Law Commons^™

Creditors Not Precluded From Recovering Debtors’ Commercial Tort Litigation Recovery Through Security Interest, Dana Aprigliano

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides valuable protections for secured creditors. A secured creditor of a chapter 7 debtor is entitled to distribution of any debtor property (or its value) in which they have an interest before any other creditors are paid. Even if the debtor has filed under chapter 11 or 13, a secured creditor is still entitled to receipt of their collateral or its value.

Under Article 9 of the Uniform Commercial Code (“UCC”), commercial tort claims and their proceeds may collateralize secured liens. Hence, creditors believing they are secured by a …

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

St. John's Law Review

(Excerpt)

As part of a personal commitment to positively utilize my legal skills, I joined the Legal Network for Gender Equity, a group of attorneys who support individuals seeking to come forward about their experiences with sexual harassment and assault. Through this network, I regularly counsel women who want to share their stories but are concerned that by doing so, they may open themselves up to costly defamation suits from their aggressors. Their concerns are not so much rooted in any notion that their stories are or could actually be defamatory. Instead, these concerns often stem from a recognition that …

Discovery In Federal Courts In Support Of Foreign Litigation: Lending A Helping Hand Or Legal Imperialism?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

For over a century and a half, Congress has authorized the federal courts to assist in the production of evidence for use in foreign tribunals. In 1948, these provisions were codified at 28 U.S.C. § 1782, which currently provides:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person . . . .”

Historically, invocations for assistance …

Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon

St. John's Law Review

(Excerpt)

This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …

To The Head Of The Class? Quantifying The Relationship Between Participation In Undergraduate Mock Trial Programs And Student Performance In Law School, Teresa Nesbitt Cosby

St. John's Law Review

(Excerpt)

This Article seeks to answer the question of whether students who engage in undergraduate mock trial competitions gain a competitive advantage in law school. The Article will examine the pedagogy of experiential learning methods by analyzing how student performance in undergraduate school compares to how these same students perform in law school, and, importantly, whether these students are gainfully employed in a law-related career after law school. This is accomplished by conducting four interviews with Furman alumni who participated in the undergraduate mock trial program during their tenures, and a survey targeting law school students and recent graduates who …

Reality's Bite, Kerri Lynn Stone

Journal of Civil Rights and Economic Development

No abstract provided.

The Effect Of Ongoing Civil Litigation On Chapter 11 Reorganization, Kaitlin Fitzgibbon

Bankruptcy Research Library

(Excerpt)

Businesses and, in some cases, individuals who have incurred a significant amount of debt can voluntarily file for bankruptcy under chapter 11 of the Bankruptcy Code as a means of settling their debts with their creditors and preserving their businesses as going concerns. Chapter 11 is a vehicle for businesses to achieve this goal because it emphasizes debtor reorganization and rehabilitation rather than liquidation. Chapter 11 strikes a balance between rehabilitating the debtor and maximizing value to creditors. Public policy encourages reorganization as opposed to liquidation wherever possible because the successful rehabilitation of debtors is in the best interest …

What Sally Soprano Teaches Lawyers About Hitting The Right Ethical Note In Adr Advocacy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Paradoxically, when lawyers opt to mediate or arbitrate, lawyers may still wind up selecting, shaping and advocating in these dispute resolution processes to resemble the very litigation process they have sought to avoid. After all, litigation likely comports with the lawyer’s own conflict style, comfort level and concepts of justice. As a consequence of this litigation bias, we see that the metaphorical doors of a multi-door courthouse that once offered a menu of dispute resolution choices are increasingly leading us back to one choice: a variation of the litigation door. Even though the Model Rules of Professional Conduct confirm …

Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh

Faculty Publications

Culturally based litigation practices are central to the policies of federal courts. Unlike the Federal Rules of Civil Procedure, cultural based practices are neither uniform nor explicitly defined among the federal courts. These practices are specifically tailored to ensure judicial efficiency, and in turn, they heavily influence practice and procedure in federal courts. This Article examines the significance of cultural litigation practices and their influence on amending or establishing new Federal Rules of Civil Procedure. The author proposes that rulemaking must compliment cultural practices in order to be successful and concludes that when conflict exists between these practices and rulemaking, …

Issue Preclusion In Complex Litigation, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In an era of multiparty, multijurisdictional, multidistrict litigation, federal cases have grown increasingly complex. As judges struggle to manage complicated cases, a new litigation paradigm has emerged. Rather than attempting to try all cases in one action, federal judges are now breaking the litigation down into smaller pieces, using "fast tracks" or "bellwether" cases, hoping that resolution of one or two cases will lead to settlement of the rest. Inevitably, because the cases involve identical fact issues and identical defendants, the doctrine of prior adjudication comes into play. This Article identifies and analyzes significant issues that arise in the …

Detrebling Antitrust Damages In Monopolization Cases, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This article examines the question of whether the statutory rule of mandatory treble damages should continue to apply in monopolization cases brought under Section 2 of the Sherman Act. The law of monopolization "has been a source of puzzlement to lawyers, judges and scholars." Compared to Section 1 of the Sherman Act, which has generated a plethora of case law and an emerging consensus on liability rules and remedies, the law of monopolization remains largely undeveloped with respect to both liability rules and remedies. In the remedies arena, the conversation has focused principally on equitable relief—conduct remedies versus structural …

The Pentium Papers: A Case Study Of Collective Institutional Investor Activism In Litigation, Joseph A. Grundfest, Michael A. Perino

Faculty Publications

This article suggests that institutional investors have rational incentives to become more active in the litigation arena, but that the current debate is falsely constrained because it rests on the assumption that institutional investors must participate either by (1) assuming the formal role of lead plaintiff, class representative, or intervenor or, (2) not participating at all. This is a false dichotomy because, as this article demonstrates, institutions have available to them a rich array of flexible, informal, and relatively inexpensive mechanisms by which they can make their views known to litigants and courts alike.

Our hypothesis that institutional investor activism …

Attorneys’ Fees In Antitrust Litigation: Making The System Fairer, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Section 4(a) of the Clayton Act entitles prevailing plaintiffs in private antitrust actions to recover, in addition to treble damages, their reasonable attorneys' fees. Unique when adopted as part of the Sherman Act in 1890, this fee-shifting provision has been imitated, at least in part, in over 100 federal statutes. In providing for attorneys' fees, Congress intended to promote private enforcement of the antitrust laws and to insulate the treble damages recovery from expenditures for legal fees. Fee-shifting is mandatory where a plaintiff prevails, but the court has some leeway in setting the amount of the fee. The controversy …

The Illinois Brick Dilemma: Is There A Legislative Solution?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In Illinois Brick Co. v. Illinois, the United States Supreme Court held that in price-fixing actions brought under section 1 of the Sherman Act, only first purchasers in the chain of vertical distribution are "injured," within the meaning of section 4 of the Clayton Act, by the full amount of any overcharge. The Court's ruling bars plaintiffs who are "indirect purchasers" from offering proof that they have been injured by defendants' illegal overcharges which have been "passed on" to them by middlemen. The Court's holding reaffirmed the principles previously enunciated in Hanover Shoe, Inc. v. United Shoe Machinery …

Illinois Brick Revisited: An Analysis Of A Developing Antitrust Jurisprudence, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In June 1977, the United States Supreme Court handed down the landmark decision in Illinois Brick Co. v. Illinois. Reaffirming its decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp., the Court held that in a treble damages action where defendants are charged with price-fixing in violation of Section 1 of the Sherman Act, first purchasers, and not others down the distribution line ("indirect purchasers"), are injured by the full amount of any overcharge; and indirect purchasers are prohibited from offering proof that illegal overcharges had been "passed on" to them by their sellers.

The holding …