This Note analyzes the effect of the Theft of Trade Secrets Clarification Act ("TTSCA"), and argues that Congress should continue to cast a watchful eye on the Economic Espionage Act ("EEA"). Section I examines the EEA in detail, including its rocky history with the void for vagueness doctrine. Section II details the plight of Sergey Aleynikov and his arduous path through the federal court system, culminating in his recent arrest under New York State law. Section III examines the TTSCA’s scope and the unintended concomitant confusion it created in Agrawal — tried under one version of the EEA, but likely to be decided under another ex post facto. Finally, Section IV analyzes potential outcomes in the Agrawal case and argues that federal preemption is crucial to the healthy operation of the EEA. In order to ensure justice under the EEA, federal preemption — rather than the uncertainty of a mixed bag of state statutes — is necessary.
{"title":"Fool Me Once: U.S. v. Aleynikov and the Theft of Trade Secrets Clarification Act of 2012","authors":"Robert Damion Jurrens","doi":"10.15779/Z388H7C","DOIUrl":"https://doi.org/10.15779/Z388H7C","url":null,"abstract":"This Note analyzes the effect of the Theft of Trade Secrets Clarification Act (\"TTSCA\"), and argues that Congress should continue to cast a watchful eye on the Economic Espionage Act (\"EEA\"). Section I examines the EEA in detail, including its rocky history with the void for vagueness doctrine. Section II details the plight of Sergey Aleynikov and his arduous path through the federal court system, culminating in his recent arrest under New York State law. Section III examines the TTSCA’s scope and the unintended concomitant confusion it created in Agrawal — tried under one version of the EEA, but likely to be decided under another ex post facto. Finally, Section IV analyzes potential outcomes in the Agrawal case and argues that federal preemption is crucial to the healthy operation of the EEA. In order to ensure justice under the EEA, federal preemption — rather than the uncertainty of a mixed bag of state statutes — is necessary.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121054173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the 'Obamacare' cases, the Court considers whether the Affordable Care Act ('ACA') exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.This very short essay explains the battle over Obamacare in terms of the classic American federalism debates, and proposes a better way of analyzing this and all federalism issues, drawing from a new book. (Different versions of this essay were cross-posted to RegBlog, the American Constitution Society Blog, and the Environmental Law Profs Blog on June 21, 2012.)
{"title":"Obamacare and Federalism's Tug of War Within","authors":"Erin Ryan","doi":"10.2139/SSRN.2088762","DOIUrl":"https://doi.org/10.2139/SSRN.2088762","url":null,"abstract":"This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the 'Obamacare' cases, the Court considers whether the Affordable Care Act ('ACA') exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.This very short essay explains the battle over Obamacare in terms of the classic American federalism debates, and proposes a better way of analyzing this and all federalism issues, drawing from a new book. (Different versions of this essay were cross-posted to RegBlog, the American Constitution Society Blog, and the Environmental Law Profs Blog on June 21, 2012.)","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117178817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Increasing federal involvement in the wholesale electricity market, and the ever-important emphasis on renewable energy resources, exposed the inadequacies of the existing transmission infrastructure. The Energy Policy Act of 2005 (EPAct 2005) attempted to address the transmission problems but failed to adequately consolidate federal power over transmission siting. The resulting atmosphere presents an unsustainable dichotomy in which federal involvement encourages generation dependent upon transmission access, while state control over transmission siting impedes the necessary investment and capital improvement. Despite the efforts of EPAct 2005, a coherent and effective national energy policy remains unobtainable without the ability to incentivize generation and guarantee access to transmission by facilitating its development across state lines.This note proceeds in two sections. First, the background section provides a brief history of federally mandated deregulation in the wholesale electricity market. A brief summary of EPAct 2005 then explains Congress's attempt to encourage transmission investment by allowing limited federal jurisdiction over the siting process. Second, the note analyzes the current pressures exerted on the transmission grid by renewable energy and inadequate state siting processes. The analysis then addresses the judicial interpretations of EPAct 2005 and how the United States Courts of Appeals delayed federal jurisdiction over transmission siting for the foreseeable future.
{"title":"Energy Policy Act of 2005: Pseudo-Fed for Transmission Congestion","authors":"Alexander K. Obrecht","doi":"10.5195/PJEPHL.2013.43","DOIUrl":"https://doi.org/10.5195/PJEPHL.2013.43","url":null,"abstract":"Increasing federal involvement in the wholesale electricity market, and the ever-important emphasis on renewable energy resources, exposed the inadequacies of the existing transmission infrastructure. The Energy Policy Act of 2005 (EPAct 2005) attempted to address the transmission problems but failed to adequately consolidate federal power over transmission siting. The resulting atmosphere presents an unsustainable dichotomy in which federal involvement encourages generation dependent upon transmission access, while state control over transmission siting impedes the necessary investment and capital improvement. Despite the efforts of EPAct 2005, a coherent and effective national energy policy remains unobtainable without the ability to incentivize generation and guarantee access to transmission by facilitating its development across state lines.This note proceeds in two sections. First, the background section provides a brief history of federally mandated deregulation in the wholesale electricity market. A brief summary of EPAct 2005 then explains Congress's attempt to encourage transmission investment by allowing limited federal jurisdiction over the siting process. Second, the note analyzes the current pressures exerted on the transmission grid by renewable energy and inadequate state siting processes. The analysis then addresses the judicial interpretations of EPAct 2005 and how the United States Courts of Appeals delayed federal jurisdiction over transmission siting for the foreseeable future.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127508789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 292 of the Patent Act forbids the false marking of unpatented or infringing articles with the type of marks usually used by patentees to provide public notice of their patented inventions. Prior to the recent enactment of patent reform, the statute provided a rare qui tam enforcement mechanism that allowed private individuals to enforce the criminal offense. But for much of its history, the law was rarely enforced. Then, in a 2009 decision, the Court of Appeals for the Federal Circuit increased the potential awards for those bringing enforcement actions, which resulted in a dramatic increase in the volume of false-marking claims. In response to the slew of new false-marking suits, Congress amended § 292 in 2011 as part of the Leahy–Smith America Invents Act. This Note reviews the impact of recent § 292 case law, analyzes the recent statutory amendments, and proposes guidelines for interpreting and enforcing the amended statute that will help to ensure it achieves its objective of curtailing false marking while minimizing the social costs of excessive litigation.
《专利法》第292条禁止在非专利或侵权物品上使用专利权人通常用于向公众提供其专利发明的标志类型的虚假标记。在最近颁布的专利改革之前，该法规提供了一种罕见的集体执行机制，允许私人执行刑事犯罪。但在其历史上的大部分时间里，这项法律很少得到执行。然后，在2009年的一项裁决中，联邦巡回上诉法院(Court of Appeals for the Federal Circuit)增加了对那些提起执法行动的人的潜在赔偿，这导致了虚假评分索赔数量的急剧增加。为了应对大量新的虚假标记诉讼，国会于2011年修订了第292条，作为《莱希-史密斯美国发明法》的一部分。本文回顾了最近的§292判例法的影响，分析了最近的法定修订，并提出了解释和执行修订后的法规的指导方针，这将有助于确保其实现减少虚假标记的目标，同时最大限度地减少过度诉讼的社会成本。
{"title":"From Forest Group to the America Invents Act: False Patent Marking Comes Full Circle","authors":"Nicholas Stephens","doi":"10.2139/ssrn.1813422","DOIUrl":"https://doi.org/10.2139/ssrn.1813422","url":null,"abstract":"Section 292 of the Patent Act forbids the false marking of unpatented or infringing articles with the type of marks usually used by patentees to provide public notice of their patented inventions. Prior to the recent enactment of patent reform, the statute provided a rare qui tam enforcement mechanism that allowed private individuals to enforce the criminal offense. But for much of its history, the law was rarely enforced. Then, in a 2009 decision, the Court of Appeals for the Federal Circuit increased the potential awards for those bringing enforcement actions, which resulted in a dramatic increase in the volume of false-marking claims. In response to the slew of new false-marking suits, Congress amended § 292 in 2011 as part of the Leahy–Smith America Invents Act. This Note reviews the impact of recent § 292 case law, analyzes the recent statutory amendments, and proposes guidelines for interpreting and enforcing the amended statute that will help to ensure it achieves its objective of curtailing false marking while minimizing the social costs of excessive litigation.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"166 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117053072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Australian Personal Property Securities Act is expected to come into force on October 31, 2011. The paper discusses the unitary concept of a security interest and the "substance" test that is used to determine if a transaction constitutes a security interest. It then looks at the Canadian experience with these concepts with particular emphasis on the treatment of the floating charge and flawed asset arrangements. The paper then examines legislative differences in order to determine the extent to which the Canadian cases may be of assistance to Australian courts and lawyers.
{"title":"The Concept of a Security Interest: The Canadian Experience","authors":"R. Wood","doi":"10.2139/SSRN.1912047","DOIUrl":"https://doi.org/10.2139/SSRN.1912047","url":null,"abstract":"The Australian Personal Property Securities Act is expected to come into force on October 31, 2011. The paper discusses the unitary concept of a security interest and the \"substance\" test that is used to determine if a transaction constitutes a security interest. It then looks at the Canadian experience with these concepts with particular emphasis on the treatment of the floating charge and flawed asset arrangements. The paper then examines legislative differences in order to determine the extent to which the Canadian cases may be of assistance to Australian courts and lawyers.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130617241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The area of charitable contributions under the Foreign Corrupt Practices Act ('FCPA') is an ambiguous area of law where liability for companies can be enormous. This article examines the challenges companies face under the FCPA when making charitable contributions. It provides an in-depth analysis of the Schering-Plough case, which illustrates how the Securities and Exchange Commission ('SEC') applies the record-keeping provisions of the FCPA in a situation of charitable giving; it examines Department of Justice ('DOJ') FCPA Review Opinion Procedure Releases that provide guidance on when companies’ charitable contributions will violate the anti-bribery provisions of the FCPA; it discusses the effect of 'compelled giving' laws, which require that foreign companies must agree to invest an established percentage of the profits from each contract into the community in which it operates; and it provides hypothetical situations illustrating the broad array of problems arising under the FCPA for companies making charitable contributions. The article also looks at corporate social responsibility ('CSR') in the context of FCPA enforcement. It provides hypothetical situations illustrating companies’ use of CSR to disguise acts of bribery and examines any 'chilling effect' that the FCPA has on companies’ charitable giving. This discussion is especially timely in light of the natural disasters in Haiti in 2010 and Japan in 2011. Most companies do not view charitable contributions as an area of risk in their respective FCPA and anti-corruption compliance programs. The article proposes a model FCPA compliance program for charitable contributions, including the creation of a Charitable Contributions Compliance Committee, and presents a roadmap for the due diligence required to minimize liability under the FCPA when making charitable contributions.
{"title":"No Good Deed Goes Unpunished: Charitable Contributions and the Foreign Corrupt Practices Act","authors":"W. Nelson","doi":"10.2139/ssrn.1884283","DOIUrl":"https://doi.org/10.2139/ssrn.1884283","url":null,"abstract":"The area of charitable contributions under the Foreign Corrupt Practices Act ('FCPA') is an ambiguous area of law where liability for companies can be enormous. This article examines the challenges companies face under the FCPA when making charitable contributions. It provides an in-depth analysis of the Schering-Plough case, which illustrates how the Securities and Exchange Commission ('SEC') applies the record-keeping provisions of the FCPA in a situation of charitable giving; it examines Department of Justice ('DOJ') FCPA Review Opinion Procedure Releases that provide guidance on when companies’ charitable contributions will violate the anti-bribery provisions of the FCPA; it discusses the effect of 'compelled giving' laws, which require that foreign companies must agree to invest an established percentage of the profits from each contract into the community in which it operates; and it provides hypothetical situations illustrating the broad array of problems arising under the FCPA for companies making charitable contributions. The article also looks at corporate social responsibility ('CSR') in the context of FCPA enforcement. It provides hypothetical situations illustrating companies’ use of CSR to disguise acts of bribery and examines any 'chilling effect' that the FCPA has on companies’ charitable giving. This discussion is especially timely in light of the natural disasters in Haiti in 2010 and Japan in 2011. Most companies do not view charitable contributions as an area of risk in their respective FCPA and anti-corruption compliance programs. The article proposes a model FCPA compliance program for charitable contributions, including the creation of a Charitable Contributions Compliance Committee, and presents a roadmap for the due diligence required to minimize liability under the FCPA when making charitable contributions.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117333145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-06-21DOI: 10.36646/mjlr.44.2.federal
C. Medill
The Employee Retirement Income Security Act of 1974 ("ERISA"), the federal law that regulates employer-sponsored benefit plans, has a rich history of judiciallycreated federal common law. This Article explores the theoretical, policy, statutory, and stare decisis grounds for the development of another area offederal common law under ERISA-the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability ("vicarious fiduciary liability") upon a corporation for the fiduciary activities of its employees or agents. The Article proposes that the federal courts should adopt a federal common law rule of vicarious fiduciary liability under ERISA based on the traditional scope of employment approach. Under such a rule, a corporate principal whose own internal employees or agents perform fiduciary functions during the course and within the scope of their employment or agency relationship would be strictly liable under ERISA for any breach of fiduciary duty by the employee or agent. Vicarious fiduciary liability should be limited, however, so that a nonfiduciary corporate principal would not be subject to damages claims under ERISA for the rogue fiduciary activities of its employees or agents, but would be subject to restitution as necessary to prevent unjust enrichment of the principal. A federal common law rule of vicarious fiduciary liability under ERISA is necessary for two reasons. First, a rule of vicarious fiduciary liability is essential to maintaining and enforcing ERISA's comprehensive system of fiduciary regulation. Second, vicarious fiduciary liability is needed to prevent employer overreaching under the judicially-created settlor function defense to breach of fiduciary duty claims. Absent a federal common law rule of vicarious fiduciary liability, a corporate employer in its nonfiduciary capacity as the settlor of its ERISA plan, may design the documents that govern the employer's plan as a shield against fiduciary responsibility for the actions of the employer's own internal fiduciary employees. This misuse of nonfiduciary settlor powers, which is contrary to both the letter and the spirit of ERISA, would be prevented by a federal common law rule of vicarious fiduciary liability.
{"title":"The Federal Common Law of Vicarious Fiduciary Liability Under ERISA","authors":"C. Medill","doi":"10.36646/mjlr.44.2.federal","DOIUrl":"https://doi.org/10.36646/mjlr.44.2.federal","url":null,"abstract":"The Employee Retirement Income Security Act of 1974 (\"ERISA\"), the federal law that regulates employer-sponsored benefit plans, has a rich history of judiciallycreated federal common law. This Article explores the theoretical, policy, statutory, and stare decisis grounds for the development of another area offederal common law under ERISA-the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability (\"vicarious fiduciary liability\") upon a corporation for the fiduciary activities of its employees or agents. The Article proposes that the federal courts should adopt a federal common law rule of vicarious fiduciary liability under ERISA based on the traditional scope of employment approach. Under such a rule, a corporate principal whose own internal employees or agents perform fiduciary functions during the course and within the scope of their employment or agency relationship would be strictly liable under ERISA for any breach of fiduciary duty by the employee or agent. Vicarious fiduciary liability should be limited, however, so that a nonfiduciary corporate principal would not be subject to damages claims under ERISA for the rogue fiduciary activities of its employees or agents, but would be subject to restitution as necessary to prevent unjust enrichment of the principal. A federal common law rule of vicarious fiduciary liability under ERISA is necessary for two reasons. First, a rule of vicarious fiduciary liability is essential to maintaining and enforcing ERISA's comprehensive system of fiduciary regulation. Second, vicarious fiduciary liability is needed to prevent employer overreaching under the judicially-created settlor function defense to breach of fiduciary duty claims. Absent a federal common law rule of vicarious fiduciary liability, a corporate employer in its nonfiduciary capacity as the settlor of its ERISA plan, may design the documents that govern the employer's plan as a shield against fiduciary responsibility for the actions of the employer's own internal fiduciary employees. This misuse of nonfiduciary settlor powers, which is contrary to both the letter and the spirit of ERISA, would be prevented by a federal common law rule of vicarious fiduciary liability.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"121 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124146399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To discourage firms from trying to buy and sell tax deductions, Sec. 382 of the tax code limits the ability of a firm that acquires another company to use the target's "net operating losses" (NOLs). Under the Troubled Asset Relief Program (TARP), the Treasury lent a large amount of money to GM. In bankruptcy, it then agreed to trade that debt for stock.GM did not make many cars anyone wanted to buy, but it did have $45 billion in NOLs. Unfortunately for the firm, if the Treasury now sold the stock it acquired in bankruptcy it would trigger those Sec. 382 NOL limitations. Suppose the newly reorganized GM did start making cars that consumers wanted. It would be able to use only a modest portion of its old NOL’s -- if any.Treasury "solved" this problem by issuing a series of "Notices" in which it announced that the law did not apply. On its terms, Sec. 382 states that the NOL limits apply whenever a firm's ownership changes. That rule, the Treasury declared, did not apply to itself. Notwithstanding the straightforward and all-inclusive statutory language, GM would be able to continue to use its NOLs in full after the Treasury sold its stock.The Treasury had no legal or economic justification for these Notices, which applied to Citigroup and AIG as well as to GM. Nonetheless, the Notices largely escaped public attention -- even though they potentially transferred substantial wealth to the most loyal of the administration's supporters (the UAW). That it could do so illustrates the risk involved in this kind of manipulation. We suggest that Congress give its members standing to challenge such manipulation in court.
{"title":"Can the Treasury Exempt Its Own Companies from Tax? The $45 Billion GM NOL Carryforward","authors":"J. Ramseyer, E. Rasmusen","doi":"10.2139/SSRN.1873429","DOIUrl":"https://doi.org/10.2139/SSRN.1873429","url":null,"abstract":"To discourage firms from trying to buy and sell tax deductions, Sec. 382 of the tax code limits the ability of a firm that acquires another company to use the target's \"net operating losses\" (NOLs). Under the Troubled Asset Relief Program (TARP), the Treasury lent a large amount of money to GM. In bankruptcy, it then agreed to trade that debt for stock.GM did not make many cars anyone wanted to buy, but it did have $45 billion in NOLs. Unfortunately for the firm, if the Treasury now sold the stock it acquired in bankruptcy it would trigger those Sec. 382 NOL limitations. Suppose the newly reorganized GM did start making cars that consumers wanted. It would be able to use only a modest portion of its old NOL’s -- if any.Treasury \"solved\" this problem by issuing a series of \"Notices\" in which it announced that the law did not apply. On its terms, Sec. 382 states that the NOL limits apply whenever a firm's ownership changes. That rule, the Treasury declared, did not apply to itself. Notwithstanding the straightforward and all-inclusive statutory language, GM would be able to continue to use its NOLs in full after the Treasury sold its stock.The Treasury had no legal or economic justification for these Notices, which applied to Citigroup and AIG as well as to GM. Nonetheless, the Notices largely escaped public attention -- even though they potentially transferred substantial wealth to the most loyal of the administration's supporters (the UAW). That it could do so illustrates the risk involved in this kind of manipulation. We suggest that Congress give its members standing to challenge such manipulation in court.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"135 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122746730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Eastern District of North Carolina erred in its conclusions that the creditors in Shearin and Harrelson did not fall within the scope of the exception described in sections 362(b)(3) and 546(b) of the Bankruptcy Code. The term “interest in property,” as used in section 362(b)(3), is broader than the term “lien.” The Leonard and Small Courts spent much time dissecting the terms of Chapter 44A and analyzing whether a lien is created instantly upon delivery or if it is only created upon filing and perfecting a lien. Most courts hold that once entitlement to a lien has been established, statutory requirements concerning perfection are to be liberally construed in favor of the lien claimant. When drafting the Bankruptcy Code and creating the exception to the automatic stay under sections 362(b)(3) and 546(b) Congress did not use the term “lien.” Rather, Congress elected to use the word “interest in property.” Both cases should turn on the definition of “interest in property” and not the “lien” terminology used by both the Leonard and Small courts. This is because Congress is not shy in its use of the word “lien” throughout the Bankruptcy Code. As a matter of statutory construction, when Congress “includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
{"title":"Is it an Interest in Property or a Lien? The Misapplication of the Federal Bankruptcy Code in North Carolina Bankruptcy Court and the Legal Implication in Construction Practice","authors":"Laura O. Ross","doi":"10.2139/SSRN.1762951","DOIUrl":"https://doi.org/10.2139/SSRN.1762951","url":null,"abstract":"The Eastern District of North Carolina erred in its conclusions that the creditors in Shearin and Harrelson did not fall within the scope of the exception described in sections 362(b)(3) and 546(b) of the Bankruptcy Code. The term “interest in property,” as used in section 362(b)(3), is broader than the term “lien.” The Leonard and Small Courts spent much time dissecting the terms of Chapter 44A and analyzing whether a lien is created instantly upon delivery or if it is only created upon filing and perfecting a lien. Most courts hold that once entitlement to a lien has been established, statutory requirements concerning perfection are to be liberally construed in favor of the lien claimant. When drafting the Bankruptcy Code and creating the exception to the automatic stay under sections 362(b)(3) and 546(b) Congress did not use the term “lien.” Rather, Congress elected to use the word “interest in property.” Both cases should turn on the definition of “interest in property” and not the “lien” terminology used by both the Leonard and Small courts. This is because Congress is not shy in its use of the word “lien” throughout the Bankruptcy Code. As a matter of statutory construction, when Congress “includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1998 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128244848","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Dan Immergluck, F. Alexander, Katie Balthrop, Philip Schaeffing, J. Clark
The context for foreclosure prevention and mitigation hinges critically upon whether a state operates in a judicial or nonjudicial regime. Nonjudicial foreclosure regimes allow mortgage lenders to foreclose on homes without substantial court supervision. In these states, the time from the borrower receiving an initial notice of foreclosure to the date of the completed foreclosure sale tends to be substantially shorter than in states with judicial foreclosure systems. Moreover, nonjudicial foreclosure regimes tend to offer borrowers fewer legal protections and make it more difficult for homeowners to slow or intervene in the routine foreclosure process. For example, many of the more well-known efforts to reduce foreclosures, including mediation programs in which lenders must meet with borrowers in the presence of a mediator, have occurred in judicial states. This report examines legislation affecting the mortgage foreclosure process adopted in states with nonjudicial foreclosure processes from January 2005 through May of 2010. Little is known about how policymakers in nonjudicial states have responded to the foreclosure crisis. In general, borrowers in nonjudicial states are at a significant disadvantage when compared to those in judicial states and, short of changing to a judicial foreclosure regime, efforts to reduce foreclosures run up against a different set of constraints and challenges. The primary purpose of this report is to understand how policymakers in nonjudicial states have attempted to respond in terms of legislative modifications to the foreclosure process in the face of the national foreclosure crisis. We do this by analyzing state legislative activity during the study period. In particular we identified all legislation enacted during this period that concerns the regulation and administration of the default and foreclosure process for single-family residential mortgages. We quantify and classify this legislation, and identify states that were relatively active in this area during the study period. We then focus on eight of the most active states, describing some of the key provisions adopted in these states.
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