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Full-Text Articles in Law

Dol Fiduciary Rule 3.0 Strikeout, Base Knock, Or Home Run?, Antolin Reiber Jun 2024

Dol Fiduciary Rule 3.0 Strikeout, Base Knock, Or Home Run?, Antolin Reiber

DePaul Business & Commercial Law Journal

No abstract provided.


Money Is Morphing - Cryptocurrency Can Morph To Be An Environmentally And Financially Sustainable Alternative To Traditional Banking, Clovia Hamilton Jun 2024

Money Is Morphing - Cryptocurrency Can Morph To Be An Environmentally And Financially Sustainable Alternative To Traditional Banking, Clovia Hamilton

DePaul Business & Commercial Law Journal

No abstract provided.


Survey Evidence In Trademark Actions, Ioana Vasiu And Lucian Vasiu Jun 2024

Survey Evidence In Trademark Actions, Ioana Vasiu And Lucian Vasiu

DePaul Business & Commercial Law Journal

No abstract provided.


Corporate Governance And Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech?, Salar Ghahramani Jun 2024

Corporate Governance And Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech?, Salar Ghahramani

DePaul Business & Commercial Law Journal

No abstract provided.


The Real Persons Are The Corporations We Made Along The Way, Leonard Brahin Jun 2024

The Real Persons Are The Corporations We Made Along The Way, Leonard Brahin

DePaul Business & Commercial Law Journal

No abstract provided.


Front Matter Jun 2024

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.


Two Steps Too Far: New Limitations On The Use Of The Texas Two-Step To Resolve Mass Tort Liability In Bankruptcy, Samuel E. Bartz May 2024

Two Steps Too Far: New Limitations On The Use Of The Texas Two-Step To Resolve Mass Tort Liability In Bankruptcy, Samuel E. Bartz

University of Miami Business Law Review

This paper explores the mechanisms by which companies have utilized corporate restructuring through divisive mergers in conjunction with the available protections and tools of the United States Bankruptcy Code to resolve mass tort liability without placing the entirety of the business under bankruptcy. Popularized in Texas, a divisive merger is a mechanism by which an existing business entity divides itself into two new entities, allocating all pre-existing assets and liabilities to each as they see fit. Although intended to be a means by which to easily sell assets of a business, it has been more popularly used to resolve mass …


The Poor Man's Problem In Bankruptcy, Rylee Stanley May 2024

The Poor Man's Problem In Bankruptcy, Rylee Stanley

St. Mary's Law Journal

No abstract provided.


Bankruptcy Law, John T. Laney Iii, Siena Berrios Gaddy, Victoria Barbino Grantham May 2024

Bankruptcy Law, John T. Laney Iii, Siena Berrios Gaddy, Victoria Barbino Grantham

Mercer Law Review

This Article focuses on bankruptcy opinions issued by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit. Topics addressed include 11 U.S.C. § 523(a)(2)(A)’s preclusion of discharge of debts obtained by fraud of a partner or agent; the Supreme Court’s effort to “bring some discipline” to 11 U.S.C. § 363(m) and the use of the term “jurisdictional;” abrogation of tribal sovereign immunity in 11 U.S.C. § 106(a); Chapter 11 plan modification under 11 U.S.C. § 1126 and Bankruptcy Rule 3019(a); the anti‑modification provision of 11 U.S.C. § 1322(b)(2) and its connection …


Mass Tort Bankruptcy Goes Public, William Organek -- Assistant Professor Of Law Apr 2024

Mass Tort Bankruptcy Goes Public, William Organek -- Assistant Professor Of Law

Vanderbilt Law Review

Large companies like 3M, Johnson & Johnson, Purdue Pharma, and others have increasingly, and controversially, turned from multidistrict litigation to bankruptcy to resolve their mass tort liability. While corporate attraction to bankruptcy’s unique features partially explains this evolution, this Article reveals an underexamined driver of this trend and its startling results: government intervention. Governments increasingly intervene in high-profile bankruptcies, forcing firms into insolvency and dictating the outcomes in their bankruptcy cases. Using several case studies, this Article demonstrates why bankruptcy law should subject such governmental actions to greater scrutiny and procedural protections. Governments often assume multiple incompatible roles in these …


Symposium Remarks: Public Litigation Values Versus The Endless Quest For Global Peace, Elizabeth Chamblee Burch Apr 2024

Symposium Remarks: Public Litigation Values Versus The Endless Quest For Global Peace, Elizabeth Chamblee Burch

West Virginia Law Review

No abstract provided.


Purdue And Mass Tort Claims: Will Non-Debtor Release Survive?, Christopher M. Alston, Alena Ivanov Apr 2024

Purdue And Mass Tort Claims: Will Non-Debtor Release Survive?, Christopher M. Alston, Alena Ivanov

West Virginia Law Review

No abstract provided.


Immunity Through Bankruptcy For The Sackler Family, Daniel G. Aaron, Michael S. Sinha Apr 2024

Immunity Through Bankruptcy For The Sackler Family, Daniel G. Aaron, Michael S. Sinha

West Virginia Law Review

In August 2023, the Supreme Court of the United States temporarily blocked one of the largest public health settlements in history: that of Purdue Pharma, L.P., reached in bankruptcy court. The negotiated bankruptcy settlement approved by the court would give a golden parachute, in the form of immunity from liability, to the very people thought to have ignited the opioid crisis: the Sackler family. As the Supreme Court considers the propriety of immunity through bankruptcy, the case has raised fundamental questions about whether bankruptcy is a proper refuge from tort liability and whether law checks power or law serves power. …


In The Midst Of Bankruptcy: How Cryptocurrency's Classification Affects Creditors Who Were Once Customers, Mia Qu Mar 2024

In The Midst Of Bankruptcy: How Cryptocurrency's Classification Affects Creditors Who Were Once Customers, Mia Qu

Washington Law Review

In 2022, Congress proposed the Digital Commodities Consumer Protection Act to amend the Commodity Exchange Act and define a new type of commodity: digital commodity. The definition of digital commodity encompasses cryptocurrency and provides the Commodity Futures Trading Commission with jurisdiction over digital asset transactions. This definition of digital commodity has two important implications. First, it signals the lawmakers’ tendency to generalize cryptocurrency as a commodity. Second, it brings complications into how creditors—especially individual crypto account holders—can recover in the recent bankruptcy cases involving prominent crypto companies. This Comment contains four components. First, it provides a brief explanation of cryptocurrency …


Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu Jan 2024

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …


Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain Jan 2024

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …


Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love Jan 2024

Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love

Emory Law Journal

In 2000, an online toy retailer, Toysmart.com, attempted to liquidate consumer data to pay creditors in its bankruptcy case. The attempted sale drew objections from the Federal Trade Commission and forty-seven state attorneys general. Five years later, Congress attempted to resolve privacy concerns in bankruptcy, amending the Bankruptcy Code to provide clear procedures for the liquidation of “personally identifiable information.” Recently, scholars have criticized these amendments, characterizing them as “limited,” “outdated,” and “privacy theater.” This Comment adds to these criticisms, arguing the amendments’ failure to mandate consideration of relevant nonbankruptcy law puts these permissive sales procedures on a collision course …


Shareholder Primacy Versus Shareholder Accountability, William W. Bratton Jan 2024

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …


How To Interpret The Securities Laws?, Zachary J. Gubler Jan 2024

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …


The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman Jan 2024

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …


Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy Jan 2024

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 Jan 2024

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 Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino Jan 2024

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …


Weed Like Our Money Back: Amending Pennsylvania’S Medical Cannabis Law For Insolvent Cannabusinesses, Nikolajs V. Gaikis Jan 2024

Weed Like Our Money Back: Amending Pennsylvania’S Medical Cannabis Law For Insolvent Cannabusinesses, Nikolajs V. Gaikis

Dickinson Law Review (2017-Present)

In 2016, Pennsylvania joined what is now 37 states and the District of Columbia in legalizing medical cannabis. The Commonwealth’s cannabusinesses share in a struggle that is common in other legal jurisdictions: operating within the confines of the Controlled Substances Act and the Bankruptcy Code. Insolvent individuals and businesses that profit from cannabis or hold cannabis assets cannot declare bankruptcy because cannabis is a Schedule I drug. Under state law, other insolvency alternatives like an assignment for the benefit of creditors, receiverships, and compositions with creditors exist as potential alternatives.

Pennsylvania’s insolvent cannabusinesses are in a uniquely poor position because …


Rethinking Antebellum Bankruptcy, Rafael I. Pardo Jan 2024

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

University of Colorado Law Review

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …


A Bona Fide Dispute: Can Bankrupt Debtors Sell Assets Free And Clear Of Federal Civil Forfeiture Claims?, Joseph Peter Gomez Jan 2024

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 Jan 2024

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) …


Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez Jan 2024

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 Jan 2024

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 …


Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi Jan 2024

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 …