Law Commons^™

Trademark Proprietors' "Moral Right" As An Exception To The Doctrine Of Exhaustion Of Rights In Trademarks, Sahana Simha, Ram Mohan M P

American University Business Law Review

Trademark law is primarily viewed as a consumer protection law. Proprietary and consumer interests are not always balanced. This is especially the case with the doctrine of exhaustion of rights in trademarks, where the trademark owner loses control over the further distribution of their trademarked product once sold. Existing statutory exceptions to this doctrine allow the proprietor to take action against resellers only when the product has been impaired or changed. The exceptions do not account for harm or damage to the reputation and goodwill associated with a trademark as a ground to override exhaustion. This article analyzes legislative and …

The Death Of Amateurism: How A Vertical Restructuring Of The Ncaa Could Preserve Its Role As The Governing Body Of Collegiate Athletics, Miles M. Mcdonald

American University Business Law Review

The National Collegiate Athletic Association (NCAA) is struggling to survive as an organizational entity because of near-constant litigation over university and student-athlete rights. As we enter an era of “amateur” sports where student-athletes can earn unrestrained financial compensation for their efforts, the NCAA is struggling to convince stakeholders that it has a worthwhile plan for the everchanging landscape of collegiate athletics. The NCAA retained a purpose as a governing entity when its rules relating to financial inducements and transfer eligibility were enforceable. Now, stakeholders look to separate themselves from the NCAA. To maintain a purpose and survive as the governing …

Bruen Was Right, J. Joel Alicea

Scholarly Articles

New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the …

A Workable Common Law Baseline For Regulatory Takings, Adam J. Macleod

Scholarly Articles

Rights to use property are property rights. The Takings Clause of the Fifth Amendment requires governments to provide just compensation when they take property. In our constitutional republic, legislatures are competent to change the law, and legal changes sometimes alter private rights, including use rights. The Takings Clause does not forbid such legal changes. It only requires compensation for property rights taken as a result. To give use rights the constitutional protection that the Takings Clause requires, courts need a baseline of rightful property use to show when a change in the law that adversely affects use rights amounts to …

Forging Monetary Hawks: Early-Life Inflation Experiences And Government Debt In Africa, Christine Strong

Economics Faculty Publications

This study uses a novel dataset to examine the impact of early‐life inflation experiences on government debt across 30 African nations from 1980 to 2022. We propose that central bankers who encountered inflation crises during their formative years are more likely to develop preferences for hawkish monetary policies. However, for these preferences to influence fiscal outcomes, central bankers must operate within an environment of institutional independence. Indeed, our analysis reveals that past exposures to inflation crises, on their own, have no statistically significant impact on government debt. However, when central bank independence is accounted for, a significant negative relationship emerges, …

Rejection Of An Executory Contract Does Not Invalidate Rights Exercised Or Performance Rendered Prior To Rejection, Samantha B. Caraballo

Bankruptcy Research Library

(Excerpt)

Under section 365 of Title 11 of the United States Code (the "Bankruptcy Code"), a trustee or a debtor in possession may "reject" an executory contract. Rejection results in a breach of contract. Courts consider non-bankruptcy contract law to determine the impact of the breach on the executory contract. In general, rejection does not undo a party’s past performance or exercise of rights under the contract. Instead, it relieves a debtor from its future obligation to perform.

Part I of this Article explains the different approaches to defining "executory contract." Part II of this Article elaborates on a trustee …

Property Of The Estate Under Section 541—Accrual Of Causes Of Action And The "Sufficiently Rooted" Test, Hayung Park

Bankruptcy Research Library

(Excerpt)

This article examines the scope of property included in a bankruptcy estate under section 541 of the Bankruptcy Code, with a focus on causes of action arising both before and after the bankruptcy petition date. Courts apply a two-part analysis to determine whether a claim is part of the estate: (1) whether it accrued as of the petition date, and (2) whether a post-petition claim is sufficiently rooted in the pre-bankruptcy past. This article explores how courts interpret and apply these components to determine estate property.

Non-Consensual Third-Party Releases From Mass-Tort Liabilities Cannot Be Part Of A Chapter 11 Plan, Seth Woodhall

Bankruptcy Research Library

(Excerpt)

Chapter 11 bankruptcy is a process that has allowed many corporations to "work with its creditors to develop a reorganization plan governing the distribution of the estate’s assets[.]" Under 11 U.S.C. §1141(a) once the bankruptcy court confirms the plan, that plan becomes legally binding on the debtor and all creditors—including those who may have not agree to it. "Some plan terms are mandatory, §1123(a); others are optional, §1123(b). [Terms permitting a third-party release] is a provision a debtor may include and a court may approve in a reorganization plan." By presenting a plan to the bankruptcy court as part …

Dismissal Of Chapter 11 Cases For Lack Of Good Faith Filing, Amanda Alongi

Bankruptcy Research Library

(Excerpt)

Section 1112 of title 11 of the United States Code (the "Bankruptcy Code") provides that a Chapter 11 case can be converted or dismissed, upon the request of an interested party, "for cause." While cause is required, the Bankruptcy Code does not provide a definition. Rather, section 1112(b)(4) provides a non-exhaustive list of examples that constitute "cause." In addition to the statutory examples, almost all courts interpret "cause" to include a lack of good faith. The Bankruptcy Code also does not define good faith, resulting in courts adopting different approaches to determine good faith. Therefore, when an interested party …

The Delaware Bankruptcy Court's Approach To The Subjective Prong Of The Ordinary Course Of Business Defense, Andrew Cardello

Bankruptcy Research Library

(Excerpt)

The ordinary course of business defense (the "OCB Defense") to preference claims under section 547(c)(2)(A) of title 11 of the United States Code (the "Bankruptcy Code") protects transfers that are consistent with previous transactions between a debtor and creditor. In evaluating this defense, the United States Bankruptcy Court for the District of Delaware (the "Delaware Bankruptcy Court") conducts a fact-intensive inquiry into whether the challenged transfers were consistent with the parties’ previously established business practices. Key considerations include the length and regularity of the relationship, the timing and method of the transactions, and the absence of aggressive collection tactics …

Insurers Have Standing To Object To Reorganization Plans, Haley Daniels

Bankruptcy Research Library

(Excerpt)

Section 1109 of title 11 of the United States Code (the "Bankruptcy Code") allows any "party in interest" to raise, appear, and be heard on any issue in a chapter 11 bankruptcy case. The term party in interest is not otherwise defined in the Bankruptcy Code. The United States Supreme Court has interpreted the phrase to describe a party that has a sufficient stake in the outcome of the bankruptcy reorganization. Importantly, Section 1128(b) of the Bankruptcy Code explicitly provides that a party in interest "may object to confirmation of a plan" in a chapter 11 case.

The United …

Granting A Stay For Non-Debtors, Daniel Denaroso

Bankruptcy Research Library

(Excerpt)

Under section 362 of title 11 of the United States Code (the "Bankruptcy Code"), the filing of a bankruptcy petition results in an automatic stay of actions against a debtor or its assets. While the automatic stay is primarily for the benefit of the debtor, courts have generally extended the stay to non-debtors. However, the Supreme Court disrupted this principle in Purdue by interpreting that the Bankruptcy Code does not authorize a release that effectively discharges a non-debtor’s obligations. Since then, courts have generally interpreted Purdue narrowly to avoid eliminating the ability to grant a stay for non-debtors.

This …

The Valuation Of Crypto Currency Mining Property Under 11 U.S.C. § 506(A)(1), Michael Galletti

Bankruptcy Research Library

(Excerpt)

Section 506(a)(1) of title 11 of the United States Code (the "Bankruptcy Code") provides that a secured creditor's claim is "a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property . . . and is an unsecured claim to the extent that the value of such creditor's interest . . . is less than the amount of such allowed claim." The valuation of collateral is determined "in light of the purpose of the valuation and of the proposed disposition or use of such property." However, the Bankruptcy Code is …

Reconsideration Of A Previously Allowed Or Disallowed Claim Under Section 502(J) Of The Bankruptcy Code In New York And Delaware., Kalina Mesrobian

Bankruptcy Research Library

(Excerpt)

Section 502(j) of title 11 of the United States Code (the "Bankruptcy Code") states that "[a] claim that has been allowed or disallowed may be reconsidered for cause" in a bankruptcy case. 11 U.S.C.S. §502(j). Section 502(j) further states that "a reconsidered claim may be allowed or disallowed according to the equities of the case." Id. There is no definition of "for cause" or "according to the equities of the case," but the courts have generally held that reconsideration ultimately "lies within the discretion of the court." This article will analyze the scenarios under which a bankruptcy court in …

Debtors Entitled To Only Prospective Relief For Extra Trustee Fees Paid Under Unconstitutional Amendment To Section 1930 Trustee Fee Statute, Joseph Parone

Bankruptcy Research Library

(Excerpt)

The United States Trustee Program comprises eighty-eight of the ninety-four Federal judicial districts. The U.S. Trustee Program is funded through the United States Trustee System Fund, a large portion from debtor trustee fees. U.S. Trustee districts are required to implement the trustee fee structure outlined by the Section 1930 fee statute, which is updated through congressional amendment. However, the Judicial Conference, which oversees the Bankruptcy Administrator Program, had discretion to impose trustee fees outlined in section 1930 on debtors within the remaining six Federal judicial districts under their administration.

In the backdrop of this legislative scheme is the Uniformity …

U.S. Court’S Role In Approving The Sale Of U.S. Assets In A Chapter 15 Case, Jamie Vang

Bankruptcy Research Library

(Excerpt)

Chapter 15 cases deal with cross-border insolvency and allow U.S. courts to recognize foreign bankruptcy proceedings and cooperate with foreign courts. Upon recognition of a foreign main proceeding, section 363 of title 11 of the United States Code (the "Bankruptcy Code") will apply to the transfer of U.S. assets. However, the standard for approving a sale under section 363 in a chapter 15 case is not specified.

This article analyzes the bankruptcy court decisions on whether chapter 15 requires U.S. courts to conduct their own individual analysis or to defer to the foreign court in approving the sale of …

The Objective Establishment Of A Ponzi Scheme Is Sufficient To Establish A Debtor’S "Actual Intent To Defraud" Creditors In Fraudulent Conveyance Actions, Sarah Wilkinson

Bankruptcy Research Library

(Excerpt)

A business entity that meets the objective elements of a Ponzi scheme gives rise to the presumption that a debtor possesses the requisite mens rea—the "actual intent to defraud" creditors—in fraudulent conveyance actions. Section 548 of title 11 of the United States Code (the "Bankruptcy Code") "authorizes a trustee to avoid any transfer of funds made by a debtor with (a) an 'actual intent to hinder, delay, or defraud' creditors; or (b) for less than a 'reasonably equivalent value,' among other criteria." Fraudulent conveyance actions are "often called 'clawback' actions." These actions "seek to recover the false returns received …

Adjudicatory Comity As An Alternative To Recognition Under Chapter 15 Of The Bankruptcy Code For Foreign Bankruptcy Proceedings, Janet Wong

Bankruptcy Research Library

(Excerpt)

In the absence of Chapter 15 recognition, foreign debtors may still rely on the doctrine of adjudicatory comity for recognition of a foreign order in some instances. However, because of the limitations on the applicability of adjudicatory comity alone, Chapter 15 recognition may be a safer option for foreign debtors.

In 2005, Congress enacted Chapter 15 under Title 11 of the United States Code (the "Bankruptcy Code") to "provide effective mechanisms for dealing with cases of cross-border insolvency." Under Chapter 15, a foreign representative may apply to the court for recognition of a foreign bankruptcy proceeding. Upon recognition of …

Dred Scott, Military Enslavement, And The Case For Reparations, Hugh Barrett Mcclean

All Faculty Scholarship

For more than a decade, Dred Scott was enslaved by a U.S. Army officer in a military system that perpetuated the institution of slavery in the free states and Northern territories of the antebellum period. Scott’s life, his lawsuit for freedom, and the U.S. Supreme Court case holding that Black people have “no rights which the white man was bound to respect” became infamous. But the history of the Dred Scott case and the military’s use of enslaved persons is largely unknown. Drawing on reparations advocacy in the Rosewood and Tulsa race massacre cases and other historical precedent for reparations, …

Active Learning Seminar Assignment: Broken Windows Perusall Activity, Penny Geyer

Open Educational Resources

This collaborative reading assignment created by Professor Penny Geyer was created as part of a seminar on Active Learning using OERs in 2025. The assignment uses the social annotation tool, Perusall, to transform a traditional reading assignment into an active learning exercise that encourages close reading, peer engagement and structured discussion of the foundational text, "Broken Windows" by James Wilson and George Kelling.

Using Public Nuisance Litigation To Address Industrywide Misconduct: Common-Law Statutes, Nondelegation, And Regulation, Hillel Y. Levin, Timothy D. Lytton

Scholarly Works

In this Article, we assert that broad, open-ended public nuisance statutes offer a legitimate legal tool to curb public health harms caused by the unreasonable design, marketing, and distribution practices of product manufacturers. We argue that these statutes are "common-law statutes" by which legislatures authorize courts to apply the concept of public nuisance to new situations using common-law-style reasoning. We demonstrate that this understanding of public nuisance statutes is consistent with well-established interpretive traditions regarding the codification of common law. Statutory delegation of broad interpretive discretion to courts concerning the application of public nuisance law constitutes a legislative choice to …

Charting New Frontiers: A Legal Literature Review Of Social Entrepreneurship And Impact Investing 2018–2023, Anne M. Tucker, Deborah Burand

Scholarly Works

This Article surveys 177 articles published in U.S. law reviews and journals between 2018–2023 that contribute to the fields of social enterprise, social finance and impact investing. The Article extends our earlier legal literature review of the same fields from 2007-2017.Our collective 17-year review of this span of legal literature documents the legal issues examined by scholars with respect to the development of sophisticated alternative business forms, like the Delaware Public Benefit Corporation; the growth in impact investing; the enduring academic interest in corporate purpose; and the effects that developments related to ESG and corporate sustainability are having on the …

Artificial Intelligence And The Hipaa Privacy Rule: A Primer, Stacey A. Tovino

Faculty Articles

No abstract provided.

In Defense Of Pardons, Stephen E. Henderson

Faculty Articles

Pardons by the past two U.S. presidents—one Democratic and one Republican—have caused some to question the wisdom of executive clemency. American criminal justice is imperfect, such critics of course recognize, but here the cure might be worse than the disease. If pardons have become the playthings of would-be monarchs and tyrants, perhaps it is time to let them go. As a strong proponent of role-reversible criminal justice, I am sympathetic to this view—even in mercy, why is the decision of the single elite supplanting the will of the people? Still, I write in pardons’ defense. Not only are pardons an …

Space Resource Development And Property - Clarifying Usufruct, Jeremy A. Kent

Journal of Air Law and Commerce

This article examines competing legal frameworks for governing property rights in outer-space resources through a comparative analysis of two distinct approaches: the rule of capture and the concept of usufruct. The increasing interest in commercial space activities, such as mining the Moon and asteroids, has raised questions about the legal frameworks governing property rights in space resources. The growing challenge is that while the Outer Space Treaty (OST) serves as the foundation for space law, it does not explicitly address property rights in the resources humankind increasingly can extract from the space domain.

The rule of capture is a legal …

Dangers From Regulatory Vacuums In Outer, Inner, And Near Space, Rob Frieden

Journal of Air Law and Commerce

Space, “the final frontier,” has become an attractive but increasingly risky market for both public and private investments. Gold rush enthusiasm anticipates solutions to the digital divide via small low earth orbiting satellites, extraction of valuable minerals from asteroids, a vibrant space launch and tourism industry, and expanding earth observation opportunities. Such entrepreneurial boldness juxtaposes with a severe lag in government oversight, consumer safeguards, and essential operational guardrails. The ambitious plans of Elon Musk and other space entrepreneurs could fail—despite recent market success—as SpaceX’s plans for 148 rocket launches in 2024.

Without substantial refinement of global space treaties and effective …

Flight Path To Accountability: A Legal Comparison Of Boeing’S Shortcomings, Airbus’S Successes, And International Aviation Safety Regulations, Riley M. Wagstaff

Journal of Air Law and Commerce

Investigations following two separate and deadly crashes of Boeing 737 8 Max aircraft revealed that America’s most trusted manufacturer had failed to notify pilots and airliners alike of a new Maneuvering Characteristics Augmentation System, commonly known as MCAS. What had first seemed like an accident unfortunately had a deeper and traceable history. Through relatively new United States legislation, Boeing was essentially permitted to oversee their own operations and grant airworthiness certifications for their own aircrafts. This practice is wholly unlike the detailed certification process of the European manufacturing giant, AirBus, by the European Aviation Safety Administration (EASA). This comment sheds …

High Crimes In Low Airspace: The Rise Of Drones In Cross-Border Drug Trafficking, Hannah Haight

Journal of Air Law and Commerce

Can the United States effectively regulate its airspace when criminal actors exploit it without entering traditional territorial channels? Mexican drug trafficking organizations increasingly deploy drones to deliver narcotics across the U.S.–Mexico border. These flights often occur at low altitudes, at night, and in remote areas, which renders them nearly undetectable by conventional enforcement methods. Yet, no statute squarely addresses the use of drones in cross-border drug trafficking. The Federal Aviation Administration (FAA) regulates drones under the FAA Modernization and Reform Act of 2012, but its mandate is safety, not interdiction. The result? A growing technological asymmetry: criminal cartels innovate, while …

Breaking The Boomerang: Judicial Oversight And The Fourth Amendment When The War Comes Home, Benjamin K. Eldredge

Case Western Reserve Law Review

No abstract provided.

“With Love, From Me To You:” Replacing The Unconstitutional All-Comer Provision With Favorable Conflict Of Laws Principles To Still Confer The Postmortem Right Of Publicity, Jackson Polish

Case Western Reserve Law Review

No abstract provided.