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Is Policing for Profit Really a Police Power Exception? Civil Asset Forfeiture as an Excessive Fine and the Police Power Exception to the Automatic Stay
Get PDFCourts have long held that civil asset forfeiture falls under the police power exception to the automatic stay because of its goal to deter crime and the government’s presumed lack of monetary incentive. However, civil forfeiture has increasingly been criticized as excessive and unrestrained, while municipalities have been accused of utilizing it as a fundraising tool for law enforcement agencies. The author argues that civil asset forfeiture can unfairly punish the creditors in a bankruptcy proceeding and that, when the forfeiture constitutes an excessive fine under the Eighth Amendment, the police power exception to the automatic stay should not apply
11 U.S.C. § 541 and D&O Insurance: An Analysis of the Insured versus Insured Exclusion in a Bankruptcy Context Following Indian Harbor
No full textDirectors and Officers insurance policies have long contained “insured versus insured” exclusions which prohibit directors and officers covered under the same policy from filing suit against one another. These provisions can be problematic in the bankruptcy context, specifically when courts must determine whether claims filed by or on behalf of a post-petition debtor should be covered by a policy that includes an insured versus insured provision. The author focuses on the majority and dissenting opinions in Indian Harbor Insurance Company v. Zucker to illustrate the dichotomy in approaches to insured versus insured provisions in the bankruptcy context. The author ultimately proposes that courts implement a four-step approach to determine an insured versus insured provision’s applicability when a debtor or trustee brings a claim against an insured on behalf of the estate
Lawyers, Judges and Unwritten Rules
Get PDFProfessor Bruce Markell adds to the discussion on Professor Baird’s piece by offering a different perspective on the origin and enforcement of the unwritten rules. The author agrees with Professor Baird’s conclusions, but differs on what has shaped both the current set of unwritten rules and the role of the judge in their application. He first explains his understanding of the role of fraud in avoiding transactions. He then assesses Professor Baird’s perception of the role of the bankruptcy judge in corporate reorganizations. He concludes with a counternarrative, based on the Marquess of Queensbury’s rules for boxing, for the role of the judge
Do Courts Change Politics? Heller and the Limits of Policy Feedback Effects
Get PDFDistrict of Columbia v. Heller was a landmark ruling in which the Supreme Court established that citizens have a constitutional right to possess firearms in their homes for self-protection. The 5-4 decision—along with the Court’s subsequent ruling in McDonald v. Chicago—upended the prevailing wisdom that the Second Amendment protected the right of the states to assemble militias for collective security. In this Article, we examine the effects of these rulings on gun regulation in the United States and, more to the point, on gun politics. We situate our analysis within several related theoretical frameworks, most notably those focused on policy feedback and on the role of courts in producing social change. We argue that the effects of Heller (together with the parallel decision in McDonald) have been rather limited. We examine the rulings’ first-order effects on pre-existing gun control laws, as well as second-order effects on a number of related outcomes. We find that Heller and its progeny have had generally small or non-existent impacts on gun policy, on the organizational capacities and political strategies of pro-gun and pro-regulation groups, and on public attitudes toward gun regulation. Our findings support a constrained view of the Court’s ability to drive social and political change. We conclude, however, by noting that recent developments—particularly hints that some Supreme Court Justices are eager to develop Second Amendment jurisprudence—have the potential to alter these conclusions
The Impact of Artificial Intelligence on Forensic Accounting and Testimony--Congress Should Amend The Daubert Rule to Include a New Standard
Get PDFThis Essay attempts to address the current issues and legal implications surrounding the use of artificial intelligence by forensic accounting experts and its importance to forensic accounting research. It reviews existing law, proposes changes to the Federal Rules of Evidence for using artificial intelligence in the courtroom, and covers emerging technology a forensic accountant may encounter, such as blockchain, cryptocurrency, “smart contracts,” machine learning, and algorithmic entities. Finally, the Essay concludes that the changes to the rules should encompass standards to account for artificial intelligence reliability and argues forensic accounting experts and all forensic experts are needed even more in light of this new technology to assist the trier of fact in its deliberations
Choosing Between Healthcare and a Green Card: The Cost of Public Charge
Get PDFPublic charge policy has been part of the nation’s infrastructure since its colonial beginnings. The policy originated as a barrier to protect taxpayers from individuals who posed a risk of becoming a charge on society, relying on public aid and governmental support. Congress last addressed the public charge statute in 1952 in the Immigration and Nationality Act, and it has been further developed at the will of the executive branch alongside the growth of immigration law and the welfare state. The Department of Homeland Security (DHS) proposed a rule change to the public charge policy to be implemented in October 2019, but the proposed rule change was temporarily halted by federal courts days before it went into effect, partially because it threatened public health and posed an extreme financial burden to healthcare centers. On January 27, 2020, the Supreme Court stayed the lower court’s injunction in response to an emergency petition by the administration, effectively voiding the ban in forty-nine states and allowing the 2019 public charge policy to take effect while the issue is litigated in lower courts. The rule went into effect on February 24, 2020, a mere month prior to the onslaught of the COVID-19 outbreak in the United States. On July 29, 2020, DHS was enjoined from implementing the 2019 public charge policy for the duration of the national health emergency in response to the pandemic. Public charge policy has fallen to the discretion of the executive branch in recent decades, and the last major policy guidance was issued in 1999. Congress did not overrule the executive agency in 1999, in a way signaling acceptance of the policy trend at the turn of the millennium; however, the 2019 rule change executed by DHS derails the agency’s prior interpretation significantly. Public charge policy has historically been used by the federal government to discriminate, and it continues to be used as a political tool to exclude racial and ethnic minorities from accessing public health benefits. In burdening these minorities, the government in turn burdens the healthcare system. Without congressional action, the fate of public charge is decidedly unclear and the confusion and fear for noncitizens fueled by the 2019 rule will not abate. This Comment proposes that Congress revise the public charge statute to address concerns raised by the 2019 rule, at minimum ensuring that access to legally entitled health benefits are excluded from public charge consideration
Reasonability of a Creditor\u27s Claim for Attorneys\u27 Fees
Get PDFUnder the Bankruptcy Code, bankruptcy judges are generally given the power to limit claims for attorneys’ fees to a “reasonable” amount. If an attorney for the debtor or an attorney for a creditor’s committee tries to collect unreasonable fees from the debtor’s estate, the judge can disallow them, preserving the valuable and finite resources of the estate. Yet, the Code does not extend the judge’s power to limit claims for attorneys’ fees made by creditors. Generally speaking, creditors are not able to collect their attorneys’ fees from the debtor’s estate. However, in Pacific Gas and Electric’s (PG&E) 2019 bankruptcy case, an unusual combination of facts required the debtor to pay the attorneys’ fees of many of their creditors. If a creditor submitted a claim for unreasonable attorneys’ fees, judges would not have the power to disallow these fees. These attorneys could therefore collect exorbitant fees at the expense of other creditors, and judges would have no mechanism to control this behavior. This Comment advocates for an amendment to the Code that gives judges the power to restrict all unreasonable claims for attorneys’ fees. This amendment would solve two issues. First, the amendment would clarify that a creditor can submit claims for their attorneys’ fees when a state statute requires the debtor to pay these fees. While most jurisdictions allow a creditor’s claim to include their attorneys’ fees, a minority of bankruptcy courts do not allow these claims. The minority position is inconsistent with the Code. Therefore, this amendment to the Code would clarify that the Code does not disallow a creditor’s claims for attorneys’ fees. Second, the amendment would give judges the new power to control unreasonable claims for a creditor’s attorneys’ fees. This power would ensure that all claims including attorneys’ fees are treated the same and that creditors’ attorneys, in rare cases like the PG&E case, could not take advantage of this hole in the Code. Judges need a mechanism to control all claims that include attorneys’ fees, no matter how infrequent the situation
International Law and Prospects for Justice
Get PDFThe annual David J. Bederman Lecture honors the memory of Professor David Bederman and celebrates his extraordinary accomplishments in scholarship, teaching and advocacy. The Emory International Law Review continues the tradition of publishing the lecture in Issue 4. On Monday, October 28, 2019, Emory Law’s Center for International and Comparative Law presented the annual David J. Bederman Lecture. The lecture was given by The Honorable Rosalie Silberman Abella. Justice Abella was appointed to the Supreme Court of Canada in 2004. She is the first Jewish woman and first refugee appointed to the Court, having come to Canada with her family in 1950. She was first appointed to the bench at age 29, the youngest person appointed to the judiciary in Canada. She has written over 90 articles and written or co-edited four books
Consumer Panel: Bringing Relevance Back to Consumer Bankruptcy
No full textConsumer Panel: Bringing Relevance Back to Consumer Bankruptcy, by Nathalie Martin
Honorable Sage M. Sigler, U.S. Bankruptcy Court, Northern District of Georgia (Moderator)Nathalie Martin, Associate Dean for Faculty Development, Frederick M. Hart Chair in Consumer and Clinical Law, Professor of Law, The University of New Mexico School of LawDaniel Keating, Tyrrell Williams Professor of Law, Washington University in St. Louis School of LawDavid Lander, Professor of Practice, Saint Louis University School of LawPamela Foohey, Associate Professor of Law, Indiana University Maurer School of La
Abandoning Copyright
Get PDFFor nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and case law on the subject is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private benefits, copyright abandonment is potentially costly for rights holders but broadly beneficial for society. Nonetheless, rights holders—ranging from lauded filmmakers and photographers to leading museums and everyday creators—make the counterintuitive choice to abandon valuable works. This Article analyzes two previously untapped resources to better understand copyright abandonment. First, we survey four decades of U.S. Copyright Office records, exposing both the motivations for abandonment and the infrequency of the practice. Second, we examine every state and federal copyright abandonment case, a corpus of nearly three hundred decisions. By distilling this body of law, this Article distinguishes abandonment from a set of related doctrines and reveals the major fault lines in judicial application of the abandonment standard. Finally, we highlight the potential of abandonment to further copyright’s constitutional aims by suggesting a series of reforms designed to better align copyright holder incentives with the public good