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When Beneficiaries Predecease: An Empirical Analysis
Get PDFUnder current law, bequests to beneficiaries who predecease the testator “lapse” to the beneficiary of the residuary, unless they are preserved for the descendants of predeceased beneficiaries under an “antilapse” statute. The beneficiaries covered by antilapse statutes vary from state to state, but in most states today the statutes apply only to blood relatives of the testator as distant as first cousins. This Article examines the public policy of antilapse statutes, assessing them by undertaking the first-ever survey of popular preferences concerning the matter. Harvesting evidence for five types of beneficiaries, the study finds that the prevailing structure of antilapse statutes is both over- and under-inclusive. On one hand, among beneficiaries who comprise blood relatives, most respondents prefer to create substitute bequests only for descendants of predeceased children. Lawmakers should strike other relatives from the statutes’ coverage. On the other hand, most respondents would create substitute bequests for their descendants if their spouse predeceased them. Lawmakers should extend the range of the statutes accordingly. Finally, this Article advocates enhancing courts’ power to deviate from mechanical rules of lapse in situations where testamentary intent is less predictable
Soft Law in Space: A Legal Framework for Extraterrestrial Mining
Get PDFAs technology is rapidly expanding in the field of space exploration and the prospect of mining on the moon, asteroids, and other celestial bodies looms nearer, the problems caused by the absence of a legal framework to govern this type of activity in space are becoming more and more evident. The question remains open as to whether space resource extraction is permitted under existing international law, and it is unclear whether governments or private enterprises may assert property rights over such resources. While spacefaring nations appear to be reaching a common understanding that space resource extraction and utilization does not conflict with existing international space laws, such as the Outer Space Treaty, there is no law explicitly addressing this issue. The increasingly urgent need for a set of rules detailing the procedures and safeguards for space resource activities and addressing issues such as property rights is clear, but the proper forum and format for negotiating these rules is up for debate.
This Comment demonstrates the need for efficient and inclusive negotiations on the legal issues surrounding space resource extraction through a proper international forum. It details several major existing domestic and international terrestrial mining laws, as well as the current legal framework governing space. It then analyzes the various approaches to developing a law on space resources that have been proposed by various nations and scholars, arguing that the United States should lead negotiations to develop a set of soft law principles for space resource extraction through an international forum such as the U.N. Committee on the Peaceful Uses of Outer Space. Next, this Comment suggests several principles pulled from existing terrestrial mining laws, such as the 1872 Mining Law and the Antarctic Treaty System, that may be applicable to space resource activities. Finally, this Comment contemplates the various environmental concerns that may be raised when space resource extraction comes to fruition
Patching the Holes in SOX: FCPA Disgorgement after Liu and the NDAA
Get PDFThe Foreign Corrupt Practices Act (FCPA) forbids companies and persons from bribing foreign officials to secure business and creates an affirmative duty for companies to maintain valid accounting records. Since 2004, following the passage of the Sarbanes-Oxley Act (SOX), the Securities and Exchange Commission (SEC) has pursued “equitable remedies” under 15 U.S.C. § 78u(d) to disgorge profits from those who have violated the FCPA. Despite apparent legislative acceptance of disgorgement, the Supreme Court put disgorgement’s legality into doubt in two recent decisions. The first, Kokesh v. SEC in 2017, established that disgorgement had to happen within a five-year statute of limitations period. The second, Liu v. SEC in 2020, held that disgorgement might not be allowed as an equitable remedy if, as in FCPA cases, the money disgorged was sent to the Treasury rather than wronged investors.
At the close of 2020, Congress responded to these decisions. To preserve the powers of the SEC to protect U.S. financial markets, Congress passed legislation that expressly granted the SEC disgorgement powers and raised the statute of limitations to ten years for select securities law violations. Despite this new legislation, questions still exist as to whether the SEC must abide by the limitations on its disgorgement powers set out by the Liu decision and which statute of limitations applies to FCPA disgorgement. This Comment argues that disgorgement under the newly revised Section 78u(d) should be allowed for FCPA actions that send money to the Treasury, regardless of whether the limitations imposed by the Liu decision still apply. Further, this Comment asserts that, in light of the uncertainty likely to arise from the new changes to Section 78u(d), Congress should revise the statute to expressly allow the SEC to disgorge profits to the Treasury in FCPA actions with a ten-year statute of limitations. Finally, this Comment argues that the best solution for concerns about the slow pace of SEC enforcement would be new legislation that allows for SEC self-funding derived from FCPA disgorgement remedies
Putting With a Pitching Wedge: Indiscriminating Termination of the Automatic Stay
Get PDFThe serial filing of chapter 13 cases solely for the purpose of frustrating and delaying foreclosure or other legitimate collection efforts, and with no serious intent to reorganize, has long been perceived as an abuse of the bankruptcy system requiring a fulsome response. In 2005 Congress seized on a solution involving withdrawal or withholding of the automatic stay. Since it is the existence of the stay that most prompts abusive filings, the solution seemed appropriate. It was not for a variety of reasons examined in this article, but most notably because not all serial filings are abusive, and the stay serves to implement multiple bankruptcy policies, implicating the interests of participants in the system other than the debtor. Thus, this article contends that the new paragraphs added to section 362(c) in 2005 are overly broad, out of kilter with the structure of other stay termination provisions, and as likely as not to produce more mischief than they prevent. Moreover, the article asserts that there currently are better, more narrowly tailored, tools available to the courts to address bad faith serial filings that neither run the risk of depriving deserving debtors of bankruptcy relief and that do not prejudice the interests of other creditors in the case. Building on these tools, this article constructs an alternative approach to stay modification in the case of repeat filings that distinguishes the differing considerations at work in rehabilitation versus liquidation cases, and that contemplates a more meaningful role for bankruptcy courts to exercise experienced judgment in balancing the equities in individual cases in a fashion that a mechanical, self-executing statutory approach can never replicate
The New Slot Machine: An International Perspective on Why the United States Should Learn to Stop Loving the Loot Box
Get PDFGames of chance are woven into the fabric of human culture. Rapid shifts in technology have resulted in the creation of the loot box, a new video game monetization scheme formed from the dregs of slot machines and trading cards. While extremely lucrative, the existence of loot boxes allows game companies to expose children to wager-like behavior, potentially creating a new generation of problem gamblers. The United States is both financially and culturally tied to video games as an industry and has been slow in its regulation of loot boxes. Given the problematic nature of loot boxes, existing regulations in the United States are not enough to curb their negative impact. Similarly, South Korea has deep ties to gaming and has taken a more hands-off approach in its supervision over loot boxes. This Comment argues that South Korea’s approach is ineffective, and the United States would be better served by following the example of countries like Belgium. Loot boxes in video games are an egregious abuse of children’s susceptibility to predatory marketing schemes and should be banned
Tech Accountability in Face of Genocide: Gambia v. Facebook
Get PDFThe exigent nature of genocide, inherent costs of litigation that may impede ongoing investigations, and general reluctance of tech companies toward international data disclosure underscore the need for states and intergovernmental organizations to enforce more expedient discovery procedures for cases involving crimes against humanity. The discovery case between the Gambia and Facebook illustrates how the current legal framework regulating international data disclosures is ill-equipped to nimbly address the exigence of genocide in Myanmar.
Existing bilateral agreements and multilateral treaties overseeing international data disclosure should be amended to compel third-party internet service providers to disclose information in the extreme and exigent case of genocide. Without further changes, efforts to compel third parties will continue to fail. Investigating bodies will continue to depend on narrow exceptions when disclosure aligns with the business interests of internet service providers.
Cases investigating genocide will persist in purgatory. Lives will remain hanging in the balance.
This Comment will focus on the discovery case between the Gambia and Facebook and its collateral effects on the ongoing investigation into the Rohingya genocide in Myanmar. In doing so, this Comment will analyze how American tech giants like Facebook conduct extensive business outside the United States and circumvent foreign regulation and government intervention to the detriment of local communities
