the issue of whether the Internal Revenue Service (“IRS”) may setoff the entire pre-petition debt against pre-petition claims that have been declared exempt, or whether the IRS is only allowed to setoff up to the amount of the priority claim. The court held that the IRS may setoff the entire debt and is not limited to the amount of the priority claim.

The proper treatment of the IRS’ setoff right in bankruptcy is unclear because of …

In Re Kagenvaema: An End-Run Around The “Applicable Commitment Period”, Christopher Hunker

Bankruptcy Research Library

(Excerpt)

Imagine a debtor who lives in New York State, where the median household income for 2007 was approximately $53,000. The debtor is a doctor and receives $80,000 of income from the hospital where she works. The good doctor, however, has gotten in over her head. She purchased a gigantic home she could not afford, has too many student loans to pay back, and regrets buying that expensive car. Her credit card debt is staggering, and she incurs thousands of dollars each month in interest and fees. She decides she can no longer handle the financial pressure and wants to …

Negligent Vehicular Homicide Caps A Debtor’S Homestead Exemption, Christine Knoesel

Bankruptcy Research Library

(Excerpt)

In an expansive reading of the homestead exemption cap added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), the First Circuit Court of Appeals, in Larson v. Howell, held that criminal negligence is sufficient to trigger the section 522(q)(1)(B)(iv) homestead exemption cap. 513 F.3d 325, 328 (1st Cir. 2008). In Larson v. Howell, Larson was found guilty of negligent vehicular homicide. In Larson’s bankruptcy case, the homestead exemption cap was applied because the debt arose from a criminal act. Id. at 327. The Court of Appeals reasoned that the cap should apply …

Bapcpa’S Exception To The Absolute Priority Rule For Individual Chapter 11 Debtors, Christina Kormylo

Bankruptcy Research Library

(Excerpt)

Under the absolute priority rule of 11 U.S.C. § 1129(b)(2)(B)(ii), a reorganization plan that gives a junior class of creditors an interest in the estate will not be confirmed unless each senior class receives full payment or gives its consent. The absolute priority rule was amended in 2005 by the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) by adding an exception that allows individual chapter 11 debtors to retain property included in the estate under newly added section 1115. This amendment furthers the congressional intent of allowing chapter 11 to function more like chapter 13, under which there …

Trustee's Ability To Waive Individual Debtor’S Attorney-Client Privilege, Rebecca Leaf

Bankruptcy Research Library

(Excerpt)

Courts disagree about whether a trustee may waive an individual debtor's attorney-client privilege. Although the Supreme Court has addressed the issue in the case of corporate debtors, it has not done so in the case of individual debtors. Thus, lower courts have adopted three approaches to cases involving individual debtors: allowing the trustee to always waive privilege, never allowing the trustee to waive privilege, and a balancing approach.

This memo explores the importance of the attorney-client privilege, its relevant statutory bases, Supreme Court precedent, and the three approaches mentioned above. This memo also considers the advantages and disadvantages of …

Whether Negative Equity Is Part Of Purchase Money Security Interest?, Vitaly Libman

Bankruptcy Research Library

(Excerpt)

The 2005 BAPCPA amendments have turned routine car purchases into a source of litigation in the federal courts. The litigation stems from the financing agreements made during the transaction. Today, these financing agreements often require the purchaser to repay loans over a term of five years or longer. See, e.g. In re Peaslee, 358 B.R. 545, 554 (Bankr. W.D.N.Y. 2006). During these long terms, cars rapidly depreciate in value. Consequently, many consumers are left with vehicles that have a market value less then the amount of debt still owed on them. This deficiency is called “negative equity.” Often, consumers …

Non-Consensual Third Party Releases In Chapter 11 Bankruptcy, Craig Lutterbein

Bankruptcy Research Library

The Seventh Circuit, in Airadigm Communications, Inc. v. Federal Communications Comm’n. (In re Airadigm Commc’n, Inc.), 519 F.3d 640 (7th Cir. 2008), has joined the circuits permitting the non-consensual releases of non-debtor third parties from their obligations to creditors in chapter 11 reorganizations. In Airadigm, the court considered the validly of releasing a guarantor and major reorganization financer, Telephone and Data Services (hereinafter TDS), from liability resulting from the reorganization of debtor Airadigm Communications. The Court came to three conclusions on the subject: 1. Bankruptcy code section 524(e) does not prevent bankruptcy courts from granting third-party releases; 2. …

Narrowing The Scope Of Auditor Duties, David Margulies

Bankruptcy Research Library

(Excerpt)

The tort of “deepening insolvency” refers to an action asserted by a representative of a bankruptcy estate against directors, officers, lenders, or others based on their pre-petition interactions with the debtor. 9 NORTON BANKR. L. & PRAC. 3d § 174:22. Liability under deepening insolvency has been imposed where “the defendant’s conduct, either fraudulently or even negligently, prolongs the life of a corporation, thereby increasing the corporation's debt and exposure to creditors.” In re LTV Steel Co., Inc., 333 B.R. 397, 421 (Bankr. N.D. Ohio 2005). Damages under the theory are sometimes awarded to a bankrupt corporation when, by delaying …

Expanding The Settlement Payments Exception In Lbo’S, Matthew Mcnamara

Bankruptcy Research Library

(Excerpt)

This memorandum will first give a statutory background of relevant bankruptcy code provisions and their effects on the bankruptcy proceeding. Next, the memorandum will present description of pertinent cases related to the 546(e) ‘settlement payment’ exemption. In particular, the memorandum will document the progression of cases interpreting the meaning of ‘settlement payment’ within 546(e) from a restrictive interpretation to an increasingly broad one. Finally, the memorandum will discuss the case Brandt v. B.A. Capital (In re Plassein International) and its implication on the 546(e) exemption in relation to transfers of stock made in an LBO for publicly-held …

Repossession Does Not Alter Debtor’S Rights In Collateral, Ian Park

Bankruptcy Research Library

(Excerpt)

Does section 541(a)(1) of title 11 of the U.S. Code, which defines a debtor’s bankruptcy “estate,” include collateral which has been lawfully repossessed by secured creditors pursuant to Article 9 of the Uniform Commercial Code (“UCC”) prior to the debtor’s filing for bankruptcy? The courts have split in answering this pro-debtor issue by defining “estate” differently. Recently, in Tidewater Fin. Co. v. Curry (In re Curry), 509 F.3d 735, 735 (6th Cir. 2007), the Sixth Circuit Court of Appeals split with the Fourth and Eleventh Circuits and held that a secured creditor’s repossession of collateral under the state’s …

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) …

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 …

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 …