Law Commons^™

Benefit Corporations—The Latest Development In The Evolution Of Social Enterprise: Are They Worthy Of A Taxpayer Subsidy?, Mystica M. Alexander

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Beware Of New Jerseyans Bearing Gift Cards: New Jersey Gift Card Legislation And The Corporate Effect, Isabella Pitt

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Table Of Contents - Vol. 38, No. 2 2014

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Product Of The Mind: Idea Submission Cases And Copyright Preemption Post-Grosso, Catherine Niebergall

SMU Science and Technology Law Review

No abstract provided.

Stalemate: Patent Eligibility, Pamela Welch

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Preemption Of Other State Law By The Uniform Trade Secrets Act, Richard F. Dole Jr.

SMU Science and Technology Law Review

No abstract provided.

The Internet And Its Discontents: 3-D Printing, The Commerce Clause, And A Possible Solution To An Inevitable Problem, Jeffrey T. Leslie

SMU Science and Technology Law Review

No abstract provided.

Evolving Patent Legislation Growing Pains, Eric Carr

SMU Science and Technology Law Review

No abstract provided.

The Apps Act: Regulation Of Mobile Application Privacy, Katherine Gnadinger

SMU Science and Technology Law Review

No abstract provided.

Cyberspace: A Constitutionally Protected Forum For Free Speech, Donald H. Flanary Iii, Jessica J. Pritchett

SMU Science and Technology Law Review

No abstract provided.

Judges And Social Media: Disclosure As Disinfectant, Benjamin P. Cooper

SMU Science and Technology Law Review

No abstract provided.

Avoiding Misrepresentation In Informal Social Media Discovery, Agnieszka Mcpeak

SMU Science and Technology Law Review

No abstract provided.

Increasing Coverage In Today’S Private Retirement System, Regina T. Jefferson

Scholarly Articles

Part I of this Reflection describes and critiques the effective-ness of the existing nondiscrimination standards for encouraging in-creased coverage in the private retirement system. Part II examines current trends with respect to various segments of the working population and concludes that existing pension law and policies are providing inadequate retirement benefits to low- and middle-income workers participating in 401(k) plans. Part III proposes the following three recommendations for increasing participation rates in the current pension climate: (1) mandatory education programs for all 401(k) plans; (2) mandatory automatic features in 401(k) plans; and (3) an additional tax incentive to encourage greater …

Bridging The Gaps In Property Theory, Adam J. Macleod

Scholarly Articles

Though several others can rightly be said to have done as much, no one has done more to rehabilitate the idea of property as a meaningful normative concept than James Penner and Henry Smith. That the two of them have edited a collection together is a substantial reason to read it. That the collection contains contributions from many of the best property theorists is another. The introduction to the book sets the ambitious goal of identifying what needs explaining in the ‘broad space that lies between’ the philosophy of property and scholarship about particular legal doctrines. For anyone interested in …

The Day After Tomorrow: A Survey Of How Gulf Coast State Utility Commissions And Utilities Are Preparing For Future Storms, Katherine Carey

Sabin Center for Climate Change Law

With widespread outages caused by devastating natural disasters such as Superstorm Sandy and Hurricane Ike in the nation’s recent memory, the public wants to know that the electric utility industry is prepared to withstand and respond to the storms of the future. But is the industry prepared? The government’s role in regulating the electric utility industry makes it impossible to properly analyze why industry players are prepared or unprepared without looking at the actions and decisions of the state regulatory officials. The industry’s actions are inherently tied to the regulations it is required to follow and the costs it is …

New York State Leading On Utility Climate Change Adaptation, Ethan Strell, Christine Fazio

Sabin Center for Climate Change Law

In a precedent-setting decision, the New York State Public Service Commission unanimously approved a settlement on Feb. 20, 2014, requiring Con Edison to implement state-of-the-art measures to plan for and protect its electric, gas, and steam systems from the effects of climate change. Although issued in the context of Con Edison’s rate case, the commission’s order issued on Feb. 21, 2014, explicitly broadened the sweep of its order to address resiliency measures for all utilities in New York State.

Can A Bankruptcy Trustee Recover Assets Transferred To A Self-Settled Trust?, Christian Corkery

Bankruptcy Research Library

(Excerpt)

A “spendthrift trust” provides a fund for the benefit of another, secures it against the beneficiary’s improvidence, and places it beyond the reach of the beneficiary’s creditors. A spendthrift trust has long been recognized as a useful vehicle for providing the beneficiary with the benefits of the trust while simultaneously preventing the beneficiary from voluntarily transferring his interest in the trust. This is particularly useful where the settlor wants to protect the transfer of wealth to a beneficiary. For instance, if a parent makes a large gift to an irresponsible child, the child will likely squander the gift …

No Second Chances: How Courts Have Interpreted Section 109(G)(2) To Prohibit Debtors From Filing A Second Petition Within 180 Days, Brian Adelmann

Bankruptcy Research Library

(Excerpt)

In 1984, Congress enacted section 109(g)(2) of the Bankruptcy Code for the purpose of curbing the abuse of repetitive bankruptcy filings by debtors. Section 109(g)(2) provides that an individual may not be a debtor if the debtor requested and obtained a voluntary dismissal of a previous bankruptcy case at any time in the preceding 180 days. The typical scenario that section 109(g)(2) is intended to prevent a debtor from voluntarily dismissing his bankruptcy case and subsequent refiling of a new case in order to prevent a creditor from acquiring relief from the automatic stay. The statute gives secured creditors …

The Purchaser Of A Tax Lien Is The Holder Of A “Tax Claim” Under 11 U.S.C. §511(A), Andrew Reardon

Bankruptcy Research Library

(Excerpt)

Governmental entities may place a tax lien against property for delinquent taxes owed on such property or as a result of the property owner’s failure to pay income or other taxes. Once the tax lien is perfected, the governmental entities can either enforce the lien or sell the liens, in order to recover the delinquent taxes. Private entities may purchase the liens, which often impose high interest rates on the debtors. A purchaser of the tax liens will be able to collect payment directly from the debtor when the property is sold or, if necessary, foreclose, while the government …

The Reciprocal Duty Of Good Faith Negotiations In Chapter 9 Bankruptcies, John Boersma

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code states that municipalities may only proceed under chapter 9 of the Bankruptcy Code if, among other things, they are specifically authorized to do so by their respective state law. As a result, municipal bankruptcies are governed by both the Bankruptcy Code and the state law of the relevant municipality. Under the Bankruptcy Code, the good faith of the parties involved is of primary importance due to its role in the approval or rejection of a debtor’s petition for chapter 9 bankruptcy protection. Given the fact that a successful petition has the ability to significantly alter the …

Whether The Equitable Power Of The Bankruptcy Court Can Save The Tardy Filing Of A Nondischargeability Complaint, Aldo A. Caira Iii

Bankruptcy Research Library

(Excerpt)

Courts have long held that the Bankruptcy Code provides a discharge only to those “honest but unfortunate debtors.” To that end, when a debt has been incurred under false pretenses, false representation, or outright fraud, the Bankruptcy Code allows the debtor’s creditors to file a nondischargeability complaint against the debtor. However, in order for the creditor to challenge the dischargeability of a debt, the creditor must file his or her nondischargeability complaint in a timely manner. A creditor who fails to file a timely complaint (or to seek a “for cause” extension) risks losing the right to challenge the …

An Assignee Has The Same Right Of Non-Dischargeability Under Section 523(A)(2)(B) As The Assignor, Justin W. Curcio

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code affords an “honest but unfortunate debtor” a “fresh start” by discharging certain prior financial obligations of the debtor. The bankruptcy process allows debtors to “reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’” However, there are limitations on a debtor’s ability to obtain a discharge. For example, a creditor that lent money to a debtor based on a fraudulent writing can seek a determination that the debt is non-dischargeabile under section 523(a)(2)(B).

Issues arise …

The Differences Between The Right To Setoff Under 11 U.S.C. §553 And 11 U.S.C. §558, Maria Ehlinger

Bankruptcy Research Library

(Excerpt)

In bankruptcy cases, the right to setoff is a powerful tool used by both debtors and creditors to avoid having to pay a debt owed to another. The right to setoff is defined as “[a] debtor’s right to reduce the amount of a debt by any sum the creditor owes the debtor the counterbalancing sum owed by the creditor.” A right to setoff usually arises when a debtor owes a debt to a creditor and the creditor owes a debt to the debtor. The purpose of a setoff is to “allow entities that owe each other money to apply …

Applying The Automatic Stay To Non-Debtors, Raff Ferraioli

Bankruptcy Research Library

(Excerpt)

The automatic stay provision of the Bankruptcy Code is regarded as one of the most essential protections the Code offers to debtors. Section 362(a) provides that the filing of a bankruptcy petition “operates as a stay [of] action[s] or proceeding[s] against the debtor.” Thus, when an entity files for bankruptcy, an automatic stay is created that prevents creditors from taking any action to collect or enforce a debt, including among other things, continuing ongoing litigation.

Practically, the automatic stay enables all claims against a debtor to be brought in a single forum. Simultaneously, it also preserves “what remains of …

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 …

The Effect Of Conversion On A Post-Petition Lender’S Superpriority Claim Over A Chapter 7 Trustee’S Post-Conversion Administrative Expense Claim, Michael Foster

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code provides a priority scheme that dictates the order in which claims are to be paid. Generally, secured claims get paid out first. Secured claims are followed by administrative expense claims, which include expenses incurred for administration of the estate, such as professional fees of the trustee, attorney, or accountant employed by the estate, and certain taxes. These claims are then followed by other priority unsecured claims, and finally general unsecured claims. The amount of the distribution that a creditor will receive in a bankruptcy case depends on numerous factors, including the total number of other creditors …

Litigation Trustees Not Allowed To Wear Their “Non-Bankruptcy Hats” To Avoid Swap Transactions As Fraudulent Conveyances, Aura M. Gomez Lopez

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code provides bankruptcy trustees with avoidance powers that allow the trustees to undo certain pre- and post-petition actions. The purpose of this power to allow the recovering property or interests transferred by the debtor in order to maximize the value of the bankruptcy estate for the benefit of the creditor and to provide more equitable distribution to creditors. Among these avoidance powers is the power to avoid fraudulent transfers/conveyances. In particular, the bankruptcy trustee may avoid a transfer (1) as an actually fraudulent transfer if it was made with the actual intent to hinder, delay, or defraud …

Discharging Non-Filing Co-Debtor Debt Under Chapter 13, Carly Krupnick

Bankruptcy Research Library

(Excerpt)

During chapter 13 proceedings, both the debtor and the non-filing co-debtor are protected from their creditors by a stay. Once a bankruptcy petition is filed, section 362(a) of the Bankruptcy Code creates an “automatic stay” that operates by halting almost all actions by creditors against the debtor and his property to collect a prepetition debt. In a chapter 13 bankruptcy case, section 1301(a) provides that the filing of the petition also automatically creates a co-debtor stay that generally prevents a creditor from taking any “act[ion], or commenc[ing] or continu[ing] any civil action, to collect all or any part of …

Does The “Free And Clear” Language In An Order Approving A Sale Pursuant To Section 363(F) Of The Bankruptcy Code Bar A Successor Liability Claim?, Stephanie Y. Lin

Bankruptcy Research Library

(Excerpt)

Section 363(f) of the Bankruptcy Code was enacted to empower debtors to maximize the value of their bankruptcy estate for the benefit of creditors. Because the assets sold in a sale under section 363(f) (a “363 Sale”) transfer “free and clear” of “any interest in such property,” a purchaser would be more likely to pay a higher price for the assets. In turn, a higher price paid for the assets results in more available resources to distribute among the debtor’s creditors. If a claim is considered an “interest in such property” and the sale order provides that the sale …