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Introduction
Get PDFEach year the Emory Bankruptcy Developments Journal hosts a Symposium on important and prescient issues in bankruptcy law. This year, on February 20, 2020, the Journal hosted its Seventeenth Annual Symposium. The Symposium featured two panels, one consumer-focused and the other corporate-focused. The Symposium also included Articles written by Associate Dean Nathalie Martin and Professor Douglas Baird and the responses
Social Movements and Standing in the American Gun Debate
Get PDFWho gets to be heard is a fundamental question in any democracy, and access to the arenas of political debate is every bit as contested as the disputes about policy within. The legal system offers rules of “standing” to determine who can make claims in a courtroom. We think the concept of standing is useful in making sense of access to a range of other political arenas as well. Notably, having an identifiable interest in the outcome of a particular set of decisions, a stake in the outcome, doesn’t necessarily grant a claimant access to an audience. Social movements work to convert stake into standing, and to win access to social and political arenas for distinct constituencies and claimants. Their arguments for access often parallel the legal criteria for standing. We provide an overview of the legal rules of standing, which afford judges considerable discretion in deciding who gets a hearing. We show that the rules for standing in the public sphere faintly echo those about access to a courtroom, although they are even less transparent and less reliable. Individuals and actors make claims about stake, expertise, and status to gain access to audiences in public debates, but standing is virtually always contested, contingent, and bounded. Using recent developments in the American gun debate, we detail political struggles for standing, considering the claims that various actors make in order to gain an audience. We find that significant audiences grant standing based on the political stance, rather than other identifiable criteria, contributing to a divisive and partisan debate, and critical challenges for making wise policies
No More 1-Star Ubers: A New Model of Ride-Share Is Here
Get PDFDriverless technology has improved and developed considerably in recent years. Improvements ranging from more complex GPS navigation systems to intricate laser sensors that detect other cars on the road and a vehicle’s general surroundings have made it possible for companies like Tesla to manufacture and sell fully electric, self-driving cars to the general public. This Comment proposes a change in the ride-share business market toward embracing autonomous vehicles while also carefully leveraging practical concerns against state laws and technological limitations. Specifically, companies such as Lyft, through its partnership with Aptiv, have demonstrated the benefits of autonomous vehicle ride-share, but it has not been free of problems—both legal and practical
Essentializing Labor Before, During, and After the Coronavirus Pandemic
Get PDFIn the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers’ advocates, and politicians have scrambled to articulate exactly what makes essential labor “essential.” Some commentators have also argued that the rise of essential labor as a conceptual category disrupts—or should disrupt—longstanding patterns in the way the nation regulates work.
Contrary to this emerging narrative, this Article argues that essentiality is not at all new to the way we conceptualize and regulate labor in the United States. If anything, essential labor replicates and exacerbates an attitude that has always been central to American work law: the idea that work should be measured, classified, regulated, and remunerated according to how much it benefits someone other than the worker. The only thing that has changed as a result of the coronavirus pandemic is the referent in this analysis: essential to whom? Before the pandemic, the United States considered work to be essential when it was essential to the employer; during the pandemic, essential labor has come to mean tasks that are essential to society as a whole. In neither scenario is the relationship between the worker and their work at the center of legislation, adjudication, or business operations.
This Article therefore offers a novel proposal: a worker-centric analysis demonstrates that, in the United States, labor is always essential to the worker. This is both legally true, in the sense that this country ties physical and financial well-being to employment status more than any other highly developed nation, and it is morally true, in that social science scholarship and human rights discourse have established the critical relationship between work and human flourishing. In light of this, the Article contends that the longstanding and idiosyncratically American concept of “at-will” employment, whereby work relationships can be terminated upon no notice and for any reason, fails because it neglects to account for the extent to which labor is essential to workers. Relinquishing the concept of at-will employment will not by itself solve all the problems bedeviling American work law, but it is an important and necessary first step toward fixing those problems and implementing the true labor and employment law lesson of COVID-19
Introduction: A Tribute to James H.M. Sprayregen
Get PDFEach year, the Emory Bankruptcy Developments Journal honors an individual who has made a significant impact on the field of bankruptcy law with the Distinguished Service Award for Lifetime Achievement. On March 26,2019, the Emory Bankruptcy Developments Journal presented James H.M. Sprayregen with the Twenty-First Annual Distinguished Service Award for Lifetime Achievement
The Decline in Value Formulation: How Courts Should Approach State Bulk Sale Provisions in Bankruptcy
Get PDFBulk sale statutes require purchasers in a bulk sale to follow certain procedures in order to protect the state’s interest in recovering and collecting unpaid taxes. The recent decision in Illinois Department of Revenue v. Hanmi Bank left many practitioners wanting for a more robust answer to the questions of whether bulk sale provisions create interests of value for state revenue departments and how courts should classify those interests. The author argues that these interests should be protectable under § 363(e) of the Bankruptcy Code. The author further provides a framework for courts to determine the extent to which this protection should extend. Under this framework, which builds on statements made in dicta in Illinois Department of Revenue v. Hanmi Bank, the burden should be placed on a state’s department of revenue to prove that failing to protect an interest derived from the bulk sale statute will result in that interest losing value. A state would successfully prove this by showing that it would have recovered value from its interest had that interest been protected
Acceptance Remarks
Get PDFAcceptance remarks by James H.M. Sprayregen at the Emory Bankruptcy Developments Journal Banquet. Mr. Sprayregen reflected on his career and spoke about the “rescue model” of insolvency legislation, and shared advice with students on a legal career in practicing restructuring law
Consumer Bankruptcy Panel: Bringing Relevance Back to Consumer Bankruptcy
Get PDFConversations on the consumer panel centered around the relevance of bankruptcy for the average consumer and how the system could be improved. The bulk of this panel discussed the notion that the Bankruptcy Code, when drafted, did not effectively cover many of issues faced by the average consumer today. The astronomical increases in student loan debt, credit card debt, mortgages, and car payments are some of the key issues discussed
The Relative Relevance of Bankruptcy: A Response to Professor Martin
Get PDFProfessor Daniel Keating comments on and adds to Professor Martin’s arguments by surveying some bankruptcy players to gain some “real world” perspective, including: two federal bankruptcy judges, one chapter 7 and chapter 13 standing trustee, one career law clerk to a federal bankruptcy judge, one former attorney advisor for the Bankruptcy Court for the Eastern District of Missouri, one bankruptcy lawyer who does mostly business but some consumer bankruptcy, and four lawyers who do primarily or exclusively consumer bankruptcy work. Based on this perspective, Keating concludes that whether Martin’s prescriptions for bankruptcy reform will make bankruptcy more relevant depends a lot on the accuracy of empirical assumptions and predictions that underlie her Article—assumptions about the characteristics of the current consumer debtor population as well as predictions about how her reforms would affect the future behavior of both debtors and creditors
Wrongful Convictions: Not Just an American Phenomenon?: An Investigation Into the Causes of Wrongful Convictions in the United States, Germany, Italy, and Japan
Get PDFThis Comment first examines the U.S. adversarial system and the causes of wrongful convictions in the U.S. adversarial system. This Comment then examines the German inquisitorial system and potential causes of wrongful convictions in the German inquisitorial system. Then, the Italian hybrid system and the potential causes of wrongful convictions in the Italian system. Finally, this Comment then examines the Japanese hybrid Saiban-in system and the potential cause of wrongful convictions in the Japanese system. This Comment proposes that, to prevent wrongful convictions, criminal justice reform must be undertaken to incorporate the positive aspects of the United States, German, Italian, and Japanese systems, while limiting and recognizing the systemic problems that produce wrongful convictions