Law Commons^™

The Wild West Of Data Privacy: Why Rhode Island Needs To Enact Comprehensive Legislation To Protect Consumers’ Data, Candace Quinn

Roger Williams University Law Review

No abstract provided.

Kumble V. Voccola, 253 A.3d 1248 (R.I. 2021), Aryamen Andrew Omshehe

Roger Williams University Law Review

No abstract provided.

Belmore V. Petterutti, 253 A.3d 864 (R.I. 2021), Whitney A. Saunders

Roger Williams University Law Review

No abstract provided.

Changemakers: Rewards Of The Road Less Traveled: Dylan Collins, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Changemakers: Master Of Studies In Law: 'Law Isn't A Foreign Language Anymore', Roger Williams University School O Law

Life of the Law School (1993- )

No abstract provided.

Changemakers: Master Of Studies In Law: 'Radical Imagination, Radical Listening', Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Changemakers Master Of Studies In Law: Adding Depth: Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Private Student Loans May Be Dischargeable In Bankruptcy Without Meeting The Undue Hardship Requirement And If Not, There Are Two Ways To Prove Undue Hardship, Kimberly Lee

Bankruptcy Research Library

(Excerpt)

Section 523 of title 11 of the United States Code (the “Bankruptcy Code”) prevents former students from discharging certain educational debts in bankruptcy, unless the failure to discharge “would impose an undue hardship on the debtor and the debtor’s dependents.” Typically, it is a debtor’s burden to show that their loans may be discharged on the grounds of “undue hardship.” However, Congress has not defined “undue hardship” leaving jurisdictions divided regarding the appropriate test. Most courts have followed the Brunner three-prong test, while only the First and Eighth Circuits use the totality of the circumstances test.

Additionally, section 523(a)(8) …

Analysis Of Courts' Discretion To Enforce Arbitration Of Core Claims, Sarah L. Hautzinger

Bankruptcy Research Library

(Excerpt)

In general, a bankruptcy court has original and exclusive jurisdiction of chapter 11 bankruptcy cases. However, problems arise when a prepetition contract contains an arbitration clause, and a court must decide if it has discretion to enforce arbitration of a core claim. The statutes that play essential (but competing) roles in a court's analysis are the Federal Arbitration Act ("FAA") and the United States Bankruptcy Code (the "Bankruptcy Code"). In sum, "bankruptcy policy exerts an inexorable pull towards centralization while arbitration policy advocates a decentralized approach toward dispute resolution."

In these cases, a bankruptcy court must determine if there …

Availability Of Setoff To Foreign Debtors And Representatives In U.S. Courts, Joseph Muschitiello

Bankruptcy Research Library

(Excerpt)

Setoff is the principle of allowing a party to reduce the debt it owes to an entity by applying a credit for any claim it has against the same entity. The purpose of setoff rights is rooted in “avoiding the absurdity of making A pay B when B owes A.” It is meant to be used by debtors as affirmative defenses or counterclaims. Section 553 of title 11 of the United States Code (the “Bankruptcy Code”) generally preserves the right of setoff in bankruptcy cases.

This memorandum explores how and when foreign debtors and representatives may exercise setoff rights …

Legal Issues In Tribal E-Commerce, Adam Crepelle

American University Business Law Review

No abstract provided.

Empirical Evidence On Robot Taxation: Literature Review And Technical Analysis, Bret N. Bogenschneider

American University Business Law Review

The literature on robot taxation has continued to expand since 2018 with numerous articles now referring to empirical evidence. The evidence presented in prior studies comprises abstract modeling and statistical pattern reviews with no statistically significant findings reported to date. Notably, one article is an advocacy piece by a tech lobbyist who at one point purchased priority Google results for the search "robot taxation." In some cases, technical errors are sufficient to reverse the stated results. Examples of error in empirical analyses include (i) motivated reasoning, such as the failure to model simpler or best explanations; (ii) lack of causal …

Recent Law Reforms In Eu Sustainable Finance: Regulating Sustainability Risk And Sustainable Investments, Felix Mezzanotte

American University Business Law Review

Responding to increasingly degrading environmental and social conditions, the European Commission has fostered important legal and regulatory reforms to achieve sustainable finance objectives in Europe. However, these reforms are numerous, complex, and fast-paced. They have proved difficult to grasp and contextualize, while adding to the intricacies of an already highly sophisticated EU legal and regulatory regime. This Article outlines and examines such reforms with the purpose of providing necessary insights into the current state of EU law and regulation in the area of sustainable finance. The first part of the Article conceptualizes the meaning of sustainability risk and of sustainable …

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by …

Equitable Subordination Of A Claim Depends On Insider Status, Conduct Of The Claimant, And If There Was Harm, Nicholas Smargiassi

Bankruptcy Research Library

(Excerpt)

Equitable subordination is a remedial doctrine pursuant to which a creditor’s claim may be subordinated to other claims. The doctrine is designed to “undo or to offset any inequality in the claim position of a creditor that will produce injustice or unfairness to other creditors in terms of the bankruptcy results.” Equitable subordination is codified in section 510(c) of Title 11 of the United States Code (the “Bankruptcy Code”). Section 510(c) of the Bankruptcy Code “authorizes a bankruptcy court to ‘subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed …

The Barton Doctrine's Applicability To Suits Against Bankruptcy Trustees When The Bankruptcy Court Lacks Jurisdiction Over The Matter, Chelsea Frankel

Bankruptcy Research Library

(Excerpt)

In Barton v. Barbour, the Supreme Court established the general rule that a lawsuit cannot be brought against a receiver for acts done within their authority without leave of the court that appointed such receiver. The Court precluded a personal injury suit against a company's receiver without leave of the appointing court, finding that if the plaintiff were permitted to recover on his personal injury claim against the receiver, he would be recovering from the receivership property "without regard to the rights of other creditors or the orders of the court which is administering the trust property." The …

Ownership Status Of Inherited Retirement Accounts In Bankruptcy, Aron Kaplan

Bankruptcy Research Library

(Excerpt)

Immediately upon filing a petition for relief under title 11 of the United States Code (the “Bankruptcy Code”), a bankruptcy estate is created by operation of law that consists of the debtor’s assets from which the creditors will be repaid. The Bankruptcy Code states that the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” This broad language reflects Congress’s intent that there be sufficient assets in the estate to protect the interests of creditors.

Despite this broad legislative language, there are certain categories of property that the debtor …

Fdcpa Claims: Are Intangible Injuries “Concrete” Injuries?, Kimberly Moyal

Bankruptcy Research Library

(Excerpt)

The Fair Debt Collection Practices Act (“FDCPA”) was passed to prohibit a debt collector from engaging in abusive debt collection practices. The FDCPA serves to protect a consumer by giving a consumer a statutory claim against an abusive debt collector. In 2016, the U.S. Supreme Court, in Spokeo, Inc. v. Robins, ruled that a party pursuing a statutory claim, like an FDCPA claim, must meet the Article III standing requirements of the U.S. Constitution. To establish the first element of the Article III standing analysis, the plaintiff must prove that they suffered a “concrete and particularized” injury.

After …

A Hotel Does Not Meet The Definition Of "Single Asset Real Estate" And May Reorganize Under Subchapter V Of Chapter 11 Of The Bankruptcy Code, Patrick Canavan

Bankruptcy Research Library

(Excerpt)

Enacted via the Small Business Reorganization Act ("SBRA") in 2019, Subchapter V streamlines the reorganization process, allowing small business debtors to file bankruptcy in a timely and cost-effective manner. The goal behind the legislation is to encourage reorganizations, which will generally result in creditors receiving a higher distribution than in a liquidation and more small businesses surviving. Section 1182(1) of title 11 of the United States Code (the "Bankruptcy Code") limits those who can file a Subchapter V case to a "small business debtor" who does not own a "single asset real estate" project ("SARE"). Thus, if the debtor …

The Effect Of Insider Status On The Court's Approval Of A Key Employee Retention Plan, Perry Chresomales

Bankruptcy Research Library

(Excerpt)

When a company that has filed for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") seeks to retain essential employees through the course of its bankruptcy, the payments made with the goal of retaining key employees are subject to the requirements of section 503(c) of the Bankruptcy Code. These payment plans, also known as Key Employee Retention Plans or "KERPs", are designed to "provide certain Key Employees with a financial incentive to forgo seeking alternative employment during the Debtors' bankruptcy proceeding as well as after confirmation of a chapter 11 plan." In …

Courts Apply A Case-By-Case Analysis In Distinguishing A Meritorious Motion To Disqualify From A Delaying Litigation Tactic, Cathrena Collins

Bankruptcy Research Library

(Excerpt)

It is becoming increasingly rare for an attorney to remain at the same firm for an entire career. Lateral movements of lawyers coupled with large firms employing hundreds of attorneys creates ample opportunity for conflicts of interest to arise. The American Bar Association explains a conflict of interest is present when "there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the other lawyer's responsibilities or interest." Furthermore, Rule 1.10(b) dictates that a lawyer joining a new firm …

The Various Methods Circuit Courts Use To Define "Initial Transferee" In Fraudulent Transfers, Anthony J. Crasto

Bankruptcy Research Library

(Excerpt)

Transfers of a debtor's interest or obligation in property to a third party, made to prevent creditors from reaching assets in a bankruptcy case, are known as fraudulent transfers. Under current law, there are two types of fraudulent transfers: actual fraud and constructive fraud. Actual fraud requires findings of a debtor's "intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted." Constructive fraud does not require a finding of intent and occurs when a debtor receives "less than …

Erisa Withdrawal Liability Claims Unlikely To Receive Administrative Expense Priority Status In A Chapter 11 Reorganization, Bridget Golden

Bankruptcy Research Library

(Excerpt)

An employer who withdraws their participation in a multi-employer defined benefits plan is statutorily required to pay the plan a withdrawal liability. Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), provides a number of formulas to assist a multi-employer defined benefits plan's actuary with calculating the withdrawal liability amount. Congress imposed withdrawal liability on withdrawing employers "(1) to protect the interests of participants and beneficiaries in financially distressed multiemployer plans, and (2) ... to ensure benefit security to plan participants." An employer's ability-and willingness-to pay withdrawal liability …

Enforceability Of Third-Party Releases In Foreign Proceedings Under Chapter 15, Anastasia Greer

Bankruptcy Research Library

(Excerpt)

In our increasingly globalized world, cross-border insolvency proceedings brought under chapter 15 (herein "Chapter 15") of title 11 of the United States Code (the "Bankruptcy Code") are on the rise - with over 100 additional filings in 2020 alone. Third-party releases are provisions in bankruptcy plans intended to release non-debtors (including shareholders, directors, officers, and affiliates) from claims creditors hold against other members of their class. A third­ party release can "act as a complete release, waiver, and discharge of that party ... arising out of or in connection with the debtor and its plan of reorganization." While the …

A Debtor's Eligibility For Relief Under Subchapter V Of Chapter 11, Nicholas Hasbún

Bankruptcy Research Library

(Excerpt)

In February of 2020, the Small Business Reorganization Act of 2019 ("SBRA") became effective and added a new subchapter ("Subchapter V") to title 11 of the United States Code (the "Bankruptcy Code"). Subchapter V, which is incorporated into chapter 11 of the Bankruptcy Code, was established to create an efficient process for small business debtors to "reorganize quickly, inexpensively, and efficiently." To proceed under Subchapter V, a debtor must meet the definition of a debtor under section 1182(1) of the Bankruptcy Code and must elect its application pursuant to section 103(i) of the Bankruptcy Code. Under Subchapter V, an …

The Approval Of Retirement Contributions In Chapter 13 Payment Plans, Jennifer Hepner

Bankruptcy Research Library

(Excerpt)

In the United States, employees often contribute a portion of their annual income to their 401(k) retirement plans. These contributions may fluctuate based on age, income, or additional contributions by employers. At the same time, chapter 13 debtors are often required to pay at least a portion of what is owed to creditors as part of their court-approved payment plans. A court will only approve a debtor's chapter 13 payment plan if a debtor contributes all of his "projected disposable income" to pay creditors over the "applicable commitment period." While disposable income is defined as the "current monthly income …

Assessing The Two Tests Courts Use To Determine Dischargeability Of Student Loan Debt, Sean B. King

Bankruptcy Research Library

(Excerpt)

The purpose of bankruptcy is to give honest debtors a “fresh start.” For debtors with student loans this purpose is not automatic, rather, the viability of the student loan programs takes precedence. For student loans, the default rule is they are not dischargeable in bankruptcy. Title 11 of the United States Code (the “Bankruptcy Code”) spells this out. Under section 523(a)(8) of the Bankruptcy Code, student loans must create an “undue hardship” to be discharged.

The issue is how courts determine undue hardship under section 523(a)(8). The term “undue hardship” is not defined in the Bankruptcy Code, rather, it …

The Split In The Application Of Section 109(A) Requirements To Chapter 15 Cases, Kate Long

Bankruptcy Research Library

(Excerpt)

Chapter 15 of title 11 of the United States Code (the “Bankruptcy Code”) governs recognition of foreign bankruptcy, insolvency, and debt-restructuring proceedings. Section 1517 of the Bankruptcy Code generally sets forth the requirements for recognition. In addition to those requirements, some courts have held that a foreign debtor must satisfy traditional debtor eligibility requirements for a debtor’s foreign proceeding to be recognized under Chapter 15. Other courts disagree and hold that a foreign debtor does not need to meet the traditional requirements for its foreign proceeding to be recognized under Chapter 15.

This memorandum explores the applicability of the …

Age As A Factor In Determining Discharge Of A Debtor’S Student Loan Debt, Julia Merani

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides for debtors a “fresh start” by allowing the discharge of most debt. To obtain a discharge of student loan debt, a debtor must demonstrate “undue hardship.” If the debt is not discharged, it must still be paid. The phrase “undue hardship” is not defined in the “Bankruptcy Code and congressional record provides little guidance as to what constitutes undue hardship . . . .” Even though Congress created a single standard for discharging student loan debt; the circuit courts have adopted different tests to determine if the undue …

Quitclaim Deeds, Divorce Decrees: Homestead Exemptions For Transferred Marital Property Across “Tenancy By The Entirety” And “Community Property” Jurisdictions, Elijah Newcomb

Bankruptcy Research Library

(Excerpt)

The quit claim deed is an instrument that transfers a property interest from a grantor to a grantee, without making any other representations. Quit claim deeds are common among spouses and divorcing couples as concerns regarding title defects are mitigated. These transfers have resulted in bankruptcy cases where a recipient-spouse receives a property interest encumbered by a lien, and tries to evade liability. A debtor can attempt to avoid a lien through an exemption. Exemptions are statutory provisions which can protect qualified property in a bankruptcy action. Section 522 of Title 11 of the United States Code (the “Bankruptcy …