Law Commons^™

A Bona Fide Dispute: Can Bankrupt Debtors Sell Assets Free And Clear Of Federal Civil Forfeiture Claims?, Joseph Peter Gomez

Fordham Journal of Corporate & Financial Law

Auctions are wheeling-dealing extravaganzas in which frenzies of bidders fight over shiny objects. What would happen if the government busted down the doors of the auction house, took the shiny objects, and sold them online? An asset sale through section 363(b) of the Bankruptcy Code provides a court-supervised opportunity to maximize economic value for the bankruptcy estate. To sell estate assets, the debtor must either (1) pay off each creditor holding an interest in the assets or (2) strip the creditor’s interest and attach it to the proceeds of the sale. When the government asserts a civil forfeiture claim against …

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen

Fordham Journal of Corporate & Financial Law

The Fifth Circuit’s recent decision in In re Royal St. Bistro, LLC has awakened an unsettled issue in the Bankruptcy Code that has divided the bankruptcy community for over two decades. The question examined by the Fifth Circuit was whether a non-debtor lessee with a right to continued possession through section 365(h) of the Bankruptcy Code loses this right if the debtor-lessor can sell its property “free and clear” under section 363(f). While early decisions held that section 365(h) always protects lessees against debtors’ free and clear sales, some subsequent decisions created a circuit split by ruling that section 365(h) …

After Affirmative Action, Meera E. Deo

Seattle University Law Review

This is a time of crisis in legal education. In truth, we are in the midst of several crises. We are emerging from the COVID pandemic, a period of unprecedented upheaval where law students and law faculty alike struggled through physical challenges, mental health burdens, and decreased academic and professional success. The past few years also have seen a precipitous drop in applications to and enrollment in legal education. Simultaneously, students have been burdened with the skyrocketing costs of attending law school, taking on unmanageable levels of debt. And with the Supreme Court decision in SFFA v. Harvard, we are …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

In Re Rs Air, Llc.: Bankruptcy - Alter Ego Theory, Paul Henken

Transactions: The Tennessee Journal of Business Law

No abstract provided.

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Chapter 13: Let’S Call The Whole Thing Off, Lawrence Ponoroff

Emory Bankruptcy Developments Journal

Courts cannot agree on much of anything about chapter 13, and legislators cannot agree and are confused over what to do about it. This state of affairs benefits no one and shows no signs of abating. So, in this Article, I propose to throw in the towel by imagining a world without chapter 13. Spoiler alert: although I am not superstitious, with just a few tweaks and tucks to chapter 7, I think the Bankruptcy Code might just be better off operating like a high-rise elevator that goes directly from floor twelve to floor fourteen. I will lay it out …

Defining The Relationship Between Municipal Bankruptcy And Modern Federalism Jurisprudence, John Allen Livingston

FIU Law Review

This article delves into the relationship between municipal bankruptcy law and modern federalism jurisprudence, particularly focusing on Chapter 9 reform proposals and its constitutional implications. Against the backdrop of the COVID-19 pandemic's economic challenges, the article explores the historical context of municipal bankruptcy, critiques of Chapter 9's limitations, and proposals for empowering bankruptcy courts. It analyzes key doctrines of federalism such as the Anti-Commandeering and Anti-Coercion Doctrines, as well as the Clear Statement Rule, to evaluate the constitutionality of expanding bankruptcy courts' powers. The article navigates through scholarly debates, proposing a nuanced perspective on the role of federalism, state sovereignty, …

Law In Books Versus Law In Action In The Landmark Shenzhen, China, Personal Bankruptcy Regime, Jason J. Kilborn

Emory Bankruptcy Developments Journal

The first personal bankruptcy regime in Mainland China celebrated its second anniversary on March 1, 2023. An empirical assessment of the law in action during these first two years reveals some troubling deviations from the early promises of the new law on the books. In the first year, a handful of judges were charged with an arduous in-person review process for over 1,000 applicants, and they accepted only twenty-five for case initiation. In the second year, initial case review was delegated to an administrative body—an important efficiency enhancement that tripled the number of opened cases. Nonetheless, most debtors continue to …

Safe Harboring Sloppiness: The Scope Of, And Available Remedies Under, Sections 363(M) And 364(E), Vishal Patel

Emory Bankruptcy Developments Journal

No abstract provided.

Third-Party Bankruptcy Releases And The Separation Of Powers: A Stern Look, Henry Reynolds

Emory Bankruptcy Developments Journal

In the last few years, bankruptcy scholars and professionals have criticized mass tort debtors’ use of chapter 11 bankruptcy as a litigation forum. One such criticism concerns mass tort debtors’ use of third-party releases: provisions in chapter 11 reorganization plans that enjoin creditors’ claims against non-debtor third parties. If a bankruptcy court approves such releases, creditors lose claims against the released third parties, which often include the debtor’s directors, insurers, or employees.

Third-party releases have troubled many. Critics and courts have said that third-party releases violate (1) the Bankruptcy Code, (2) bankruptcy policy, (3) the constitutional right to due process, …

Thwarting The Inevitability Of Over-Indebtedness, Lois R. Lupica, Zach Neumann

Emory Bankruptcy Developments Journal

No abstract provided.

Rural Health Care In The Age Of Hospital Bankruptcies, Sonal Rastogi

Emory Bankruptcy Developments Journal

In recent years, the United States has witnessed a surge in bankruptcy filings within the healthcare sector. Inflation, rising expenses, shifts in payment models, labor shortages, legislative uncertainty, and mounting pharmaceutical costs have impacted all healthcare organizations, casting a shadow over communities. This is particularly evident in rural America where hospital closures have shrunk access to healthcare services. This Comment delves into the challenges and interests at play when healthcare entities and nonprofit organizations navigate bankruptcy proceedings, paying particular attention to the challenges faced by health care business bankruptcy proceedings.

This Comment argues that the current bankruptcy framework requires adjustments …

Non-Uniformity Is The New Uniformity: Inconsistent Quarterly Fees And Why The Bankruptcy Administrator System Must Go, Cody Turner

Emory Bankruptcy Developments Journal

The Bankruptcy Clause’s call for uniformity is one of the more mysterious and unstudied constitutional constraints on bankruptcy, yet it is an ever-present policy consideration. It is a flexible guidepost that functions as a minor constraint on bankruptcy law. However, courts have recently allowed this guidepost to bend too much. When the courts upheld a split bankruptcy administration system as constitutionally uniform, it set the stage for needless, avoidable litigation. The most recent examples of such needless litigation are the Supreme Court cases of Siegel v. Fitzgerald and Office of the United States Trustee v. John Q. Hammons Fall …

Disillusionment Of Discharge: The Fresh Start Through Bankruptcy Act, John Ellison

Emory Bankruptcy Developments Journal

Although its roots precede the twenty-first century, the student loan debt “issue” in America has evolved in recent years into a full-blown “crisis.” Recently surpassing credit cards and auto loans, student loan debt is the second-largest type of consumer debt in the United States, behind only mortgage debt. Prior to the Higher Education Amendments of 1976, bankruptcy provided an avenue through which student loan debt could be discharged. A series of legislative amendments, however, led to the imposition of 11 U.S.C. § 523(a)(8), which bars the discharge of student loan debt absent a showing of “undue hardship.” Courts have constructed …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Structure Of Corporate Law Revolutions, William Savitt

Seattle University Law Review

Since, call it 1970, corporate law has operated under a dominant conception of governance that identifies profit-maximization for stockholder benefit as the purpose of the corporation. Milton Friedman’s essay The Social Responsibility of Business is to Increase Its Profits, published in September of that year, provides a handy, if admittedly imprecise, marker for the coronation of the shareholder-primacy paradigm. In the decades that followed, corporate law scholars pursued an ever-narrowing research agenda with the purpose and effect of confirming the shareholder-primacy paradigm. Corporate jurisprudence followed a similar path, slowly at first and later accelerating, to discover in the precedents and …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …