SelectedWorks @ Widener University Commonwealth Law School
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Has Congress Stopped Executives from Raiding the Bank? A Critical Analysis of I.R.C. §409A
No full textIn October 2004 Congress passed the American Jobs Creation Act ( AJCA ). Among other things, the AJCA created Internal Revenue Code §409A to address perceived abuses of nonqualified deferred compensation. Section 409A contains detailed and restrictive provisions relating to nonqualified deferred compensation including rules on when distributions may be made, when the arrangement may be renegotiated, and new penalties applicable if a plan fails to qualify under §409A. This paper focuses on how §409A began largely as a reaction to the sizeable distributions to Enron executives from their nonqualified deferred compensation accounts shortly before Enron\u27s collapse. The paper discusses how §409A represents a major shift in nonqualified deferred compensation planning but does little to remedy the exact problem at Enron that gave rise to §409A
Survey of the Law of Cyberspace: Internet Contracting Cases 2004-2005
No full textThis article reviews recent developments in the United States and the European Union involving Internet transactions. It describes those developments and analyzes both from a normative and practical perspective
Can There Be a Unified Theory of Torts? A Pluralist Suggestion from History and Doctrine
No full textIn this article, I discuss the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes\u27 focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. In particular, modern scholars tend to view torts either as a means of deterring injuries or of achieving corrective justice. I argue that both history and doctrine suggest that the attempt to unify all of torts is futile. From a historical perspective, what we now label tort law was created on an ad hoc basis as problems developed in communities in medieval England. The law was developed practically to resolve those problems, not to embody any vision of justice. Furthermore, tort law was the common law\u27s residual area of civil liability, and was not conceived to be a coherent subject matter. Perhaps as a result, concepts from other areas of law have significantly influenced tort doctrines. These imported concepts are based on goals foreign to, and not necessarily consistent with, tort goals. Tort law\u27s doctrine also appears hostile to unification. In assessing whether doctrine might support a unified theory of torts, I compare two doctrinal areas for consistency. If a unified theory of torts cannot encompass two discrete doctrines of torts, of course it cannot encompass all of torts. A cursory examination of automobile accidents and medical malpractice reveals significant differences of reciprocity of risk, causation and the incursion of doctrines foreign to tort law. Based on the comparison, it appears that each of the three traditional tort goals - deterrence, corrective justice and compensation - may be problematic in one doctrine or the other. I thus conclude that a unified theory of torts is not plausible. Based on this conclusion, I argue that scholars should devote their energies to examining the pluralist nature of tort law. In particular, I urge scholars to focus on the contexts of torts. By focusing on the contexts, instead of ignoring them for the sake of cohesion, scholars may be able to determine under what circumstances a particular torts goal should be emphasized
Lessons to be Learned, Lessons to Live Out: Catholicism at the Crossroads of Judaism and American Legalism
No full textJustice and the Administrative State: The FDIC and the Superior Bank Failure
No full textThis essay demonstrates through the Superior Bank failure how an administrative agency, the FDIC, can act without taking into account what is fair and just for all involved parties, instead maximizing its power or its economic recovery. The author argues that the FDIC lost sight of how it should have responded and not how it could have by giving preferential treatment to Superior\u27s shareholders and attempting to sue the auditor Ernst & Young in contravention of Superior\u27s contractual obligations. The FDIC\u27s actions sublimated the fairness of the insolvency resolution process for the creditors of Superior and exposed Ernst & Young to liabilities well beyond what it had contracted for with Superior