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101 Lawyers: Attorney Appearances in \u3cem\u3eTwitter v. Musk\u3c/em\u3e
Get PDFIn summer 2022, Twitter sued Elon Musk, the world’s richest person, in Delaware’s Court of Chancery over his refusal to close his agreed-to $44 billion acquisition of the social-media company. Twitter v. Musk had the makings of corporate law’s trial of the century. Leading law firms represented Twitter, Musk, and third parties in a dispute with enormous financial, social, and political implications. In the lead up to trial, however, Musk relented and closed the deal. The corporate trial of the century was a bust, over almost as soon as it began.
But in the meantime, in Twitter’s eighty-six days of active litigation, an incredible 101 lawyers appeared in the case, as more worked on behalf of the parties without appearing. Thus, even without developing Delaware contract or M&A doctrine, Twitter was nevertheless a landmark case for the salient views it offered into corporate litigation and the legal profession. This Essay opens those views up with a handcollected dataset of Twitter’s attorney appearances as a case study of legal staffing in high-stakes litigation and the role of state attorney regulation in multi-firm, multi-jurisdictional practice
“Engaged In”: The Rocky Marriage Between Commercial and Business Activity and Subchapter V Eligibility
Get PDFThe Small Business Reorganization Act of 2019, which created subchapter V bankruptcy relief for eligible small business debtors, is a step towards a small-business-friendly bankruptcy environment. The legislative history of subchapter V stated the goal of this new statute was to provide a cost-effective and streamlined path to reorganization to allow financially distressed small businesses to remain in business. To be eligible for subchapter V relief, a debtor must, among other requirements, be “engaged in commercial or business activities.” However, courts have continuously disagreed on the meaning of “engaged in commercial or business activities.” Courts have taken different stances on whether the debtor must be presently engaged in commercial or business activities, and what conduct satisfies the “activities” prong.
This Comment proposes a revision to subchapter V’s eligibility requirements to alleviate the confusion caused by inconsistent judicial interpretation, correct legislative drafting mistakes, and harmonize legislative intent and application, and proposes that the phrase “engaged in commercial or business activities” should be replaced with “presently engaged in the operation of, as of the petition date, a trade or business.” The term “trade or business” is a term of art commonly used in the Tax Code. The test set out by the Supreme Court in Commissioner v. Groetzinger should be used to determine if unregistered business forms, like sole proprietorships, are engaged in a trade or business. However, registered business forms are inherently a trade or business. These changes will remedy existing confusion by implementing a clear framework that accurately reflects legislative intent
First Amendment Protections for Good Trouble
Get PDFIn the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country. This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation’s racist practices. Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today’s civil rights activists who seek to protest police brutality, other forms of oppression, and disregard of Black lives, and who seek to educate the public about our nation’s legacy and practice of systemic racism. Today’s civil rights activists have been met not just with counterspeech but with efforts to silence them—for example, by the anti-protest statutes enacted in many states, by efforts to financially cripple protest movements through the novel theory of “negligent protest” liability, and by so-called anti-Critical Race Theory laws that originated in a Trump-era Executive Order and that have now been enacted in many states, which muzzle the teaching of concepts of systemic racism in our public education systems—including at the college level.
Fortunately, the successes of the classical era of the Civil Rights Movement were not limited to addressing racial discrimination and segregation: they also brought about powerful changes in First Amendment doctrines and ushered in the development of powerful doctrinal tools that can now be wielded by modern-day civil rights activists to defeat these modern-day efforts to silence messages of antiracism. These doctrines include the prior restraint doctrine, the vagueness and overbreadth doctrines, the public forum doctrine, the expressive conduct doctrine, the right to associate (including anonymously and without incurring liability for protest-related harms), and the right to fairly criticize public officials (without fear of defamation liability). In the context of modern civil rights and social protest movements, such First Amendment doctrines can and should serve as powerful weapons to defeat present-day attempts to inhibit the ongoing quest for racial equality
Table Talk: Short Talks on the Weightier Matters of Law and Religion
Get PDF“Table talks” have long been a familiar genre of writing for jurists, theologians, politicians, and novelists. In this little volume, thirty sage reflections on how to thrive in law school and in the legal profession are offered: short commentaries on controversial matters of faith, freedom, and family; pithy sermons on difficult biblical texts about law and justice; and touching tributes to a few of his fallen heroes. Most of the thirty texts gathered here were made at seminar tables, academic roundtables, editorial tables, and Eucharist tables. Cast in avuncular form, these texts probe what makes life worth living, work worth doing, history worth reading, and Scripture worth heeding. They aim to provide inspiration and edification for readers at different stages of their lives.https://scholarlycommons.law.emory.edu/cslr-books/1135/thumbnail.jp
A New Normal: How COVID-19 and Digital Contact Tracing Highlight a Need for New Fourth Amendment Norms
Get PDFContact tracing helps epidemiologists identify individuals who have been exposed to a virus. Manual contact tracing has been used for decades to interrupt the transmission of disease and reduce the number of infections within a population. It is a pillar of disease control. But the manual process has certain limitations—it is time-intensive, expensive, and subject to human error. Digital contact tracing overcomes these limitations. Using GPS and Bluetooth technologies, digital contact tracing applications automate and expedite the tracing and notification processes, with life-saving implications. In 2020, countries that implemented contact tracing technology in response to COVID-19 contained outbreaks, minimized incidence of the virus, and kept death tolls comparatively low.
Notwithstanding the urgent public health need COVID-19 created, privacy-minded Americans were and continue to be resistant to digital contact tracing. Instead of widespread adoption of the technology, there is widespread concern that data collected via contact tracing apps will be co-opted, de-anonymized, and used by law enforcement for non-public health purposes.
Is this concern warranted? Can the government demand a record of your location data from Apple and Google without implicating your Fourth Amendment rights? Can it secure this data without a warrant or probable cause? The answer to all these questions is, most likely, yes. Although the Fourth Amendment limits the government’s search and seizure powers, Americans who opt to use contact tracing apps—for the sake of their health and the public health at large—position themselves outside the bounds of Fourth Amendment protections. In other words, Americans can choose health or privacy, but not both.
Surely, that should not be our norm. We need a new normal. This Comment, therefore, discusses how jurisprudence fails to protect the rights of U.S. citizens using contact tracing applications. It details the current Fourth Amendment tests and doctrines, including the Katz test (which centers around reasonable expectations of privacy) and the third-party doctrine (which says a person has no legitimate expectation of privacy in information supplied to third parties). Given the public health benefits of an effective contact tracing system, this Comment considers why changes to the Fourth Amendment framework—ones that accommodate the competing privacy and welfare needs of the twenty-first century—are warranted. Ultimately, this Comment proposes that the Supreme Court eliminate the Katz test and overturn the third-party doctrine to extend Fourth Amendment protections to information like location data captured by life-saving technologies
The Property Clause, Article IV, and Constitutional Structure
Get PDFFederal public lands account for approximately thirty percent of the United States and have been the grounds for fierce political and legal battles: whether to lease those lands for the extraction of fossil fuels, whether to protect landscapes and Native sacred sites as national monuments, whether federal law on the public lands preempts state law, and even whether federal ownership of lands within states is constitutional. Those battles turn on questions of executive versus congressional power to control the management of the public lands, and state versus federal authority on those lands. Answering those questions depends on a proper understanding of federal power under the Property Clause—Article IV, Section 3, Clause 2 of the U.S. Constitution—which empowers Congress to “dispose of and make all needful Rules and Regulations” for the property of the United States, including the public lands.
Scholars have debated the meaning of the Clause and how it might inform separation-of-powers and federalism questions. But until now, they have not considered in-depth the implications of the location of the Clause in Article IV of the Constitution. Article IV’s provisions address interstate relationships, generally mediated outside the federal government, as part of an effort to build those relationships and advance a stronger Union. The history of the drafting of the Property Clause shows that, while the Clause authorizes a powerful role for the federal government in managing the public lands, the Clause was intended to resolve interstate disputes among the original thirteen states as to western land claims and the creation of new western states.
This understanding of Article IV as a “horizontal federalism” Article focused on interstate relations leads to important conclusions as to how to properly understand the Property Clause. It supports emphasizing congressional primacy in implementing the Clause—although this congressional primacy is moderated by the recognition of a necessary executive power that has discretion to manage the public lands where Congress is silent. This understanding also supports a strong federal role vis-à-vis states in the management and retention of public lands within those states. The Article applies these principles to resolve key disputes over public lands management, such as executive power to revoke national monuments or terminate existing fossil fuel leases, and claims that federal power over public lands should be constrained or even eliminated. It also identifies how a “horizontal federalism” understanding of Article IV could resolve other important questions about how to interpret the Property Clause and other provisions of Article IV
One Size Does Not Fit All Leases—It\u27s Time to Amend Bankruptcy Code Section 365
Get PDFFor far too long, Bankruptcy Code Section 365 has caused confusion among parties to oil and gas leases when one party files for bankruptcy. This section of the Bankruptcy Code is intended to provide relief to debtors who are party to an unexpired lease or an executory contract, allowing a debtor-in-possession or trustee to make the decision to either assume or reject the agreement. While this concept is straightforward for standard lease agreements and contracts, courts have struggled to determine whether oil and gas leases actually fall into the category of a “lease” per se, an executory contract, or neither.
Many courts have held that oil and gas agreements are not actually leases, despite their title, because they convey an interest in real property that exceeds that of a leasehold interest. Some courts, however, have chosen to categorize such agreements as unexpired leases, or even executory contracts. This variation in court decisions is problematic because determining what category to place an oil and gas agreement is of paramount importance in determining whether the debtor has the right to reject the agreement in a bankruptcy proceeding. Additionally, such variation has had the effect of producing shocking results during bankruptcy proceedings, leaving parties to current oil and gas agreements unsure of their contractual and property rights in the event that a counterparty experiences financial distress.
To alleviate the uncertainty caused by the current caselaw, this Comment proposes an amendment to Bankruptcy Code Section 365 that provides a framework for consistency in evaluating oil and gas leases moving forward and protections for the property rights of the contracting parties
The Bipartisan Consensus on Big Tech
Get PDFThis Article contends that there is an emergent bipartisan consensus that Big Tech has grown too powerful and that action must be taken to address its abuse of power. That action takes the form of a variety of legislative proposals to enhance government enforcement powers, reform the merger laws, and address self-preferencing, data portability, and interoperability. Litigation efforts focus on Facebook and Google’s abuse of monopoly power, particularly with respect to Facebook’s elimination of competition through acquisitions and Google’s abuse of monopoly power in search and display advertising. While we are in the midst of one of the most divisive and polarizing periods in our nation’s history, there is a strong bipartisan consensus on the perils of Big Tech and a desperate need to do something about it
