Law Commons^™

On The Line: Reforming Ocsla As A Mechanism For Fisheries Compensation In The Offshore Wind Era, Madeleine Fenderson

Roger Williams University Law Review

No abstract provided.

Traditional Notions Of Fair Play And Substantial Justice?: The Interplay Between Remote Work, State Regulations, And Personal Jurisdiction, Kathryn M. Couture

Roger Williams University Law Review

No abstract provided.

The Battle Over Gender-Affirming Healthcare For Transgender Minors: Analyzing Anti-Transgender Healthcare Bills In Arkansas And Texas, Brandon Calton

Roger Williams University Law Review

No abstract provided.

Developing A Professional Identity: Lessons For Women, Bipoc, And First Generation Law Students From The Canaries In The Coalmines, Christine Venter

Journal Articles

From the Article

This Article explores the concept of professional identity formation in the law, particularly as it pertains to women and lawyers of color. The topic of professional identity formation is an understudied area in legal education, despite the ABA’s new Standard 303(b)(3), which requires law schools to provide substantial opportunities for the development of professional identity. In the legal field, professional identity is often conflated with professionalism, which leads to confusion about how law schools should best prepare their students for their professional lives, and fails to fully equip students to join the profession.

Studies from other professions …

How American Sports Leagues Can Respond To The Rise Of Sovereign Wealth Funds, Chris Chen

Emory Business Law Review

This Comment explores the transformative impact of well-funded Middle Eastern sports leagues on the global landscape of professional sports. Fueled by substantial financial support from sovereign wealth funds, these leagues have raised concerns about the possibility that domestic American players may choose to leave their current league in favor of one of the opportunities for more lucrative salaries overseas. The rise of LIV Golf catalyzes these discussions. This Comment also delves into how American sports leagues may respond by potentially allowing players to have equity stakes, engage in sponsorships with gambling websites, and participate other revenue-sharing arrangements. The potential corporate …

Courts Are Divided On Whether Electric Energy Is A "Good" Under Section 503(B)(9) Of The Bankruptcy Code, Mari Bijimenian

Bankruptcy Research Library

(Excerpt)

Under Section 503(b)(9) of title 11 of the United States Code (the "Bankruptcy Code"), the value of goods received by a debtor in the ordinary course of business, within 20 days before the date of commencement of a case, can be granted administrative priority status. Bankruptcy courts have grappled with settling on a definition of "goods" because neither Section 503(b)(9) nor the Bankruptcy Code at large define "goods." While the definition of "goods" is a matter of federal interpretation because Section 503(b)(9) of the Bankruptcy Code is federal law, "bankruptcy courts have almost without exception looked to the Uniform …

Fiscal Equity: The Non-Profit Model Of Corporate Ownership, Eric A. San Juan

American University Business Law Review

In an era of excessive executive compensation, the non-profit corporation serves as an exemplary alternative. Voluntarily, some brand-name manufacturers operate under existing law that permits non-profit ownership. Virtually all corporations could become non-profits under a legislative reform potentially more effective than past redistributive measures. Twentieth-century progressive taxation has waned, while initiatives to endow impoverished children with personal accounts have not expanded beyond pilot programs. Instead, economic inequality widens with global industrialization. Traditionally, deprivation led to the call for the abolition of private ownership of the means of production, yet this proved impracticable under revolutionary regimes. A review of the evolution …

Communication Decency Act And The Intellectual Property Exception, Casey Windsor

American University Business Law Review

As the internet proliferated in the 1990s, Congress became concerned with courts impeding the advancement of the internet and the distribution of obscene materials. Congress passed Section 230 of the Communication Decency Act (CDA), which was part of the Telecommunications Act of 1996. Section 230(c), known as the “Good Samaritan” provision, gave broad immunity to interactive computer services providers (ISPs) who monitor third-party content posted to their website.3 Section 230 created the regulatory foundation for modern day ISPs, including social media websites like Facebook.

The Chicken Or The Egg: The Proper Order Of Analysis When Determining The Enforceability Of A Delegation Clause And The Broader Arbitration Agreement In Consumer Contexts, Parker Reynolds

American University Business Law Review

First, this Comment will provide pertinent background on the Federal Arbitration Act (“FAA”) to better understand the intent of the legislation and how it has historically been applied. Second, this Comment will seek to not only explain the underlying cause of the circuit split but also offer a framework for the proper order of analysis in situations with both a delegation claim and an unenforceability claim. Specifically, this Comment will argue that although a delegation clause’s enforceability must be analyzed separately from the entire agreement’s enforceability, the delegation clause must be examined within the context of the arbitration agreement to …

Accidental Corporate Social Norms, David Kwok

American University Business Law Review

Corporations deliberately attempt to shape social norms through advertising, publicity, and political contributions. This paper considers the threat of corporations’ accidental influence on social norms and expectations. When corporations have accidents, we frequently focus on direct harms: an oil platform may catch fire and explode, leading to environmental and human losses. These accidents may also impact social norms, though. If users stay with a dominant social networking firm despite repeated data privacy breaches, for example, people might come to accept a lack of data privacy. Dominant firms may inadvertently facilitate rapid reshaping of societal expectations. Judicial recognition of this threat …

High-Frequency Traders: How The Sec Can Tighten Regulation While Maintaining The Benefits Of A Competitive Market, John I. Sanders

American University Business Law Review

In 2010, the so-called “Flash Crash” of the U.S. stock market brought the overlooked practice of high-frequency trading into the spotlight for the first time. Initial efforts to study and curtail the practice, including a transaction fee pilot attempted by the Securities and Exchange Commission in 2018, have been unsuccessful. After outlining the substantial benefits market participants gain from the activities of high-frequency traders, this article argues that there are three potent and readily available tools for limiting the harmful excesses of those traders: (i) aggressively bring market manipulation charges under § 9(a)(2) of the Exchange Act against those who …

Clothes Captioning: The Demand For A Sustainable Fashion Industry And The European Union’S Push For Digital Product Passports, Grace Baer

American University Business Law Review

First, this Comment will provide background on the demand for transparency on the fashion industry, its response, and the regulatory framework proposed by the EU. Then, Part III will argue that the ESPR and the SSCT fall short of meeting the EU’s objectives because their requirements, as applied to textiles, are too stringent; their enforcement and effect on trade partners too disparate; and the risk of businesses’ intellectual property too high. In Part IV, this Comment will recommend that the EU strengthen its proposals by providing guidance on enforcement, equal treatment of small and medium-sized enterprises (“SMEs”) in the textile …

The Domestic And International Limitations Of The Third-Party Doctrine In The Digital Age, Miguel E. Serrano

American University Business Law Review

This Comment argues that the third-party doctrine further alienates EU-U.S. partnerships because the doctrine subverts privacy interests as binding legal precedent. Part II will explore the history of the third-party doctrine up until the Carpenter decision and explain why U.S. privacy rights are linked with access to third-party information. This Comment will further outline EU data protection laws, EU legislation, and the CJEU’s Schrems II decision. In Part III, this Comment will also analyze the new data protection framework, Executive Order 14086, and discuss whether it fails to overcome the CJEU’s concerns over U.S. privacy laws for EU subjects. By …

Rediscovering Adam Smith: An Inquiry In The Rule Of Law, Competition, And The Future Of The Federal Trade Comission, Melissa Holyoak, Christopher G. Mufarrige

American University Business Law Review

It is my privilege to be here to celebrate the 40th anniversary of the Competitive Enterprise Institute (³CEI´), along with the 300th birthday of Adam Smith. For decades, CEI has been at the vanguard of free-market advocacy, and it is wonderful to combine CEI's anniversary with a celebration of Adam Smith. I will start with a standard disclaimer: The views I express today are my own. They do not necessarily represent those of the Federal Trade Commission (FTC or ³Commission´) or any other commissioner.

U.S. Securities And Exchange Commission And The "Deep Administrative State": A Case Study Of Its Esg Rules, Jerry W. Markham

American University Business Law Review

This study examines the highly controversial “environmental, social, and governance” (ESG) rules that were adopted by the Securities and Exchange Commission (SEC) in 2024. Those rules require large public companies to disclose their policies for dealing with climate change and report their greenhouse gas emissions. Critics charge that those rules are the product of a “deep state” administrative agency that is operating outside the checks and balances imposed by the Constitution on other government actors. The study relates the background for these deep state concerns and the constitutional and statutory restraints that were intended to prevent the development of such …

Hollywood's Triple Threat: Writers, Actors, And Antitrust Regulators Take On The Streaming Giants, Remy S. Farkas

American University Business Law Review

In the summer of 2023, Hollywood froze when actors, writers, and crew took to the picket lines. Their gripe: the recent mega mergers by media conglomerates. The Writers Guild Association and Screen Actors Guild American Federation of Television and Radio Artists joined forces to protest recent acquisitions by Disney, Amazon, and Netflix; these companies vertically integrated within the industry, which allowed them to exploit workers, limit content, and raise prices for consumers. In the same summer, the Department of Justice and Federal Trade Commission released Draft Merger Guidelines, which included thirteen new guidelines for evaluating whether a merger violates antitrust …

State Taxing Power Over Tribal Leasing Activity: Balancing Bracker With The Call To Modernize, Caitlyn Lindstrom

American University Business Law Review

Federal law operates on the premise that state jurisdiction does not interfere with American Indian jurisdiction, and it is generally accepted that states may not tax Indian entities or members. However, the Supreme Court held that there are circumstances in which states may extend taxation onto non-Indians residing on tribal lands. In cases where Indians believe that states are violating legislation or regulations prohibiting state taxation, the Court follows the Bracker balancing test, an interest balancing test that weighs state, federal, and tribal interests. As with most balancing tests, this test lacks strict guidance on how to properly weigh certain …

A Critique Of Guardianship Theory From The Perspective Of Catholic Thought: The Tension Between The Duty To Protect And Preservation Of Legal Autonomy, Lucia A. Silecchia

Scholarly Articles

In recent times, guardianship law has been gaining much public attention – for a variety of reasons. With a steadily aging domestic and international demographic, an increasing number of people contemplate how they will be cared for if they lose capacity. A new variety of alternatives to guardianship have been adopted by states to allow for “supported“ decision- making in numerous ways, while various forms of limited guardianship have emerged as alternatives to the traditional “one size fits all” model of plenary guardianship prevalent in the past. In addition, some advocate abolishing guardianships entirely, believing them to be an affront …

Crisis Standards Of Care And Triage: Medico-Legal Conundrums, George P. Smith

Scholarly Articles

This Article investigates the character, nature, and application of Crisis Standards of Care ("CSC") in national emergency preparedness plans. Ideally, these standards allow a government to codify frameworks or models for allocating scarce medical resources. The principal mechanism used by healthcare decision-makers to evaluate individuals seeking medical assistance is through triage-a diagnostic process utilizing algorithms to sort, grade, or select those who "qualify" for medical treatment. This Article studies the principles and values incorporated into these medical algorithms and concludes that more federal government leadership is required to convince the states that CSC are an integral part of emergency preparedness; …

"Appropriate" Appropriations Challenges After Community Financial, Chad Squitieri

Scholarly Articles

The standard federal agency must come to Congress each year, hat in hand, and request another round of congressional funding. This annual appropriations process ensures that Congress maintains at least some influence over the vast array of rules and regulations that govern Americans' daily lives. Sure, Congress might have delegated broad authority to administrative agencies to develop national policy on Congress's behalf. But an agency reliant on annual appropriations is an agency with the financial incentive to exercise its delegated authority with an eye toward pleasing congressional appropriators. The annual appropriations process is therefore a sensible (even if insufficient) step …

Why Equity Follows The Law, Adam J. Macleod

Scholarly Articles

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a …

Section 363(M) Is Not A Jurisdictional Constraint On Appellate Review Of Property Transfers, Agustin Bujanda

Bankruptcy Research Library

(Excerpt)

Under section 363(b) of title 11 of the United States Code ("the Bankruptcy Code"), the trustee "may use, sell, or lease, other than in the ordinary course of business, property of the estate." Under section 363(m), once a transfer of property has been authorized, the "reversal or modification on appeal of an authorization under subsection (b) . . . of a sale or lease of property does not affect the validity of a sale or lease . . . unless such authorization and such sale or lease were stayed pending appeal."

Until recently, various circuit courts were split on …

Insider May Be An Alter-Ego When It Exercises Control Over A Debtor, Delanie Fico

Bankruptcy Research Library

(Excerpt)

Section 101(31) of title 11 of the United States Code (the "Bankruptcy Code") defines an "insider." This definition, however, is not exhaustive. Courts have concluded that certain persons or entities not mentioned in the statute can be "non-statutory" insiders. In certain circumstances, a statutory or non-statutory insider may be the alter-ego of a debtor. As an alter-ego, an insider may be liable for a debtor’s debt. Alter-ego liability may be imposed on an insider who significantly controls the debtor and has committed some form of injustice.

This memorandum discusses an insider’s possible liability for a debtor’s debt in the …

Creditors Have Standing To Bring Derivative Actions Against Delaware Llcs In Bankruptcy, John D. Hayes Jr.

Bankruptcy Research Library

(Excerpt)

Delaware limited liability companies ("LLCs") are "creatures of contract" and their corporate structure may vary to resemble corporations, partnerships, or a mix of both. Managers of LLCs—like a director or officer of a corporation—owe fiduciary duties to the entity and its members. Generally, the entity has standing to pursue breach of fiduciary duty claims. It is well established that creditors of a corporate debtor may have standing to pursue breach of fiduciary duty claims against directors through derivative actions. Under Delaware law, the applicable statute does not confer standing for creditors of Delaware LLCs to bring derivative actions on …

Equitable Mootness Doctrine Seems To Be Restricted In Application To Complex Reorganizations, Jenna Marshiano

Bankruptcy Research Library

(Excerpt)

The issue in this article is when an appeal from a bankruptcy court order is equitably moot. As to be discussed further infra, generally, courts seem to apply equitable mootness only in complex reorganizations, and there seems to be a trend of restricting the application of the doctrine.

...

Equitable mootness is similar to the concepts of waiver, forfeiture, or even estoppel. The underlying principle of this doctrine is that after time has passed since the implementation of an equitable judgment, the relief that an appellant seeks on appeal becomes "impractical, imprudent, and therefore inequitable." Further, courts aim …

Section 546(E) Safe Harbor Provision Applies To Transactions Involving Private Securities, Nino Aspanadze

Bankruptcy Research Library

(Excerpt)

A bankruptcy trustee may not avoid a margin or settlement payment made by, to, or for the benefit of a financial institution (or another covered entity) when the payment is made in connection with a securities contract as defined in section 741(7) of title 11 of the United States Code (the "Bankruptcy Code"). "A transfer is ‘in connection with' a securities contract if it is 'related to' or 'associated with’ the securities contract.' A bankruptcy trustee may avoid a covered transaction only if it was made with actual intent to hinder, delay, or defraud creditors. The purpose of Section …

U.S. Bankruptcy Courts Balance The Statutory Protections Of Stakeholders With The Needs Of Discovery In Foreign Bankruptcy Proceedings, Conor Carman

Bankruptcy Research Library

(Excerpt)

Chapter 15 of title 11 of the United States Code (the "Bankruptcy Code") establishes methods for managing insolvency cases that encompass debtors, assets, claimants, and other parties across multiple nations. Section 1521(a)(4) allows courts to grant discovery relief. To determine whether to grant discovery relief, courts balance the right to discovery relief with stakeholder interests. As part of a U.S. courts’ analysis, it considers principles of comity to support a foreign bankruptcy proceeding.

This memorandum discusses the statutory availability for discovery relief under chapter 15, limitations on discovery imposed by courts to protect stakeholder interests, comity, and how courts …

A Prepetition Security Interest In Accounts Does Not Extend To The Post-Petition Sale Proceeds Of Real Property, Gabriel Eckstein

Bankruptcy Research Library

(Excerpt)

Section 552(a) of title 11 of the United States Code (the "Bankruptcy Code") states that "property acquired by the estate" after the commencement of the case is not subject to any secured lien possessed by a secured creditor that was created before the commencement of the case. A secured lien is a "legal right or interest of a creditor in a debtor’s property, which lasts until the debt it secures is satisfied." Section 552(b)(1) provides limited exceptions to the general rule in Section 552(a). If a debtor and a creditor entered into a security agreement before the commencement of …

Service Of A Subpoena Through Alternative Means: Social Media, Tayler Eynon

Bankruptcy Research Library

(Excerpt)

Service of a subpoena via a means besides personal service, i.e., "alternative service," has been "routinely authorized" under Rule 45 of the Federal Rules. The functional purpose of requiring delivery is to "ensure receipt," which then allows the enforcement of a subpoena to be consistent with due process. With the development of new means of communication, however, an emerging issue has become whether service of a subpoena via social media may provide similar "evidence of actual receipt." Many courts have read Rule 45 broadly to allow for service of a subpoena through social media if certain fundamental requirements are …

The Regulatory Power Exception To The Automatic Stay, Kathleen Gatti

Bankruptcy Research Library

(Excerpt)

Upon a filing a petition under title 11 of the United States Code (the "Bankruptcy Code"), all actions against a debtor are generally automatically stayed. While the automatic stay is broad, there are exceptions. Under the regulatory power or police power exception, a governmental unit or organization is not stayed from taking any action "to enforce such governmental unit's or organization's police and regulatory power." Not all actions by a government are immune from the automatic stay. Courts have generally held that an action to effectuate a "public policy" is not stayed, but an action to advance the government’s …