Our Extended Family Article
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Brooke J. Bowman, Our Extended Family, 17 Second Draft 16 (2003)Clicking on the button will copy the full recommended citation.
Articles
Federalism and the Contrivances of Public Law Article
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Paul Boudreaux, Federalism and the Contrivances of Public Law, 77 St. John's L. Rev. 523 (2003)Clicking on the button will copy the full recommended citation.
Determining Congressional Intent Regarding Dischargeability of Imputed Fraud Debts in Bankruptcy Article
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Theresa J. Pulley Radwan, Determining Congressional Intent Regarding Dischargeability of Imputed Fraud Debts in Bankruptcy, 54 Mercer L. Rev. 987 (2003)Clicking on the button will copy the full recommended citation.
“Defensive Territoriality”: A New Paradigm for the Prosecution of Extraterritorial Business Crimes Article
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Ellen S. Podgor, “Defensive Territoriality”: A New Paradigm for the Prosecution of Extraterritorial Business Crimes, 31 Ga. J. Int'l & Comp. L. 1 (2003)Clicking on the button will copy the full recommended citation.
Designing and Using Peer Review in a First-Year Legal Research and Writing Course Article
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Kirsten K. Davis, Designing and Using Peer Review in a First-Year Legal Research and Writing Course, 9 Legal Writing 1 (2003)Clicking on the button will copy the full recommended citation.
Using peer review in a first-year legal research and writing course has advantages. A peer review exercise encourages cooperation, puts students in the audience role, reinforces basic writing skills, and gives students experience with giving constructive feedback. This article provides information about designing an effective in-class peer review and reports how students responded to the exercise.
Housing in the Heartland: An Examination of the Hollman v. Cisneros Consent Decree, the Politics of Racial Concentration and the Possibilities Offered by Democratic Experimentalism Article
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Ciara Torres-Spelliscy, Housing in the Heartland: An Examination of the Hollman v. Cisneros Consent Decree, the Politics of Racial Concentration and the Possibilities Offered by Democratic Experimentalism, 17 Nat'l Black L.J. 98 (2003)Clicking on the button will copy the full recommended citation.
Domino Effect: The Continued Existence of Liability for Fraud in Bankruptcy Despite Good-Faith Settlements by the Honestly Unfortunate Settlor Article
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Theresa J. Pulley Radwan, Domino Effect: The Continued Existence of Liability for Fraud in Bankruptcy Despite Good-Faith Settlements by the Honestly Unfortunate Settlor, 53 Cath. U. L. Rev. 81 (2003)Clicking on the button will copy the full recommended citation.
Extraterritorial Criminal Jurisdiction: Replacing “Objective Territoriality with “Defensive Territoriality” Article
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Ellen S. Podgor, Extraterritorial Criminal Jurisdiction: Replacing “Objective Territoriality with “Defensive Territoriality”, 28 Studies in Law, Politics, and Society 117 (2003)Clicking on the button will copy the full recommended citation.
The "objective territorial principle" is a common jurisdiction base used in the United States for the prosecution of extraterritorial crimes. With increased globalization, it becomes easier for a prosecutor to demonstrate that conduct occurring outside the United States is having a substantial effect in this country. Although "objective territoriality" expands the limits of extraterritorial jurisdiction, it sometimes fails to offer jurisdiction for conduct directly targeting the United States government. This article suggests that "objective territoriality" needs to be reconfigured to provide more respect for the laws of other countries. Likewise, in keeping with the decision of United States v. Bowman, it is important to provide extraterritorial jurisdiction when necessary to protect government processes of the United States. This article offers the concept of "defensive territoriality" as an alternative to "objective territoriality." It distinguishes this new concept from the "protective principle" and presents contextual application of how this new principle might operate in determining issues of extraterritoriality.
Trustees in Trouble: Holding Bankruptcy Trustees Personally Liable for Professional Negligence Article
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Theresa J. Pulley Radwan, Trustees in Trouble: Holding Bankruptcy Trustees Personally Liable for Professional Negligence, 35 Conn. L. Rev. 525 (2003)Clicking on the button will copy the full recommended citation.
Professional negligence is a fact of life. Insurance companies know this. Professionals know this. The general public knows this. However, not all professionals are responsible for their own negligence. For some professionals, negligence liability may be curbed for policy reasons. However, this article argues that no such policy reasons exist for limiting the personal liability of a negligent bankruptcy trustee.
Courts treat negligent trustees in one of three ways. The first, and most lenient standard for trustees, is that negligence, whether it be "mere negligence" or "gross negligence" will not subject a trustee to liability. In circuits following this standard, a trustee must take an intentional action in order to be personally liable for that action. This standard evolved from decisions in non-bankruptcy cases regarding immunity for judges and other court-appointed employees.
The second possible standard, which has gained popularity as a "middle-ground" alternative, allows trustees to be liable for gross negligence but not for mere negligence. In so doing, these courts have tried to hold a trustee liable for something less than his or her intentional actions without going so far as to hold a trustee liable for simple, garden-variety negligence.
Finally, some courts hold trustees personally liable for any type of negligence, as well as intentional actions. The rationale for this liability stems from the trustee's role as an attorney, subject to standards of reasonableness in light of the circumstances. This article argues that such a standard should be utilized by all courts in order to promote a fair distribution of bankruptcy assets among the creditors and to comply with public expectations of a trustee's performance. Although ideas of immunity evolve from legal ideas, these ideas are outdated and inapplicable in the context of modern bankruptcy cases. And, while gross negligence offers a middle ground, this article argues that defining professional negligence in terms of a similarly situated bankruptcy trustee obviates the need for such a middle ground.
Government Surveillance of Attorney-Client Communications: Invoked in the Name of Fighting Terrorism Article
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Ellen S. Podgor and John Wesley Hall, Government Surveillance of Attorney-Client Communications: Invoked in the Name of Fighting Terrorism, 17 Geo. J. Legal Ethics 145 (2003)Clicking on the button will copy the full recommended citation.
This essay provides a critical analysis of Attorney General Ashcroft's Order permitting the government to monitor attorney-client conversations in prison. It provides a summary of the Order, the responses to the Order, and discusses ongoing litigation that contests the Order. The Essay also provides, as background, the contextual setting that allows for monitoring under existing provisions in Title III and FISA. After examining the constitutional issues emanating from Ashcroft's Order permitting attorney-client monitoring in prison, there is a discussion of the implications to the Attorney-Client and Work Product Privileges. Of particular focus is the ethical responsibilities of counsel when maintaining contact with a client when monitoring may be occurring. The Essay considers the importance of finding an appropriate balance between civil liberties and national security, but maintains that the Attorney General should not be permitted to disregard constitutional rights, the attorney-client privilege and the ethical responsibilities of attorneys, claiming that these measures are necessary to fight terrorism.