Law Commons^™

United States Assistant Attorney General For National Security John P. Carlin Delivers Remarks At The American University Business Law Review 2014 Symposium, John P. Carlin

American University Business Law Review

No abstract provided.

Stare Indecisis: The Federal Circuit's En Banc Battle Against Itself And Business In Lighting Ballast Control, Llc V. Philips Electronics North America Corp., Ronny Valdes

American University Business Law Review

No abstract provided.

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 …

Moderamen Inculpatae Tutelae: The Jurisprudence Of A Justifiable Defense, Kenneth Pennington

Scholarly Articles

Intentionality and proportionality enter the jurisprudence dealing with rights of defense at the end of the third century of the common era. A rescript of the emperors Diocletian and Maximian to a certain Theodorus in 290 A.D. resolved a legal issue that had arisen from a court case. The question sent to the imperial court must have been: what kind of a defense a person can use if a robber attempts to take his property away. The imperial court’s response coined a new term, “moderamen inculpatae tutelae” that had never been used before, at least not in the sources that …

Misconstruing Graham & Miller, Cara H. Drinan

Scholarly Articles

In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes. An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears. After briefly describing what these two decisions required of the states, in …

Observations On Macdonald V. Moose, Kevin C. Walsh

Scholarly Articles

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

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 …