Supreme Court News Article
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 48 Administrative & Regulatory Law News 21 (2023)Clicking on the button will copy the full recommended citation.
Articles
Symposium Introduction: White Collar Crime: The Past, Present & Future Article
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Ellen S. Podgor, Symposium Introduction: White Collar Crime: The Past, Present & Future, 2 Stetson Business Law Review i (2023)Clicking on the button will copy the full recommended citation.
Odd Man out: The Survival of Junior Lien Strip-offs in Chapter 13 following the Caulkett Decision Article
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Theresa J. Pulley Radwan, Odd Man out: The Survival of Junior Lien Strip-offs in Chapter 13 following the Caulkett Decision, 75 Oklahoma Law Review 457 (2023)Clicking on the button will copy the full recommended citation.
The bankruptcy system seeks to strike a balance between promoting a fresh start for a debtor in financial distress and a fair and equitable distribution of the debtor's assets to its creditors.' But among creditors, equitable does not mean equal, and some creditors enjoy more protection both within and outside of the bankruptcy system. Among the most protected creditors in bankruptcy are those with a prepetition security interest in the debtor's assets, and among the most protected of these secured creditors are those with a lien on the debtor's residential property in a Chapter 13 case. Yet those creditors-ones with a residential lien in Chapter 13-may find themselves losing the protection of that lien in bankruptcy. Lien-stripping may occur in individual cases at any time, but an interest in lien-stripping particularly increases any time the housing market declines, such as when the debts secured by those homes may exceed the value of the collateral itself. While Supreme Court case law denies the ability to undo liens in any Chapter 7 case and in some Chapter 13 cases, the Court still must determine the ability to strip off "wholly unsecured" liens in Chapter 13 cases. The circuit courts overwhelmingly allow such a strip-off, leaving creditors in those cases singularly unprotected.' While previous law review articles and legal scholarship have analyzed this issue,' many did so prior to the most recent Supreme Court decision in 2015, and these articles often consider the impact on strip-off generally. This Article reconsiders the result of that decision and the impact of seemingly inconsistent results, both on Chapter 13 strip-off cases and on Chapter 20 cases," where courts frequently disagree on the appropriate result.
Compensability, Opportunism, and the Race to the Bottom: A View from (near) the Bottom Article
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Jason Bent, Compensability, Opportunism, and the Race to the Bottom: A View from (near) the Bottom, 37 A.B.A. J. Lab. & Emp. L. 221 (2023)Clicking on the button will copy the full recommended citation.
This article is a contribution to a symposium marking the fiftieth anniversary of the National Commission on State Workmen’s Compensation Laws (National Commission). My perspective on the successes and shortcomings of the National Commission is informed by my vantage point—the State of Florida, a formidable contender in the legislative “race to the bottom” that followed the early reforms spurred by the National Commission’s admirable work. The workers’ compensation regime in Florida has undergone such significant retrenchment over recent decades that at least one Florida judge and some academic observers now hold the view that it has crossed into unconstitutionality. This article, then, is a view of the state of workers’ compensation
law from near the bottom.
The article proceeds in three parts: first, a look at the “major contributing cause” rule as applied in Florida and the resulting employer opportunism that undermines worker expectations; second, an examination of how the compensability hurdles for diseases in Florida usually permit employers to escape the costs imposed by occupational diseases; and finally, an exploration of possible solutions. Ultimately, the current inadequate and inequitable system at the bottom of the workers’ compensation hierarchy needs to be addressed by state legislatures (under renewed threat of federal action, if necessary), by state judiciaries, or by tightened federal regulation of workplaces with meaningful front-end enforcement before accidents or diseases occur, such as
through effective reforms to the Occupational Safety and Health Act of 1970 (OSHA).
The Fox Guarding the Henhouse: Government Review of Attorney-Client Privileged Material in White Collar Cases Article
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Ellen S. Podgor and Wilma F. Metcalf, The Fox Guarding the Henhouse: Government Review of Attorney-Client Privileged Material in White Collar Cases, 103 B.U. L. Rev. 475 (2023)Clicking on the button will copy the full recommended citation.
Government review of privileged material seized during law office searches or following the subpoena of an attorney to a grand jury, raise genuine concerns that implicate attorney-client privilege, work product doctrine, and ethical mandates of confidentiality. Currently, the review process may be through a Department of Justice taint or filter team, a court appointed special master, or a hybrid of these two approaches. When applied to high-profile cases such as Michael Avenatti, Rudy Giuliani, and Michael Cohen, one sees an inconsistent approach that is largely controlled by the government. Problems arise not only from this lack of uniformity, but also from certain inherent deficiencies in using a taint/filter team to review privileged material.
This Article offers a reconfiguration of this review process starting with the government’s initial decision to opt for a law office search as opposed to grand jury subpoenas duces tecum. It calls for an expansion of ethical mandates to increase the neutrality of this review process, as well as instituting procedures to ensure an independent review of privileged documents that does not compromise a defendant’s right to due process and right to effective assistance of counsel. Although fortifying the judicial role in reviewing privileged materials comes with certain costs, the aggregate benefits provide a more balanced judicial process.
Rethinking Systematic Ableism: A Response to Zagouras, Ellick & Aulisio Article
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Erin E. Andrews et al., Rethinking Systematic Ableism: A Response to Zagouras, Ellick & Aulisio, 18 Clinical Ethics 7 (2023)Clicking on the button will copy the full recommended citation.
This article is a response to Zagouras, Ellick, and Aulisio who presented a case study justifying the questioning of the capacity and autonomy of a young woman with a physical disability who was pregnant and facing coercive pressure to terminate.
Let’s All Be . . . Georgia? Expanding Access to Justice for Incarcerated Litigants by Rewriting the Rules for Writing the Law Article
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Ashley Krenelka Chase, Let’s All Be . . . Georgia? Expanding Access to Justice for Incarcerated Litigants by Rewriting the Rules for Writing the Law, 74 S.C. L. Rev. 389 (2023)Clicking on the button will copy the full recommended citation.
In 2020, the United States Supreme Court paved the way for a statutory publishing scheme that would enhance access to primary (and some secondary) legal information – they highlighted Georgia’s statutory publishing process as a way to pull some secondary material into the public domain under the government edicts doctrine. To be clear, the Supreme Court set out to more clearly define the classification of government edicts under Copyright law and not to set forth a new publishing scheme for legal materials, but the result was a glimpse into how federal and state governments could approach the publication of legal information, so information can be consistently and equitably made available to incarcerated litigants in either a print or electronic format, thereby expanding access to the Courts.
Multistate Business Entities Article
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Andrew D. Appleby and Tomer Stein, Multistate Business Entities, 55 Ariz. St. L.J. 1 (2023)Clicking on the button will copy the full recommended citation.
The binary legislative choice between state and federal regulation of a firm’s internal affairs is deeply entrenched in the existing literature and policy discussions. Alas, this regulatory menu contains a false and distortive dichotomy. The state-federal dichotomy is false because multistate formation and regulation of business entities are possible as well. This dichotomy is distortive because it deprives policymakers of the advantages of multistate corporations and other business entities. In this Article, we demonstrate that a multistate business entities regime can resolve multiple predicaments that presently bring about unfairness and inefficiencies in both business entities law and business entities taxation.
A multistate business entity regime promises to be beneficial for both the participating states and the business entities themselves. For example, by choosing to co-compete, states that have so far lost in the market for corporate charters would be able to generate—and divide among themselves—substantial business and tax revenues by offering the corporations formed under their regime unique tax and corporate law benefits. In this way, for example, a “tri-state” co-op, offered by New York, Connecticut, and New Jersey, could compete with Delaware; and a “rust belt” coalition could retain industry charters within its multistate jurisdiction.
The hitherto unnoticed potential for a multistate entity regime aligns with the Framers’ vision for state cooperation under the Constitution’s Compact Clause. Further yet, setting up this regime would vastly improve the functioning of the market for both corporate charters and other business entities. This regime would allow states to vigorously compete for both managers and investors, boost stakeholder advocacy, and accomplish ESG goals to the benefit of their constituents.
Festschrift in Honor of Peter J. Henning: Most of All a Friend Article
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Ellen S. Podgor, Festschrift in Honor of Peter J. Henning: Most of All a Friend, 68 Wayne L. Rev. 327 (2023)Clicking on the button will copy the full recommended citation.
Let’s Talk About Sex (Work): The Irony of Partial Decriminalization of Sex Work Article
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Linda S. Anderson, Let’s Talk About Sex (Work): The Irony of Partial Decriminalization of Sex Work, U. Pa. J.L. & Soc. Change 37 (2023)Clicking on the button will copy the full recommended citation.