Law Commons^™

Date For Determining Subchapter V Eligibility, Frederick Giovanelli

Bankruptcy Research Library

(Excerpt)

The Small Business Reorganization Act of 2019 ("SBRA") created Subchapter V of title 11 of the United States Code (the "Bankruptcy Code"). Subchapter V provides an "expedited process for small business debtors to reorganize quickly, inexpensively, and efficiently." To be eligible under Subchapter V, a debtor must satisfy the four requirements listed in section 1182(1) of the Bankruptcy Code. However, even if all four requirements are met, there are four exceptions that exclude a debtor from Subchapter V eligibility. In several instances, creditors have argued that these requirements are continuing obligations, so the debtor’s post-petition actions can revoke their …

Ability To Assume A Contract Over The Objections Of Third Party Beneficiaries Or Counterparty That Is Not Subject To U.S. Personal Jurisdiction., Matthew Hanauer

Bankruptcy Research Library

(Excerpt)

Under Title 11 of the United States Code (the "Bankruptcy Code"), a trustee or a debtor in possession may assume or reject any executory contract and unexpired leases subject to court approval. If a debtor rejects a contract, they breach the agreement. After rejection, neither party is obligated to continue performance, and the counterparty has a general unsecured claim against the debtor. If a debtor assumes an executory contract, then the parties continue to act in accordance with the terms of the contract. To assume a contract, a debtor must cure any defaults, compensate the counterparty for any pecuniary …

Whether Electricity Is A "Good" Under 11 U.S.C. § 503(B)(9), Zhiqian Ke

Bankruptcy Research Library

(Excerpt)

Under section 503(b)(9) of title 11 of the United States Code (the "Bankruptcy Code"), administrative expenses should be allowed for "the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debtor’s business." Courts uniformly analyzed the Uniform Commercial Code’s (the "UCC") definition of “goods” in the absence of a definition in the Bankruptcy Code. However, courts are split on whether electricity is a good.

This memorandum will explore the courts' …

Interest Rate Determination Methods In Bankruptcy Chapters 11, 12, And 13, Michael Kleinman

Bankruptcy Research Library

(Excerpt)

The United States Supreme Court's decision in Till v. SCS Credit Corp. established a formula approach for determining interest rates in cases filed under chapter 13 of title 11 of the United States Code (the "Bankruptcy Code"). The Till decision implemented the formula approach, requiring the national prime rate to be augmented by a risk premium to account for the debtor's heightened nonpayment risk. Till is limited to chapter 13 cases, however, courts have applied the Till test in chapter 11 and 12 cases.

This memorandum examines the different methods utilized in bankruptcy to determine appropriate interest rates. Section …

How Courts Differ In Applying The Countryman Test To Determine If Settlement Agreements With Sequential Performance Are Executory Contracts Under Section 365 Of The Bankruptcy Code, Shannon Mcgarr

Bankruptcy Research Library

(Excerpt)

Settlement agreements will often contain sequential responsibilities, meaning that one party’s obligations are not due until the other party’s obligations are fulfilled. While such settlement agreements are contractual in nature, this does not automatically entitle them to be considered executory contracts under section 365 of title 11 of the United States Code (the "Bankruptcy Code").

Section 365 of the Bankruptcy Code does not define "executory contract." Many courts employ the "Countryman test" which states that "a contract is executory if 'the obligations of both parties are so underperformed that the failure of either party to complete performance would constitute …

Amended Proofs Of Claims That Present A New Request For Relief Could Be Disallowed, Lianna Meehan

Bankruptcy Research Library

(Excerpt)

When a creditor seeks to amend a proof of claim after the bar date has passed with an amount different to that provided in the original proof of claim, courts engage in an equitable analysis of multiple factors to determine whether to grant or deny the motion to amend. Under certain circumstances, Bankruptcy Rule 9006(b)(1) gives creditors an opportunity to file a proof of claim after the bar date has passed.

...

This memorandum examines whether a creditor can amend a timely-filed proof of claim after the bar date has passed with an amount that is unrelated to the …

The Timing Of A Debtor's Petition For Bankruptcy Can Determine If A Pending Title Pawn Contract Becomes Property Of A Debtor's Estate, Jack Reilly

Bankruptcy Research Library

(Excerpt)

Section 541 of title 11 of the United States Code (the "Bankruptcy Code") determines whether property comes into a debtor's bankruptcy estate falling under the protection of the automatic stay afforded by section 362 of the Bankruptcy Code. Bankruptcy Code section 541 defines property of the estate as "all legal or equitable interests of the debtor in property as of the commencement of the case[.]" What constitutes a debtor's "legal or equitable interest" in property is determined by state property law, making state law the determining factor in whether a debtor's interest in a specific property constitutes property of …

Good Faith Chapter 11 Filings Require The Debtor To Show Valid Reorganization Purpose And Financial Need For Bankruptcy, Daniella Sesto

Bankruptcy Research Library

(Excerpt)

Section 1112 of title 11 of the United States Code (the "Bankruptcy Code") enumerates a non-exhaustive list of sixteen factors justifying dismissal of a bankruptcy case for lack of good cause, but bankruptcy courts have the authority to consider other factors as they arise and use equitable powers to reach appropriate results in individual cases. Bankruptcy courts have determined that "good faith" is a requirement to remain in bankruptcy, and "bad faith" is among the reasons to dismiss. To date, no court has adopted a universally accepted definition of good faith.

In recent cases, courts have used their discretionary …

Innocent-Spouse Relief And Other Tax Remedies In Bankruptcy, Panayiotis Xenakis

Bankruptcy Research Library

(Excerpt)

Innocent-spouse relief is an equitable remedy provided by Internal Revenue Code section 6015(f), where the Secretary of the Treasury may "relieve [an] individual of . . . liability" if "taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency . . . ." Essentially, it provides a joint-filer who normally is jointly and severally liable for the tax liabilities of his or her spouse relief from liability if it would be inequitable to do otherwise.

...

This memorandum addresses: (1) the limits of a bankruptcy court’s …

Racial Preferences In Employment After Students For Fair Admissions V. Harvard, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

Loot Boxes May Exploit Gamers, But Their Sale Does Not Constitute Unlawful Gambling, John J. Chung

Law Faculty Scholarship

No abstract provided.

From Andy Warhol To Barbie: Copyright’S Fair Use Doctrine After Andy Warhol Foundation V. Goldsmith, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Conflicts And Confluences Between Surface And Mineral Estates With Ccus, Joseph Schremmer

Faculty Articles

Carbon capture, utilization, and storage (CCUS) presents a new way of using an old resource: the subterranean rock structures and their interstitial “pore” space that make up the subsurface of the earth. Injecting carbon into these structures also raises a number of new legal questions about their ownership and the relations between the owners of the structures and the owners of other subsurface resources contained within them, like oil and gas, coal, coalbed methane, and geologically native carbon dioxide. This Article explores these new legal questions and the conceptual difficulties they present with the aim of guiding participants in CCUS …

Affirmative Action's Asian American Problem, Huyen Pham, Joseph Thai

Faculty Articles

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten history is …

Indianness As Property, Carla Pratt

Faculty Articles

This Article expands upon the seminal work by Cheryl Harris entitled Whiteness as Property by exploring the intersection of race and property through Indianness. Indianness has been constructed as a form of property conferring rights and privileges to its holders which this Article examines through the inertial relationship between race and legal status. Tracing the historical evolution of Indianness from the slavery era to the modern era demonstrates the complex relationship between tribal sovereignty, citizenship and Indian identity. This legal history contextualizes contemporary disputes over who can enjoy tribal citizenship and be Indian. This Article advocates for a reevaluation of …

Building Technology Competence: Navigating The Levels: A Road Map To Proficiency In The Legal Tech Landscape, Kenton S. Brice

Other Faculty Publications

No abstract provided.

Route Competition In Hong Kong's Aviation Industry, Yizhang Qiu, Sinchit Lai

Journal of Air Law and Commerce

Open sky policies have been implemented for decades, giving birth to many airline newcomers from diverse backgrounds lifting off into liberalized skies. EasyJet, Ryanair, Wizz Air, and Southwest Airlines are examples of independent budget airlines, branding the outcome of aviation liberalization and contributing to interoute competition through their networks. However, Hong Kong International Airport, which aspires to be a better and greater air hub, is crowded with local carriers, and the airport flight timetables rarely show the presence of non-local budget airlines or competing routes. This Article examines the importance of interoute competition and the role that budget airlines play …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Treaties Establishing Icao And Imo – A Comparative Study, Ruwantissa Indranath Abeyratne

Journal of Air Law and Commerce

The comparison between air law and maritime law reveals both similarities and distinctions rooted in the unique frameworks of the International Civil Aviation Organization (ICAO) and The International Maritime Organization (IMO). While both entities were established through separate treaties, the Chicago Convention birthed ICAO, emphasizing the organization’s Assembly, Council, and auxiliary bodies. In contrast, the IMO Convention, also known as the Convention on the International Maritime Organization, forms the basis for IMO’s structure and functions as outlined in its preamble. The core objectives of IMO revolve around fostering collaboration among governments to enhance regulatory frameworks for international maritime trade. This …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Proposed Methodologies To Cure The No-Fly List’S Current Violations Of The Due Process Clause For Affected U.S. Citizens, Sierra Stone

Journal of Air Law and Commerce

Often, the No-Fly List is a helpful tool that increases the safety of commercial aviation for U.S. citizens flying domestically and internationally. The TSA and various intergovernmental agencies utilize a nomination process and those who meet the requisite criteria are added to a database and can be entered into the No-Fly List. Once being placed on the “List,” an individual is no longer allowed to board a flight flying anywhere within or over U.S. airspace. However, for a small number of people, this deprivation of the ability to fly came unjustifiably and without realistic opportunities to be removed from the …

Green Colonialism: Sidelined While On The Front Lines, M. Alexander Pearl

Faculty Articles

No abstract provided.

The Consequences Of Mythology: Supreme Court Decisionmaking In Indian Country, M. Alexander Pearl

Faculty Articles

Ilanoli isht unowa. We tell our own stories. A single historical event has many stories. Although this nation's official chronicle expected and even hoped for Indigenous peoples to fade away, we are still here. Our histories are marked by resistance, survival, sovereignty, and renaissance. Only now, in the later stages of the American experiment, do our histories have the chance to matter in new forms and spaces. How much these stories matter within contemporary contexts depends upon where they are spoken and more importantly, who is listening. On the pages of a U.S. Supreme Court opinion, what stories are told …

Growing Tensions: Consumer Privacy And Corporate Disclosures, Megan Wischmeier Shaner

Faculty Articles

Data privacy and data security have become key issues for legislators, regulators, and individual citizens. Roughly two-thirds of Americans believe their data is being regularly tracked, monitored, and collected by companies and the government. A majority of U.S. adults also believe their data is less secure today than five years ago, expressing concerns that they have little control over how their personal information is being used and that the entities who control their data are not responsible stewards. In the absence of comprehensive federal regulation, a continuous stream of privacy statutes have been proposed at the state level. Beginning with …

The Potential For Conflicts Between Ccs Projects And Mineral Extraction, Joseph Schremmer

Faculty Articles

This article classifies the types of conflicts likely to occur between carbon dioxide sequestration and mineral extraction operations occurring simultaneously on the same tract of land. It then sets up framework for thinking through the legal disputes that may result. These are modest goals, and the central problem—concurrent carbon dioxide sequestration and mineral development—is more complex than can be fully analyzed here. I expect that much more work will need to be done on other important questions, hopefully building on this framework. Three further questions worthy of attention are (i) how these principles guide resolutions of specific kinds of disputes, …

Unconscionability And Poverty, Mark G. Kelman

SMU Law Review Forum

Matthew Desmond made the claim in Evicted, his powerful work on housing insecurity, that those concerned with alleviating poverty should focus not merely on ensuring that poor people have higher disposable incomes, but on countering the exploitative price gouging that depresses the value of whatever income they have. This suggests the possibility that it might be a worthwhile anti-poverty strategy for courts to use the unconscionability doctrine to regulate exploitative contracts.

Three main issues follow from considering this possibility: (1) Do the poor actually pay more for goods of the same quality? (2) If they indeed pay more, do …

The Cost Of Clarity: Closing The Floodgates On Wotus Ambiguity And The Bleak Future Of Wetlands Protections, Casey E. Lindstrom

Case Western Reserve Law Review

No abstract provided.

Masthead, Volume 75 Issue 1 (2024)

Case Western Reserve Law Review

No abstract provided.

Overcoming Unreasonably Burdensome Restrictions On The Use Of Farmland For Solar Generation, Matthew Eisenson

Case Western Reserve Law Review

No abstract provided.

If We Fail To Solve Global Climate Change, Blame The Nuclear Regulatory Commission, Jeremy Kidd

Case Western Reserve Law Review

No abstract provided.