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Chapter 9 Bankruptcy: The Solution that Causes Problems
Full text linkThere is a little-known form of bankruptcy called a “Chapter 9,” reserved for insolvent cities, villages, and other municipalities. Occasionally, one reads about a city or a county that has filed for Chapter 9 relief, like Detroit, Michigan, or Orange County, California; however, it is very hard to file a Chapter 9 case, in part, because existing law requires a municipality to obtain permission from its home state before it can file for relief in the U.S. Bankruptcy Court. An additional constraint is that the only option municipalities have when seeking bankruptcy relief is to file a Chapter 9 because no other forms of bankruptcy relief are available to them. Because of these two realities and a few other obstacles that will be discussed in this Article, very few Chapter 9s are filed, even though many municipalities are struggling in the current economic climate and even though many municipalities could benefit from bankruptcy relief. This Article explores why it is so difficult to file a Chapter 9 bankruptcy, including the constitutional and structural impediments that prevent more municipalities from filing, and suggests that the current construction of Chapter 9 may violate the U.S. Constitution. Finally, the piece proposes a modification of current law and the possible repeal of Chapter 9 to make bankruptcy a reality for municipalities in need of financial relief
Aerial Highways: The Fifth Amendment Implications of Commercial Drone Delivery Services
Full text linkCommercial drone delivery systems that deliver packages of purchased products directly to the homes of consumers are being developed and tested by many companies in America, including Walmart and Amazon. Soon enough, our skies will be filled with low-flying drones. This Article joins the growing cohort of legal scholars discussing drones, but focuses on an issue not addressed to this point - how commercial drone delivery systems can undermine and diminish the property rights of private landowners. In the past, most legal scholars have addressed the interplay between drones and private property by examining potential tort liability for drone operators under theories such as trespass, nuisance, and intrusion upon seclusion. This approach, however, has proven insufficient to address the unique challenges created by commercial drone delivery systems. Moreover, proposed federal laws and regulations in this area threaten to further limit the rights of private landowners to the airspace above their property. Through a thorough constitutional analysis, this Article argues that proposed government regulations in this area would extinguish rights to the airspace above private property to such a degree that they constitute a governmental taking of private property under the Fifth Amendment to the United States Constitution, requiring just compensation for the taking of those valuable air rights
Visa to Stay: Immigration Reform for International Students in the United States: From Contractual Limits to Affiliation-Based Opportunities
Full text linkInternational student mobility is a vehicle of globalization in today’s world, with a significant rise in students pursuing higher education abroad over the past two decades, reaching approximately 6.9 million globally. Regardless of personal motivations, the decision to study abroad rests in a careful evaluation of whether long-term rewards outweigh the short-term sacrifices these students make. For students looking to build a professional foundation and immerse themselves in the culture of the country in which they study, few long-term rewards are more appealing than having their student visas serve as a pathway to permanent residency. Determining who may be granted permanent residence in a country is central to immigration law and an issue that continues to fuel extensive scholarly debate and theorization. Professor Hiroshi Motomura offers two lenses through which immigration law can be viewed: immigration as contract and immigration as affiliation. Immigration as contract conceptualizes the relationship between noncitizens and host countries based on mutual expectations and obligations. Conversely, immigration as affiliation acknowledges and values the evolving ties that noncitizens forge with their host communities, emphasizing integration and gradual detachment from their country of origin. The US, Canada, and the UK are among the top destinations for international students, and each country’s immigration framework aims to both promote diversity and strengthen the labor market. These goals often conflict due to concerns about immigrants displacing native workers. Consequently, due to this apprehension, the legislative framework surrounding the student visa in each country attempts to strike a balance in varying degrees. This Note examines the US’s approach to student visas, highlighting its reliance on the immigration as contract framework and contrasting it with the immigration as affiliation approach used by Canada and the UK. By adopting a strict contractual framework and restricting opportunities for students to obtain permanent resident status, the US fails to effectively balance promoting diversity with protecting its labor market
Performative Actions and Profits: A New Test for Delaware Derivative Oversight Claims
Full text linkOne of the most important aspects of Delaware corporate law is the duty of oversight, which requires corporate directors and officers to establish and maintain reasonable oversight systems at their companies. In determining whether a director or officer has breached their duty of oversight, courts apply the bad-faith standard. This Note contends that the bad-faith standard is an ineffective way to hold corporate directors and officers accountable for their lack of oversight because under the bad-faith standard, courts are unable to distinguish nonmeaningful performative action that is merely intended to create the illusion of good-faith oversight from true good-faith action. Consequently, this Note argues that the bad-faith standard should be replaced with a gross-negligence test for oversight claims stemming from regulatory violations. Alternatively, this Note posits that oversight claims stemming from regulatory violations should be replaced with duty of loyalty claims. By adopting either approach, courts will finally be able to hold corporate directors and officers accountable for their lack of oversight while simultaneously protecting shareholder investments and maintaining public trust in the judiciary
Conduits for Crime: How the US Art Industry Has Become a Market Ripe for Financial Crime
Full text linkThe US art market is the largest in the world, with an estimated total worth of 450 million, making it the most expensive individual work to ever be sold. However, unlike other markets that handle similarly high-value assets and commodities, the US art market is largely unregulated. The lack of adequate formal regulation, coupled with a culture of anonymity, has allowed for the US art market to become a hotbed for financial crime, such as money laundering and tax evasion. Legislative attempts to address the pervasiveness of financial crime in the US art market have either failed, excluded entire sections of the market, or offered piecemeal recommendations that carry no regulatory authority to enact change. To effectively combat financial crime in the US art market, a comprehensive, multipronged approach is necessary. First, all high-value art market participants should be recognized as financial institutions and subject to financial transparency regulations. Second, newly implemented regulations should synchronize with international regulatory standards to deter money laundering on domestic and international fronts. Lastly, an international database for art market participants should be established to standardize anti-money laundering practices and flag suspicious financial activity abroad. Together, these measures would shield the US art market from financial crime and protect art’s cultural integrity and value
LULUCF Is More Than a Mouthful: How the United States could implement the European Union’s land use, land-use change, and forestry policy to help fight against the US agricultural lobby and fight climate change
Full text linkClimate change is this generation’s defining issue, and one that has passed the point of requiring critical attention and response. Agriculture is a major contributor to anthropogenic global warming, but it has largely evaded environmental regulation in the United States (US) due to “agricultural exceptionalism” and a powerful agricultural lobby. Activities in the land use, land-use change, and forestry (“LULUCF”) sector can effectively offset carbon dioxide equivalent emissions from agricultural activities through a process known as a “carbon sink.” In the European Union (EU), the agricultural sector is already regulated through Regulation (EU) 2023/839, the first LULUCF regulation of its kind. Although the US rejoined the Paris Climate Agreement in 2021 and committed to achieving net-zero emissions by 2050, its current plan regarding LULUCF is insufficient to meet its proposed goals. This Note argues that despite strong political obstacles, the US must implement LULUCF regulation similar to the EU’s 2023/839 to achieve its emission reduction goals. This Note explores the current ecological disaster created by the US agricultural system, the political obstacles related to regulating agriculture in the US, and the US federal government’s failed attempts to regulate emissions from agriculture following the pivotal Supreme Court case Massachusetts v. EPA. Finally, this Note posits that the US must adopt legislation similar to the EU’s through either state-by-state adoption or comprehensive federal legislation to combat climate change and bring the largely unregulated agricultural sector in check
Implicit Bias within the Primary Assumption of Risk Doctrine
Full text linkThis Article addresses the efficacy of the primary assumption of risk doctrine, and the improper extension of the doctrine to vitiate a plaintiff’s ability to obtain recourse in personal injury cases. When the New York legislature enacted the comparative negligence standard in 1975, it essentially revoked the applicability of the primary assumption of risk doctrine as a defense in tort litigation. However, the courts continued to apply the primary assumption of risk doctrine in tort cases involving sports or physical activity, analyzing it as an element of a defendant’s duty and serving as a complete bar to recovery for plaintiffs in violation of the legislative intent of CPLR section 1411. Furthermore, the extension of the doctrine to include spectators, bystanders, and its application in premises liability cases has created two classes of citizens in negligence cases, based upon implicit bias in distinguishing between injured plaintiffs. This Article demonstrates how the continued application of the primary assumption of risk doctrine is untenable, and analyzing the inherent nature of a sport and its participants is a factual determination, not legal, in which implicit bias impacts court rulings. Further, this Article argues for the elimination or restriction of the primary assumption of risk doctrine in the analysis of a defendant’s duty. In doing so, the courts would better reflect the legislative intent of the comparative negligence statute as well as our modern society, its growing social dynamics and diversity of all members of the community and revive consistency in treatment of plaintiffs in negligence cases
Do Bankruptcy Judges Belong in Chambers? Rethinking Inherent Civil Contempt Power in Bankruptcy
Full text linkIn recent years, the Supreme Court of the United States has recognized limitations on the adjudicatory authority of the bankruptcy judge in certain contexts. In the face of this seeming erosion in the previously presumed power of the bankruptcy judge, the time is ripe to consider areas in which a bankruptcy judge’s adjudicatory authority may be further challenged. Inherent civil contempt power is one such area. Contempt power in the bankruptcy context has been murky since the creation of the non-Article III bankruptcy court in 1978. While today, courts generally agree that bankruptcy judges possess (at least some) inherent civil contempt power, this conclusion often rests on the extension of Article III case law on inherent contempt power—most notably, Chambers v. NASCO. However, a close examination of Chambers calls into question the soundness of this extension. This Article contributes scholarship on the history of how federal statutes and rules have treated contempt in the bankruptcy context—a strange story marked by the creation of non-statutory “judges,” the questionable vesting of adjudicatory authority in non-judges, the application of Article III case law to a non-Article III court, and the promulgation of federal rules that brought confusion and inconsistency—the ghosts of which still haunt bankruptcy law. It then examines the current state of the law on inherent civil contempt in bankruptcy, including the application of Chambers, and ultimately calls for the abandonment of the Chambers-based approach. It argues instead for an approach based on a theory of implicit delegation of the inherent contempt power of the district court to its bankruptcy judges. The implicit delegation-based approach is consonant with the jurisdictional and referral statutes that govern the district court’s relationship with its bankruptcy judges, does not offend constitutional concerns, and puts to rest much of the search for the “limits” of a bankruptcy judge’s inherent civil contempt power
