Bankruptcy Law Commons^™

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Creditor Considerations In Crypto Cases, Alan Rosenberg, Ross Hartog

Emory Bankruptcy Developments Journal

No abstract provided.

Opening Remarks, Keith J. Shapiro

Emory Bankruptcy Developments Journal

No abstract provided.

Non-Uniformity Is The New Uniformity: Inconsistent Quarterly Fees And Why The Bankruptcy Administrator System Must Go, Cody Turner

Emory Bankruptcy Developments Journal

The Bankruptcy Clause’s call for uniformity is one of the more mysterious and unstudied constitutional constraints on bankruptcy, yet it is an ever-present policy consideration. It is a flexible guidepost that functions as a minor constraint on bankruptcy law. However, courts have recently allowed this guidepost to bend too much. When the courts upheld a split bankruptcy administration system as constitutionally uniform, it set the stage for needless, avoidable litigation. The most recent examples of such needless litigation are the Supreme Court cases of Siegel v. Fitzgerald and Office of the United States Trustee v. John Q. Hammons Fall …

Third-Party Bankruptcy Releases And The Separation Of Powers: A Stern Look, Henry Reynolds

Emory Bankruptcy Developments Journal

In the last few years, bankruptcy scholars and professionals have criticized mass tort debtors’ use of chapter 11 bankruptcy as a litigation forum. One such criticism concerns mass tort debtors’ use of third-party releases: provisions in chapter 11 reorganization plans that enjoin creditors’ claims against non-debtor third parties. If a bankruptcy court approves such releases, creditors lose claims against the released third parties, which often include the debtor’s directors, insurers, or employees.

Third-party releases have troubled many. Critics and courts have said that third-party releases violate (1) the Bankruptcy Code, (2) bankruptcy policy, (3) the constitutional right to due process, …

Safe Harboring Sloppiness: The Scope Of, And Available Remedies Under, Sections 363(M) And 364(E), Vishal Patel

Emory Bankruptcy Developments Journal

No abstract provided.

The Small Business Killer: How Fincen Enforcement Of The Cta Could Destroy The Last Bastion Of The American Dream, Samantha M. Alecozay

Faculty Articles

The Corporate Transparency Act (CTA), passed into law in 2021 and made effective January 1, 2024, mandates the creation of a nationwide database that collects owner information of certain legal entities to help combat money laundering and other illicit financial activities. The CTA requires that the legal entity owners provide necessary information directly to the federal government, rather than relying on state and/or federal government officials to collect the information on their behalf. Further, failure to comply may result in the legal entity and owners incurring significant civil penalties of up to $591 per day of violation and even criminal …

Law In Books Versus Law In Action In The Landmark Shenzhen, China, Personal Bankruptcy Regime, Jason J. Kilborn

Emory Bankruptcy Developments Journal

The first personal bankruptcy regime in Mainland China celebrated its second anniversary on March 1, 2023. An empirical assessment of the law in action during these first two years reveals some troubling deviations from the early promises of the new law on the books. In the first year, a handful of judges were charged with an arduous in-person review process for over 1,000 applicants, and they accepted only twenty-five for case initiation. In the second year, initial case review was delegated to an administrative body—an important efficiency enhancement that tripled the number of opened cases. Nonetheless, most debtors continue to …

Introduction: A Tribute To The Honorable Thomas L. Ambro, Z Arima

Emory Bankruptcy Developments Journal

No abstract provided.

Acceptance Remarks For The 2024 Distinguished Service Award For Lifetime Achievement, Thomas L. Ambro

Emory Bankruptcy Developments Journal

No abstract provided.

Access To Justice: A Roadmap To Creating And Launching Consumer Bankruptcy Experiential Programs In Law Schools, Ishaq Kundawala

Emory Bankruptcy Developments Journal

No abstract provided.

Just Consumer Financial Protection: Prevention Or Cure, Andrea J. Boyack

Emory Bankruptcy Developments Journal

No abstract provided.

Regulating Cryptocurrency: A Comparative Analysis Of U.S. And Eu Approaches, Xander Xueyang Peng

Cardozo International & Comparative Law Review

The note compares the regulatory approaches of the U.S. and the EU regarding cryptocurrency, focusing on sanctions and anti-money laundering (AML). It argues that while the EU has implemented a comprehensive regulatory framework, the U.S. relies on fragmented enforcement actions and lacks a unified approach. The EU's structured regulations, such as the Markets in Crypto-Assets (MiCA) framework, are more effective in addressing the challenges posed by cryptocurrency, including traceability and compliance. The note advocates for the U.S. to adopt a more robust regulatory framework, including know-your-customer (KYC) requirements and stricter AML measures, to enhance accountability and security in the crypto …

Stronger - Not Together: The Needed Elimination Of Mandatory Arbitration For Sexual Misconduct Claims Against The United States Olympic & Paralympic Committee & International Olympic Committee, Peri L. Ayzidor

Cardozo Journal of Conflict Resolution

Mandatory arbitration clauses have acted as litigation blocks in employment and commercial contracts for decades. The downfall of such clauses was catalyzed by the infamous trial of Olympic doctor, Larry Nassar. The grueling evidence and testimony sparked the creation of acts such as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act ("EFSASHA"), which barred the enforcement of mandatory arbitration clauses in claims involving sexual misconduct. Mandatory/forced arbitration clauses keep any claims made by employees or individuals private and limits their right to take a claim to court. Such clauses make it almost impossible for sexual misconduct survivors …

Service Of Process Via Nft Airdrops: The Pathway To Private Litigation For Injured Web3 Plaintiffs, Sophia Dudgeon

Cardozo Arts & Entertainment Law Journal

The note explores the evolving landscape of legal process in the digital age, focusing on the use of blockchain technology and NFTs for serving legal notices. It argues that courts are increasingly adapting traditional due process principles, such as those established in Mullane v. Alabama, to accommodate emerging technologies. The analysis highlights the landmark case LCX AG v. 1.274M U.S. Dollar Coin, where a court approved serving process via NFT airdrop, demonstrating how technological innovations can enhance access to justice in digital asset disputes. The author advocates for courts to embrace expansive interpretations of alternative service methods to …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …