Law Commons^™

Circuit Split Created Over Enactment Of Section 510(A) Of The Bankruptcy Code And Its Effect On The Rule Of Explicitness, Rossella Scarpa

Bankruptcy Research Library

(Excerpt)

Bankruptcy law seeks to equitably distribute a debtor’s remaining assets among creditors. However, prior to bankruptcy, creditors can contract around their pro rata equitable distribution by executing inter-creditor agreements. Inter-creditor agreements are executed to delegate the rights and priorities of creditors as to a common borrower in the event the borrower defaults. Subordination agreements are a type of inter-creditor agreement, where junior creditors consent to senior creditors having their loans repaid in full before junior creditors receive their payment. Bankruptcy courts enforce subordination agreements through section 510(a) of title 11 of the United States Code (the “Bankruptcy Code”), which …

Determining When The Granting Of Relief Is Deemed Abuse Of The Bankruptcy Code Under Section 707, Angela Bonica

Bankruptcy Research Library

(Excerpt)

There is no constitutional right for an individual to have their debts discharged. A discharge is a privilege offered to the honest but unfortunate debtor pursuant to title 11 of the United States Code (the “Bankruptcy Code”). A bankruptcy court considers different standards and/or tests to determine when a debtor may be abusing the relief provided under the Bankruptcy Code. The specific provision that restricts relief because of abuse was originally enacted in 1984, and then amended in 2005 under the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). A main purpose of the BAPCPA was to deter abuses …

Constructive Fraudulent Transfers—Determining Insolvency, Tyler Beach

Bankruptcy Research Library

(Excerpt)

When a debtor files for bankruptcy, all of the debtor's assets and liabilities are automatically transferred into a bankruptcy estate. These assets are then used either to help a debtor reorganize or to repay all of the debtor’s creditors in liquidation. Under the United States Bankruptcy Code (the “Bankruptcy Code”), to preserve the estate assets a bankruptcy trustee can avoid certain transfers made by debtors as fraudulent transfers. Without this power to avoid transactions that occur prior to a debtor filing for bankruptcy, debtors could engage in transactions that drain the company of any of its valuable assets and …

Filing A Proof Of Claim In A Bankruptcy Court Subjects The Filing Party To The Court’S Jurisdiction. Anti-Waiver Clauses In The Proof Of Claim Are Not The Same Thing As Objecting To Jurisdiction, Christina Buru

Bankruptcy Research Library

(Excerpt)

In the United States, a federal court must have both personal and subject-matter jurisdiction to hear and rule on a case. Subject-matter jurisdiction can be met by satisfying the requirements under §1331 or §1332 of title 28 of the United States Code. These are typically referred to as “federal question” jurisdiction and “diversity” jurisdiction. §1331(a) allows district courts to exercise original jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United States”. §1332(a) allows district courts to exercise original jurisdiction over civil actions “where the matter in controversy exceeds the sum or value of $75,000…and …

Debtor-Tenants Located In Shopping Centers Must Satisfy Heightened Requirements When Assuming And Assigning Their Unexpired Lease In Bankruptcy, Kristin Catalano

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), a debtor filing for bankruptcy with an executory contract or unexpired lease will be relieved of their obligation under that contract or lease when it is properly assumed and assigned to a third party with court approval. Section 365(b) mandates that the debtor meet certain requirements to assume a contract or lease, which includes providing adequate assurance of future performance.

Section 365(b)(3) governs the assumption and assignment for debtor-tenants located in shopping centers. Section 365(b)(3) enumerates heightened requirements in providing adequate assurance in order for the debtor-tenant in …

Balancing And Protecting Competing Interests Of A Landlord-Tenant Relationship In A Section 363 Sale, Kayla Dimatos

Bankruptcy Research Library

(Excerpt)

Section 363(f) of title 11 of the United States Code (the “Bankruptcy Code”) gives the trustee or debtor in possession a powerful tool to sell property of the estate “free and clear of any interest in such property.” Before the estate can sell an asset “free and clear of any interest in such property,” the Bankruptcy Code requires that a debtor or trustee satisfy the statutory requirements enumerated in section 363(f). A sale of property of the debtor’s estate is permissible only if:

(1) applicable nonbankruptcy law that permits such a sale, (2) the nondebtor entity consents, (3) the …

Constraints On The Breadth Of A Bankruptcy Trustee’S Power To Demand A Turnover Of Assets, Timothy Diprisco

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) empowers bankruptcy trustees to compel entities to turn over property to the bankruptcy estate. Property subject to the turnover provision includes “all legal and equitable interests of the debtor in property at the commencement of the case.” Although the Bankruptcy Code is federal law, property interests are still defined by state law. Occasionally, bankruptcy trustees claim property as part of the estate that courts later deem is beyond the breadth of their authority.

This memorandum examines the extent of a bankruptcy trustee’s power to compel turnover of assets. Part …

Analyzing A Creditor’S Ability To Exercise Its Shareholder Rights To Prevent A Bankruptcy Filing By A Company, Frank Pecorelli

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) operates as a tool allowing an honest, struggling debtor to gain a fresh start absent of their burdensome debts. Generally, when a company is about to enter bankruptcy, shareholders and creditors of the insolvent company play two distinct roles. Shareholders, those with an ownership stake in the company, have voting rights enumerated in their shareholder agreement, allowing them to vote on certain actions, including the company’s bankruptcy filing. On the other hand, creditors generally have a claim (i.e., a right to payment) against the company, which typically has arisen …

Discharge Under Section 524(A) Does Not Preclude A Suit To Recover From A Debtor’S Insurer, Michael P. Pitre

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), a discharge of a debt “operates as an injunction against the commencement or continuation of an action . . . to collect, recover, or offset any debt as a personal liability of the debtor.” This discharge is the “principle advantage bankruptcy offers an individual” because it provides the debtor with a “fresh start” by freeing him from the chains of previous debts.

Even so, a “discharge in bankruptcy does not extinguish the debt itself, but merely releases the debtor from personal liability for the debt.” Therefore, as provided …

Distribution Of Property Overseen By Family Courts Will Not Bar Constructive Fraudulent Transfer Claims, Allyson Rivard

Bankruptcy Research Library

(Excerpt)

In general, a transfer made by a debtor may be avoided under title 11 of the United States Code (the “Bankruptcy Code”) or applicable state law, if the transfer was actually or constructively fraudulent. Actual fraudulent transfer claims require a showing of actual intent to hinder, delay, or defraud creditors. Constructive fraudulent transfer claims do not require proof of actual intent. Instead, a transfer will generally be constructively fraudulent if it is shown that (1) the debtor was insolvent at the time of, or rendered insolvent by, the transfer and (2) so long as the debtor received “less than …

Labor Law Illiteracy: Epic Systems Corp. V. Lewis And Janus V. Afscme, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

Digital Realty Trust V. Somers: Whistleblowers And Corporate Retaliation, Susan B. Heyman

Law Faculty Scholarship

No abstract provided.

When Forum Selection Clauses Meet Choice Of Law Clauses, Tanya Monestier

Law Faculty Scholarship

No abstract provided.

The Daca Case: Agencies’ “Square Corners” And Reliance Interests In Immigration Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

My Decision To Study Law: A Tattoo Artist’S Perspective, Thomas Wilson

Plymouth Law Review

No abstract provided.

Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler

All Faculty Scholarship

This article explores how the death penalty and the indefinite nature of death row in the United States creates a constant threat of death, which can violate the United Nations Convention Against Torture’s prohibitions on death threats.

Environmental Refugees? Rethinking What’S In A Name, Elizabeth Keyes

All Faculty Scholarship

The phrase “environmental refugee” summons a compelling image of someone forced to relocate due to climate change. The phrase has been used effectively to raise awareness of such diverse problems as the rising sea levels that are submerging some Pacific islands, as well as the increased impact of natural disasters like hurricanes and earthquakes which cause a mixture of temporary and permanent migration. As climate change accelerates, and its human costs become ever clearer, it is completely appropriate and necessary to respond to these migrations, and a number of international initiatives are underway to do so.

As these initiatives go …

The Harm Of Child Removal, Shanta Trivedi

All Faculty Scholarship

When the state proves or even merely alleges that a parent has abused or neglected a child, family courts may remove the child from the parent’s care. However, research shows separating a child from her parent(s) has detrimental, long-term emotional and psychological consequences that may be worse than leaving the child at home. This is due to the trauma of removal itself, as well as the unstable nature of, and high rates of abuse in, foster care. Nevertheless, the child welfare system errs on the side of removal and almost uniformly fails to consider the harms associated with that removal. …

Menstrual Justice, Margaret E. Johnson

All Faculty Scholarship

Menstrual injustice is the oppression of menstruators, women, girls, transgender men and boys, and nonbinary persons, simply because they menstruate. Acts of menstrual injustice occur every day in the United States. The narrative of menstruation is that it is a taboo, shameful, and that menstruators are dirty, impure, even dangerous. Menstruation has been shunned generally from public discourse as a result. This narrative negatively impacts menstruators. Menstruators are essentialized as women, often of means, excluding transgender men and nonbinary persons, and menstruators who experience poverty or are young. Menstruating workers, especially low-wage workers, are harassed, penalized, or fired for heavy …

Amateur Regulation And The Unmoored United States Olympic And Paralympic Committee, Dionne L. Koller

All Faculty Scholarship

n the wake of the USA Gymnastics sexual abuse scandal and Women’s National Soccer Team’s claim for pay equity, members of Congress have proposed legislation that would reform the United States Olympic and Paralympic Committee (USOPC) through amendments to its governing statute, the Ted Stevens Olympic and Amateur Sports Act. While an important step in the right direction, the proposed reforms fail to address deeper, more urgent questions about the USOPC, the sport National Governing Bodies (NGBs) it recognizes, and the meaning of the Olympic and Amateur Sports Act. This Article explores those issues by explaining that the USOPC’s quasi-governmental …

An Examination Of The Lethality Assessment Program (Lap): Perspectives On Implementation, Helpseeking, And Victim Empowerment, Margaret E. Johnson

All Faculty Scholarship

The Lethality Assessment Program (LAP) aims to empower law enforcement officers to screen victims of domestic violence for potential lethality and connect them to service providers. This research surveyed domestic violence victims seeking legal services (n = 141) to assess whether LAP receipt is associated with greater rates of self-protective measures, service use, or empowerment, and to examine victims’ perspectives on the LAP process. Findings indicate no relationship between receipt of the LAP and use of self-protective measures or victim empowerment, mixed evidence between receipt of the LAP and service utilization, and room for improvement regarding how law enforcement …

Religious Issues In Child Welfare Cases, Rebecca Stahl

All Faculty Scholarship

No abstract provided.

The Difference In Being Poor In Red States Versus Blue States, Michele E. Gilman

All Faculty Scholarship

While the United States continues to recover from the 2008 Great Recession, the country still faces unprecedented inequality as increasing numbers of poor families struggle to get by with little assistance from the government. Holes in the Safety Net: Federalism and Poverty offers a grounded look at how states and the federal government provide assistance to poor people. With chapters covering everything from welfare reform to recent efforts by states to impose work requirements on Medicaid recipients, the book avoids unnecessary jargon and instead focuses on how programs operate in practice. This timely work should be read by anyone who …

The Ideal Collaborative Partner: A Tribute To Jana Singer, Jane C. Murphy

All Faculty Scholarship

Collaboration has been defined as a “pervasive, long-term relationship in which participants recognize common goals and objectives, share more tasks, and participate in extensive planning and implementation.” I feel most fortunate to have had a collaborative partnership with Jana Singer for almost three decades. I am fortunate because such relationships are uncommon among legal scholars, given the “individualistic culture” of law schools and law professors. Even more unusual, I found in Jana a scholarly partner with all the qualities of the ideal collaborator: strong intellect, enthusiasm, curiosity, generosity, and humility. Since the early days of our academic careers, Jana and …

Tax Treatment Of Legal Fees Under 2017 Tax Cuts And Jobs Act, Fred B. Brown

All Faculty Scholarship

This article describes the deductibility of legal fees for federal income tax purposes after the 2017 Tax Cuts and Jobs Act, and provides a recommendation for reforming the current rules.

Not In My Backyard: State V. Quiday And Warrantless Aerial Police Surveillance, Hayden Brown

Journal of Air Law and Commerce

No abstract provided.

Front Matter

Journal of Air Law and Commerce

No abstract provided.

The 1,500-Hour Rule: When Does Quantity Outweigh Quality?, Andrea Traut

Journal of Air Law and Commerce

No abstract provided.

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Preserving Humanity’S Heritage In Space: Fifty Years After Apollo 11 And Beyond, Andrea J. Harrington

Journal of Air Law and Commerce

As numerous governments and commercial entities plan ambitious expeditions into outer space and to celestial bodies, humanity’s heritage in space is threatened. Fifty years following the Apollo 11 landing, we have recognized the historic, scientific, and cultural importance of this event and other spacefaring firsts, but the existing means to protect the resulting heritage is inadequate. This Article examines the protections currently available to those objects and sites that represent the great achievements of humankind in using and exploring space, with a focus on Tranquility Base—the Apollo 11 landing site. Existing protections are analyzed under both cultural heritage law and …