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Allocation of Property Appreciation: A Statutory Approach to the Judicial Dialectic
Get PDFMany, perhaps the majority, of Chapter 13 cases end up being converted to Chapter 7. The converted Chapter 7 case is not a new case, it is a continuation of the case that was commenced with the filing of the original Chapter 13 petition. However, there are important structural differences between the two chapters, including over what constitutes property of the estate. This creates some thorny issues surrounding whether property of the estate as generally defined in section 541(a) of the Bankruptcy Code or property of the estate as specifically defined in Chapter 13 controls in determining the scope of the estate in the converted case. Initially, the circuits were split on this question as it related to earnings and other property acquired by the debtor after filing. Congress resolved that matter in 1994, adopting a new section 348(f)(1), which makes clear that such after-acquired property is excluded from the Chapter 7 estate. In making that choice, the legislative history cited the strong public policy favoring repayment over liquidation and the desire to avoid creating disincentives to debtors\u27 choosing Chapter 13 at the onset. However, the text new subsection did not address all the issues affecting property of the estate, including allocation of increases in the net value of property that was in existence at the time of filing. The legislative history, however, did, suggesting that the intent was to permit the debtor to at least retain increases attributable to payments made secured debt. Nevertheless, once more, the courts have split on this issue, with the most antipodal positions explicable in terms of differing approaches to statutory interpretation. Moreover, there are any number of intermediate positions that can be found in the decisional law between those extremes. This wide spectrum of different approaches to the problem has introduced a high degree of costly uncertainty and disuniformity into the system. In attempting to supply a definitive answer, this Article determines that both of the extreme positions--all such property stays with the debtor, or all such property inures to the Chapter 7 estate--are plausible but neither is without its shortcomings. Therefore, it concludes the only way definitively to resolve the matter without the inordinate delay entailed in waiting for the issue to work its way through the circuit courts, is through legislation. Therefore, this Article, lays out the language and rationale for such a reform effort. It is contended that this alternative approach addresses the weaknesses in all of the current positions and represents overall a solution that better advances the core policies underlying the consumer bankruptcy system
Diagonal Federalism: How States Should Respond to Inconsistent Federal Climate Change Mitigation Policy
Get PDFThis Note will argue that diagonal federalism—a model of governance in which states partner with one another and local governments to pursue shared policy goals—is an ideal response to inconsistent climate change mitigation policy by the Federal Government. Part I provides an overview of the foundations of American environmental policy, how that policy is predicated on federal-state partnership, and the historical precedent for state-led action on climate change mitigation policy. Part II discusses how and why federal environmental policy, and by extension, federal climate change mitigation policy, has been so inconsistent. Part III illustrates how collaboration between the Federal Government and the states is possible but remains rare with respect to climate change mitigation policy. Part IV proposes diagonal federalism as an alternative course of action for states in lieu of cooperation with the Federal Government. While there are important legal and practical limitations to this approach, it remains the most viable alternative to states as they grapple with an unreliable partner in the Federal Government.
This abstract has been adapted from the author\u27s introduction
Beyond Restoration of Honor : Compensating Veterans for the Psychological Injuries of the Gay and Transgender Bans
Get PDFThis Article is titled “Beyond Restoration of Honor” specifically to introduce the policy priority of ensuring that all Sexual and Gender Identity Minority (SGIM) veterans who were harmed by...discriminatory policies [like Don\u27t Ask, Don\u27t Tell] can obtain and use Veterans Affairs (VA) disability benefits for injuries resulting from discrimination while in the military. While this Article highlights the value of codifying a series of specific SGIM stressor markers for PTSD in the VA’s regulations concerning personal assault and creating presumptions of service-connection for specific military experiences, existing laws and regulations permit service-connection for these injuries without further regulatory changes.
In recognition of the policy concerns facing this large, under-served group of military veterans, this Article adopts a three-step approach. Part I briefly explores the relationship between SGIM status and adverse mental health outcomes among U.S. veterans. This Part pays particular attention to the characteristics of the anti-gay bans that have theoretically caused mental health injuries. Part III then examines the existing VA disability framework for compensating mental health injuries. This Part identifies VA disability compensation as the appropriate vehicle to address the unmet needs of impacted SGIM veterans.
Part III describes the research methodology and results of a study that identified and analyzed VA disability appeals in which veterans claimed that SGIM orientation discrimination caused their mental health condition. Through natural language processing (NLP) strategies and machine learning (ML) algorithms, the study identified 118 Board of Veterans’ Appeals cases out of 123,011 decisions addressing service-connection for mental health disorders. This Part presents the results of statistical analysis of the relationships between case outcomes and case characteristics. It specifies the types of mental health conditions most often claimed and awarded in SGIM discrimination cases, the demographic background of the veterans who appealed, and other factors related to the success and failure of these claims. As an aid to practitioners, this Part introduces an Online Supplement containing a digest of summarized cases, indexed by different facts which may resemble the background of a future veteran’s claim.
The last Part concludes with recommendations to ensure that those veterans who have been impacted by the military’s discriminatory policies are able to address longstanding needs and overcome persistent stigma surrounding requests for assistance. This Part discusses the benefits of developing a presumption related to SGIM discrimination in the regulations related to traumatic stressors. It also explores Canada’s recent experience developing a comprehensive governmental approach to veterans who experienced the Gay Purge and is a noteworthy example of success in the restoration of honor. It further draws salient lessons from cases litigated under the present adjudication framework. In sum, the Parts below offer a comprehensive roadmap for immediate action—well beyond simply the restoration of honor.
This abstract has been adapted from the author\u27s introduction
Quality Control: Potomac Riverkeeper v. Wheeler & Standards for Qualitative Citizen Water Quality Data in Virginia
Get PDFThis Article explores the issue of quality of citizen data through the lens of Potomac Riverkeeper v. Wheeler, a recent impaired waters listing case concerning the Shenandoah River in Virginia. Part I of this Article provides a brief overview of citizen science data in regulation and policymaking under the CWA. Part II discusses Potomac Riverkeeper v. Wheeler, examining Virginia’s water quality-related data standards and DEQ’s use (and non-use) of citizen water quality-related data and information in that case. Finally, Part III argues that Virginia should establish clear, reasonable, and specific data quality standards for qualitative citizen data so as to not only ensure DEQ’s valid use of such water quality-related data and information in supporting impaired waters determinations, but also enhance agency transparency in regulatory decision-making.
This abstract has been taken from the author\u27s introduction
Scalia-Ginsburg Collegiality Speaker Series: Maoist Takeover
No full textWe open Season 3 with a live show at William & Mary Law School, part of the Scalia-Ginsburg Collegiality Speaker Series. With our first-ever guest, we discuss the limits of friendship and offer advice on civil disagreement. But first we break down the Supreme Court\u27s ruling on an important stay application from Yeshiva University
Normalizing Reproductive Genetic Innovation
Get PDFMany societally accepted techniques were quite controversial at inception and for decades after. For example, historically, dialysis was “unnatural,” vaccination was “the poisoned quill,” and artificial insemination was akin to adultery. Despite social and cultural hurdles, the aforementioned medical techniques have today attained overall public acceptance, permissive legal treatment, and even health insurance coverage in some cases.
Unlike many now-routine treatments like in vitro fertilization (IVF), egg freezing, and organ transplantation, which flourished without significant governmental intervention, today’s controversial medical treatments, especially those involving reproductive genetic innovation, face intense regulatory barriers. Reproductive genetic innovation, which is the combination of IVF and genetic substitution or modification, is also notable for being accompanied by the continued call of scientists, regulators, and individuals for a “societal discourse.”
Yet, despite the repeated calls, there is still no clarity as to the concrete structure of a “societal discourse” or how it could be fostered. This Article adapts the tools of American and comparative administrative law and public participation to prescribe methods for a societal consultation on reproductive genetic innovation. Specifically, it draws on notice-and-comment rulemaking, agency public meetings, the recent rollout of COVID-19 vaccines, the “Consensus Development Review” used in the normalization of liver transplantation, and citizens’ juries to provide substantive suggestions for the societal discourse that scientists, commentators, and federal employees have been requesting for decades
Title IX & Disparate Impact: The Harmful Effects of Abstinence-Centric Education
Get PDFThroughout the United States, schools are failing to provide students with comprehensive sex education that equips student with the life skills necessary for healthy relationships. This shortcoming has numerous psychological, emotional, and physical health consequences for the American youth. This Note will focus on how abstinence-centric curricula can influence sexual and teen dating violence. Presently, only one state requires instruction on consent, leaving most students to first encounter consent education or anti-harassment training in higher education institutions or the workplace. In light of the high rates of violence many young people experience before turning eighteen, this instruction often comes too little, too late. Moreover, abstinence-centric education reinforces feelings of shame and fear that are common among victims of violence. This shaming disproportionately impacts female students who face higher rate of assault compared to their male counterparts. This Note will argue that abstinence-centric education therefore violates Title IX under a disparate impact theory; and, as such, the federal government should condition funding for health programs on comprehensive sex education that includes consent instruction
Bruen and the Distorted History of Gun Regulation
No full textLast Thursday, the Supreme Court struck down a lower court\u27s decision to uphold New York\u27s century-old law restricting who can obtain a license to carry a concealed firearm in public — the first major gun-related case since McDonald v. City of Chicago in 2010. The majority opinion in New York State Rifle & Pistol Association v. Bruen enforced a history, text, and tradition approach to evaluate gun regulation cases — which some warn may result in cherry-picking the historical record.
This week, Brooke talks to Timothy Zick, professor of law at William and Mary Law School and author of the forthcoming book, Managed Dissent: The Law of Public Protest, about the next major, backward-looking debate over gun control, and what\u27s to come after Bruen