When the Sum of the Parts are More than the Whole: How Fully Secured Creditors Can Be Preferred in Bankruptcy

The bankruptcy system seeks to provide debtors with relief from overwhelming debt, while ensuring a fair and equitable distribution to creditors. Though the filing of a bankruptcy petition stays most debt collection efforts and repayment outside of the bankruptcy system, payments made prior to the bankruptcy filing may diminish funds available to distribute to creditors during the bankruptcy case. In order to prevent pre-petition transfers from impacting post-petition distribution within the bankruptcy system, the Bankruptcy Code provides the bankruptcy trustee with the power to avoid various pre-petition transfers and to recover those transfers from the recipient. With regard to one of those potential transfers—preferential transfers—courts regularly find that transfers to fully secured creditors cannot be avoided. However, this conventional wisdom fails to consider how other sections of the Code that allow such creditors to recover additional payments in bankruptcy causes a benefit to those creditors at the expense of others. This article seeks to resolve the lack of congruity between these sections to protect the purposes behind recovery of preferential pre-petition transfers.

Articles

A Critical Look at the First 50 Years of Florida’s “Citizen” Initiative Process

Florida’s Constitution is often amended through various procedures, most of which need reform. Of particular concern is Florida’s “citizen” initiative process under Article XI, where citizens and special interest organizations are able to directly propose constitutional amendments with limited safeguards. This Article outlines the process for amending Florida’s Constitution through the initiative process, describes some of the problems with the current system, and discusses a few proposed reforms.

Sad Lawyering in Happy Valley

Lawyers generally have no trouble identifying their clients or understanding the nature of their representations. But that is not always the case. In some instances, an attorney-client relationship may be implied or inferred from the parties’ conduct. In other cases, a lawyer may acknowledge an attorney-client relationship with someone—for instance, an employee of an organizational client—but believe that the scope of the representation is limited in a fashion that exempts the lawyer from certain duties that the lawyer might otherwise owe the individual client. Yet, depending on the facts, there is no assurance that the lawyer’s belief is justified. Plus, even within the confines of a limited scope representation, the lawyer still owes the client critical duties.

Smart Home Data Privacy and an Evolving Fourth Amendment

With the growth of smart home technology comes extraordinary opportunities for data collection and a newfound tool for law enforcement investigations. But recent cases raise serious questions about privacy rights in the smart home. This Article examines evolving Fourth Amendment jurisprudence and the framework for assessing privacy and smart home technology. The narrow ruling of Carpenter v. United States is applied, and an expectation of privacy and the third-party doctrine are evaluated, calling for further reconsideration of the doctrine. Smart home data should be afforded Fourth Amendment protection, requiring a warrant to access such data from third-party providers.

Backdoor Bailouts: The Federal Reserve’s New Role as Market-Maker-of-All-Resorts and the Need for Section 13(3) Reform

This Article sheds light on the Federal Reserve’s actions during the COVID-19 financial crisis and its subsequent lack of accountability to the public. Congress reformed Section 13(3) in the Dodd-Frank Act, restricting emergency fund lending to broad-based eligibility programs. Such broad-based eligibility programs became relevant during the COVID-19 financial crisis. On March 23, 2020, the Federal Reserve declared unlimited quantitative easing and two unique corporate credit facilities designed to purchase private credit on the open market. The Federal Reserve now holds the corporate credit of Berkshire Hathaway, Apple, Walmart, and other big businesses as a consequence of Dodd-Frank’s changes to Section 13(3). Currently, the Federal Reserve is acting as a market-maker-of-all-resorts rather than its rightful role of lender-of-last-resort and will continue to do so until Congress intervenes. This Article examines Dodd Frank’s failure to reform Section 13(3) and the Federal Reserve’s resulting inequitable support of publicly traded companies. It also proposes Section 13(3) remedies for Congress to pursue. Particularly, this Article suggests that Congress legislate automatic stabilizer metrics within which the Federal Reserve could operate, explicitly forbid the Federal Reserve from directly purchasing private credit, and end the broad based eligibility program requirement to ensure that the Federal Reserve abandon its ad hoc role as market-maker-of-all-resorts.