Law Commons^™

The Contours Of American Trade Secret Law: What Is And What Isn't Protectable As A Trade Secret, Richard F. Dole Jr.

SMU Science and Technology Law Review

No abstract provided.

The Law Of Intangible Assets: The Philosophical Underpinnings Of Trade Secret Law In The United States, Ekaterina G. Long

SMU Science and Technology Law Review

No abstract provided.

The Internet (Never) Forgets, May Crockett

SMU Science and Technology Law Review

No abstract provided.

State Bar Associations And Attorney Online Speech: Punishment Without Proper Guidance, Mary Lamar W. Nicholas

SMU Science and Technology Law Review

No abstract provided.

Can You Keep A Secret: Some Wish To Ban Encryption Technology For Fears Of Data Going Dark, Steven B. Taylor

SMU Science and Technology Law Review

No abstract provided.

The Learned Profession Defense: A Modern Response To Crony Capitalism's Historical Evolution And Impact On Patent Law, Wade M. Chumney, Megan A. Ferguson, Roby B. Sawyers

SMU Science and Technology Law Review

No abstract provided.

Policy Considerations For The Blockchain Technology Public And Private Applications, Garry Gabison

SMU Science and Technology Law Review

No abstract provided.

Seeking To Promote Security Over Privacy And Achieving Neither, Jon M. Garon

SMU Science and Technology Law Review

No abstract provided.

The Paradox Of Clean Food And The Food Safety Modernization Act: Understanding The Fda's Preventive Controls For Human Food Rule, Melissa M. Card

SMU Science and Technology Law Review

No abstract provided.

Contours Of Gmo Regulation And Labeling, Joanna K. Sax

SMU Science and Technology Law Review

No abstract provided.

Less May Be More: Reading Into Fda's Labeling Requirements, Diana R. H. Winters

SMU Science and Technology Law Review

No abstract provided.

Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien

Scholarly Articles

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will …

Law Student Mediators Wear A Triple Crown: Skilled, Sellable, & Successful, Laurie A. Lewis

Scholarly Articles

This Article considers several trends that converge to make it a highly favorable time for law students to obtain mediation training and work as mediators prior to graduating. Part I summarizes a brief history of the modern ADR movement, and mediation's emergence as the ADR methodology of choice. Part II discusses the proliferation of live clinics in law schools, with a special emphasis upon mediation clinics and their role in teaching unique practice-ready skills. Part III focuses on the practicalities of community mediation training as well as state requirements for mediators. Finally, Part IV considers the tight legal job market …

Two Aspects Of Liberty, John H. Garvey

Scholarly Articles

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do …

Glimpses Of Marshall In The Military, Kevin C. Walsh

Scholarly Articles

Before President John Adams appointed him as Chief Justice of the United States in 1801, John Marshall was a soldier, a state legislator, a federal legislator, an envoy to France, and the Secretary of State. He also maintained a thriving practice in Virginia and federal courts, occasionally teaming up with political rival and personal friend Patrick Henry. Forty-five years old at the time of his appointment to the Supreme Court, Marshall has been serving his state and his country for a quarter century before he took judicial office. Marshall is an exemplar of professional excellence for all lawyers and judges. …

Democratizing Startups, Seth C. Oranburg

Scholarly Articles

President Obama signed the Jumpstart Our Business Startups (“JOBS Act”) of 2012 into law to “help entrepreneurs raise the capital they need to put Americans back to work and create an economy that’s built to last.” The goal is to “democratize startups” by making capital available to diverse entrepreneurs in new geographies. Yet the net effect of securities regulations and market conditions is the opposite. Startup companies are encouraged to stay private so capital is consolidating in large, mature firms instead of recycling into new startups. Evidence of consolidation is that once-rare “Unicorns” (billion-dollar startups) now number at least 170. …

Section 510 (B) Of The Bankruptcy Code Is To Be Interpreted Broadly, James M. Kerins

Bankruptcy Research Library

(Excerpt)

One of the cornerstone principles of Chapter 11 under title 11 of the United States Code (“the Bankruptcy Code”) is section 510 (b). Under section 510 (b), a fraud claim by a purchaser of stock in a corporation that subsequently files a petition for relief under the Bankruptcy Code must be subordinated to general unsecured creditors. Although the application of section 510 (b) may seem straightforward, courts have struggled interpreting the ambiguous language of section 510 (b).

Prior to Congress enacting section 510 (b), there was significant confusion throughout the bankruptcy community regarding what claims must be subordinated. Many …

May A Foreign Company Liquidate Under The U.S. Bankruptcy Code?, Micaela D. Manley

Bankruptcy Research Library

(Excerpt)

This article discusses the ability of a foreign debtor to liquidate or reorganize under title 11 of the United States Code (the “Bankruptcy Code”). Foreign companies can address their debt in a bankruptcy case under the Bankruptcy Code if it satisfies the eligibility requirements set forth in section 109 of the Bankruptcy Code. A court may dismiss a foreign company’s bankruptcy case under section 3052 or section 1112 of the Bankruptcy Code. Part I of this article discusses the eligibility requirements under section 109 of the Bankruptcy Code. Part II analyzes the possibility of dismissal for “cause” under section …

Whether The Debtor Or Bankruptcy Estate Owns Malpractice Claims That Accrue During A Chapter 11 Bankruptcy, Anna Chen

Bankruptcy Research Library

(Excerpt)

When a debtor files for chapter 11 bankruptcy, three different time periods become important to determine whether the debtor or the estate holds certain rights and interests. The first time period is before a debtor files for bankruptcy. The second time period is after filing for bankruptcy but before conversion. The third time period is post-conversion.

If the misconduct that gives rise to the legal malpractice claim occurs after the filing of a chapter 11 case but before the conversion to a chapter 7 case, the cause of action belongs to the bankruptcy estate. In that situation, the trustee, …

Delaware Bankruptcy Court Trumps An Automatic Stay By Allowing Suit To Terminate A Trademark Licensing Agreement, Olivia Cheung

Bankruptcy Research Library

(Excerpt)

Trademark licensees that file for bankruptcy protection may encounter difficulties and uncertainties regarding their continued use of trademarks that are critical for their businesses. An issue that remains unsettled with courts is whether a licensee can assume a trademark license without the licensor’s consent. Circuits are divided on whether Section 365(c)(1) of title 11 of the United States Code (the “Bankruptcy Code”) prohibits a debtor from assuming an intellectual property license without the consent of the licensor. Courts on one side of the issue apply the “actual test,” which permits a debtor to assume a license as long as …

Procedural Due Process Requirements In Bankruptcy Cases, Bryant Churbuck

Bankruptcy Research Library

(Excerpt)

The Fifth Amendment of the United States Constitution guarantees that an individual will not be deprived “of life, liberty, or property without due process of law.” In the context of bankruptcy, procedural due process requirements are especially important because although bankruptcy tries to ensure that rights that exist outside of bankruptcy are maintained in bankruptcy, title 11 of the United States Code (the “Bankruptcy Code”) or other federal laws may require a different result. Given that the rights of an individual can be altered in bankruptcy proceedings, the adequacy of notice of the bankruptcy proceeding is of great importance. …

Whether Foreign Avoidance Claims May Be Asserted Under Chapter 15, Peter I. Collorafi

Bankruptcy Research Library

(Excerpt)

Chapter 15 was added to title 11 of the Bankruptcy Code in 2005, replacing former Section 304 as the Bankruptcy Code’s operative provision for dealing with cross-border insolvencies. Chapter 15 may be utilized by a foreign representative seeking assistance in U.S. courts in connection with a foreign proceeding. A foreign representative commences a chapter 15 case by filing a petition for recognition of the foreign proceeding in which the representative has been appointed.

After obtaining recognition, a foreign representative has the right to sue and be sued in the United States and may apply directly to a U.S. court …

Debt Discharge, Intent And Good Faith, Arielle Cummings

Bankruptcy Research Library

(Excerpt)

Discharge is of singular importance to the individual in a Chapter 7 case. Discharge enables the debtor to begin a new financial life, and it provides the debtor with a fresh start. In order for this to happen, among other effects, section 524 of title 11 of the United States Code (the “Bankruptcy Code”), which addresses the effects of discharge, voids any judgment against the debtor subject to the discharge. Section 524 also provides a statutory injunction against the continued prosecution of any action that would lead to liability on the claim subject to discharge. Section 727 of the …

Filing For Bankruptcy And Untying The Knot? Not Without Strings Attached, Justin A. Klingenberg

Bankruptcy Research Library

(Excerpt)

Substantive consolidation is an equitable remedy used sparingly by bankruptcy courts to consolidate the bankruptcy estates of two debtors. Although it originated in the corporate context, consolidating the estates of two corporate entities or a corporate entity and an individual debtor, its application has extended to consumer bankruptcy. The consolidation of the bankruptcy estates of two debtor spouses has been addressed and recognized by the Second, Third, Fourth, Sixth, Eighth, and Eleventh Circuit Courts.

Part I of this article briefly examines the authority legitimizing substantive consolidation. Part II analyzes the remedy’s corporate origins and the differing approaches taken by …

A Showing Of Gross Recklessness Satisfies Section 523(A)(2)(A): Denying Deceivers The Ability To Discharge Debts Related To Fraudulently Obtained Funds, Megan Kuzniewski

Bankruptcy Research Library

(Excerpt)

11 U.S.C. Section 523(a) lists certain debts that may not be discharged through a debtor’s bankruptcy. In particular, section 523(a)(2)(A) provides that a debtor who files bankruptcy will not be discharged of debts that were obtained by “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” False representations, such as those described in section 523(a)(2)(A), carry a scienter requirement which requires that it be shown that an individual knowingly made false statements or representations. This requirement carries a heavy burden, as trying to prove that a person had …

Notice Of Bar Date To Employees Of A Multinational Corporation May Be Satisfied By Publication, Naffie Lamin

Bankruptcy Research Library

(Excerpt)

Courts have frequently held that notice to employees of the final day to file a proof of claim (the “bar date”), for purposes of satisfying constitutional due process requirements, may be satisfied by publication. To determine whether proper notice was served, bankruptcy courts distinguish between known and unknown creditors. While a known creditor must be provided with actual notice of a bar date, notice to an unknown creditor is satisfied by constructive notice, for example publication in a newspaper. In the context of the employer-employee relationship, it may seem counterintuitive that a creditor-employee would constitute an “unknown” creditor but …

Whose Claim Is It Anyway?—Direct And Derivative Claims In The Context Of Bankruptcy Litigation, Kristen M. Lasak

Bankruptcy Research Library

(Excerpt)

In bankruptcy litigation, the line between direct and derivative claims may be a thin one, and courts are often entrusted with the task of determining whether the claims creditors set forth are actually derivative of claims owned by the bankruptcy estate. Companies entering into bankruptcy proceedings have the option of creating litigation trusts, which are authorized to pursue any claims the bankruptcy estate may own. A release of claims is often part of any settlement agreement, and such an agreement combined with the ownership of claims by the bankruptcy estate, often controlled through a litigation trust, can leave defrauded …

A Sublessee’S Rights In The Face Of A Debtor-Sublessor’S Rejection Of An Unexpired Lease Under Chapter 11, Adam K. Lau

Bankruptcy Research Library

(Excerpt)

Whether or not rejection of a lease constitutes termination is of great concern to interested parties in a chapter 11 bankruptcy proceeding. This determination can alter the remedies available for injured parties. Section 365 of the Bankruptcy Code establishes the general rule that rejection does not constitute termination, and sets forth the circumstances where exceptions to the general rule apply.

In In re Overseas Shipholding Group, Inc., a Delaware Bankruptcy Court held that the rejection of a lease constitutes a prepetition breach of the lease under section 365(g) of the Bankruptcy Code. The court determined the amount of …

Conflict In The Bankruptcy Code: Ramification Of A Trustee’S 363(F) Right To Sell Property “Free And Clear” On The Lessee’S 365(H) Right To Retain Property, Aaron Leaf

Bankruptcy Research Library

(Excerpt)

Section 363(f) of title 11 of the United States Code (the “Bankruptcy Code”) allows a trustee to sell property “free and clear of any interest in such property” that a third party might have if certain conditions are met. Section 365(h) of the Bankruptcy Code allows the lessee of a rejected lease to either retain the property with all rights appurtenant to the estate, or treat such lease as terminated and sue for damages. Courts are split on if these sections of the Bankruptcy Code are compatible. The majority of courts have found these sections are not compatible, and …

Whether Sovereign Immunity Is A Defense For States In Bankruptcy Cases, Melanie Lee

Bankruptcy Research Library

(Excerpt)

Sovereign immunity, generally, prohibits suit against a sovereign without the sovereign’s consent. The defense of sovereign immunity may not be asserted by any state, or arm of the state, in any bankruptcy proceeding. The prohibition of asserting sovereign immunity in a bankruptcy case has been common practice, almost continuously, since the states agreed to such a waiver in the Constitutional Convention. Moreover, this waiver of sovereign immunity, has since been codified in Section 106 of title 11 of the United States Code (the “Bankruptcy Code”). As a result, a state involved in a bankruptcy case will typically be treated …