10633 research outputs found
Sort by
Legal Spirits 066: The International Moot Court Competition in Law & Religion
No full textWe’re back after a bit of a hiatus with a new Legal Spirits episode. Center Director Mark Movsesian talks with Professors Andrea Pin and Luca Vanoni about the International Moot Court Competition in Law and Religion, an annual event that gathers law students from the US and Europe to argue a case before panels representing the European Court of Human Rights and the US Supreme Court. Andrea and Luca discuss how they came up with the idea for this unique competition, its pedagogical goals, and why it has succeeded for a decade and counting. Listen in
Packing Our Way to Balance: A Necessary Correction for the Supreme Court
No full textThe Supreme Court is in turmoil. It has the lowest recorded approval rating in its history. Multiple decisions over the past decade made by Justices nominated by a single political party, that the majority of the country viewed as political in nature, have tarnished the reputation of what was once a beacon of justice and impartiality. The Court is increasingly seen as a partisan institution with political actors rather than the fair and honest arbiter America needs it to be. In addition to dramatically unpopular decisions, the Court has suffered increasingly hostile and political machinations in its nominating process. This Article examines this problem and proposes an original solution. The Article begins the examination with a history of the Court and the initially controversial claim that it had the power to decide whether Acts of Congress were unconstitutional. The Article then examines the need for public support given the inherent inability of the Court to enforce any of its rulings. The Article continues by looking at how increased partisanship and uniparty decisions have weakened the legitimacy of the Court. The Article then reviews historic decisions that were met with scorn and hostility, but where bipartisan majority opinions actually accelerated popular acceptance of decisions, and reinforced faith in the Court itself. The Article then examines the benefits of a mean, or compromise, solution and the philosophical underpinnings for such, as supported by Aristotle and John Stuart Mill. Voluntary compromise, however, is almost unobtainable in our hyper-politicized world. To achieve balanced decisions and incentivize compromise, the Article argues that adoption of a Constitutional Amendment is necessary, requiring a Justice appointed by the opposite party to be a member of the majority opinion for any binding decision. The Article subsequently examines the near impossibility of Amendment adoption in the current political environment and proposes a solution: increasing the number of Justices as a means of forcing the adoption of the “Balanced Law Amendment.” The Article finally examines both the history of, and current potential for, packing the Court, and concludes that packing the Court is certainly Constitutional and could lead to the adoption of the necessary Amendment, making both the Court and our country stronger through balancing the decisions themselves rather than balancing the bench
Betrayal of Trust, Restoration of Hope: How to Enforce the Law and Transform the Lives of Immigrants Ripped off and Damaged by Bad Lawyers and Scammer Notarios
No full text(Excerpt)
Immigrants seeking lawful status, or otherwise facing denial of entry or deportation, have no right to counsel at government expense. Not even the most sophisticated immigrant can effectively navigate the morass of U.S. immigration law, frequently described by federal judges as “labyrinthine,” “baffling,” “arcane,” and “almost as impenetrable as the Internal Revenue Code.” Competent, ethical representation is essential and, in theory, available from lawyers or accredited representatives. Yet, for most, such representation is shockingly hard to locate and prohibitively expensive. While over 200 nonprofit organizations provide low-cost or free representation to noncitizens, they can assist only a small fraction of those in need.
Due partly to the dearth of affordable and capable counsel, desperate immigrants too often end up being seduced by a well-advertised and readily available but legally fatal alternative. That is, they fall victim to a lucrative industry of greedy immigration representatives who, to enrich themselves, systematically target, deceive, defraud, and ultimately endanger their clients. This pernicious phenomenon is often referred to as “notario fraud.” But the harm these predatory actors inflict is not merely the misappropriation of their client’s hard-earned money for scams or wholesale failure to perform as promised. By filing phony petitions and applications that cannot possibly succeed, often containing forged signatures of hapless clients who have no way of knowing what their lawyers are up to, these scam artists affirmatively place their clients in harm’s way to brining those people to the attention of U.S. Immigration and Customs Enforcement (“ICE”) and other immigration authorities who otherwise may never have known of their existence. This almost inevitably functions as a fast track to deportation, no matter how meritorious their claims for relief might have been, if properly asserted.
Today, when potential relief becomes available and is widely reported on by popular media, the likelihood increases that immigrants—eager to take advantage of these unpredictably open windows—will fall victim to scammers and substandard attorneys. As a result, aggressive, effective deterrence against and incapacitation of notario fraud is ever more critical. Yet, virtually none of the educational resources or outreach materials for immigrants or their attorneys mention one of the most important and only potentially viable safeguards for victims of notario fraud immigration scams: the potential to investigate and to prosecute U visa-qualifying crimes committed in the course of poor legal representation
Stare Decisis and Zombie Laws
No full text(Excerpt)
In recent years, the Supreme Court has shown little interest in stare decisis—the principle that courts should honor precedent—as an animating value in constitutional interpretation. This has put many fundamental rights in a vulnerable posture. This Essay focuses on one underappreciated dimension of the decline in respect for stare decisis as it relates to fundamental rights: the relationship between stare decisis and what I will call, and what others have called, “zombie laws.”
Zombie laws are laws that were rendered inoperative by courts but never rescinded; for example, an abortion ban that became unenforceable after Roe v. Wade. Such a law may have been held unconstitutional, but it was never taken out of the statute books. As a result, if that original court ruling gets overturned, it raises the potential that a zombie law will be brought back to life
The Valuation of Crypto Currency Mining Property Under 11 U.S.C. § 506(a)(1)
No full text(Excerpt)
Section 506(a)(1) of title 11 of the United States Code (the Bankruptcy Code ) provides that a secured creditor\u27s claim is a secured claim to the extent of the value of such creditor\u27s interest in the estate\u27s interest in such property . . . and is an unsecured claim to the extent that the value of such creditor\u27s interest . . . is less than the amount of such allowed claim. The valuation of collateral is determined in light of the purpose of the valuation and of the proposed disposition or use of such property. However, the Bankruptcy Code is silent on which valuation method courts should employ.
The United States Court of Appeals for the Third Circuit noted in In re Heritage Highgate, Inc. that Congress envisioned a flexible approach to valuation whereby bankruptcy courts would choose the standard that best fits the circumstances of a particular case. The Supreme Court elaborated in Associates Commercial Corp. v. Rash that the lower courts must evaluate the actual use of the property by the debtor in its valuation analysis.
This article analyzes the valuation of crypto currency mining assets under section 506(a)(1) in bankruptcy cases. The nature of crypto currency mining provides unique challenges in the valuation step. The mining process requires hundreds of sophisticated “miners,” potentially costing over $10,000 each, and requiring significant energy resources that are usually provided by individualized agreements with public and private utilities. Part I of this article discusses the valuation of special use property. Part II discusses potential valuation methods available to the court
Applicability of Section 109(a)’s Debtor Eligibility Requirements to Chapter 15 Cases
No full text(Excerpt)
Upon a petition for recognition, a foreign insolvency case may be recognized in the United States under chapter 15 of title 11 of the United States Code (the Bankruptcy Code ). Courts are divided as to whether section 109(a)’s debtor eligibility requirements, which apply to U.S. bankruptcy cases, apply to a chapter 15 case. In the Second Circuit, a foreign representative will have to demonstrate that the debtor satisfies section 109(a)’s requirement of being a person who resides or has a domicile, a place of business, or property in the United States, or a municipality, while debtors situated in the Eleventh Circuit likely will not.
This article analyzes the circuit split between the Second and Eleventh Circuits regarding the applicability of section 109(a) to recognition of a foreign proceeding in the U.S. under chapter 15. Part I discusses the Second Circuit’s approach and Barnet’s holding that section 109(a) doesapply because a plain reading of the statute implies that chapter 1 of the Bankruptcy Code applies to the entire Bankruptcy Code including chapter 15. Part II discusses the Eleventh Circuit’s approach and Al Zawawi’s holding that that 109(a) does not apply because there was precedent on point in that circuit (In re Goerg). Goerg held that the debtor need not satisfy section 109(a) because the statutory scheme ought to be construed broadly to effectuate Congress’ intent to facilitate the resolution of cross border cases in the United States. Part III explains that even where section 109(a) applies, its requirements are minimal and easily satisfied in various ways
U.S. Court’s Role in Approving the Sale of U.S. Assets in a Chapter 15 Case
No full text(Excerpt)
Chapter 15 cases deal with cross-border insolvency and allow U.S. courts to recognize foreign bankruptcy proceedings and cooperate with foreign courts. Upon recognition of a foreign main proceeding, section 363 of title 11 of the United States Code (the Bankruptcy Code ) will apply to the transfer of U.S. assets. However, the standard for approving a sale under section 363 in a chapter 15 case is not specified.
This article analyzes the bankruptcy court decisions on whether chapter 15 requires U.S. courts to conduct their own individual analysis or to defer to the foreign court in approving the sale of U.S. assets under section 363 of the Bankruptcy Code. Part I of this article discusses the principle of comity in chapter 15 and relevant Bankruptcy Code provisions. Part II examines early cases in which U.S. courts determined how much, if at all, they should be promoting comity in chapter 15 cases. Part III reviews the cases in which courts have reaffirmed earlier holdings that U.S. bankruptcy courts must perform their own independent analysis when approving a section 363 sale in a chapter 15 case. Part IV discusses the novel issue of whether U.S. courts must defer to foreign courts to resolve certain issues, such as ownership disputes, before approving a section 363 sale of U.S. assets
