In Memoriam

(Excerpt) The editors of the St. John’s Law Review respectfully dedicate this issue to Professor Olivas

High Anxiety: Racism, the Law, and Legal Education

Conspicuously absent from the United States’ ongoing discourse about its racist history is a more honest discussion about the individual and personal stressors that are evoked in people when they talk about racism. What if they got it wrong? The fear of being cancelled - the public shaming for remarks that are deemed racist - has had a chilling effect on having meaningful conversations about racism. What lost opportunities! This paper moves this discussion into the law school context. How might law schools rethink their law school curricula to more accurately represent the role systemic racism has played in shaping the law while still respecting community members’ different perspectives about racism pedagogy? As in our broader society, law school community members’ fear of “getting it wrong” and possibly being cancelled has had a chilling effect on having candid conversations about racism within legal education and the law. In this discussion, the author prescribes one of the first dispute system frameworks for implementing pedagogy on racism in law school, highlighting the different racial stressors ignited in doctrinal, clinical, skills, and experiential learning classes. The dispute resolution system is built on a restorative justice framework and draws on an interdisciplinary understanding of the physiology and psychology of racial stressors. Building on that knowledge, the paper explains how racial stressors, if constructively addressed, can actually enhance learning about racism and better prepare law students for real-world practice

A Business Doing Pleasure: Combating Sex Trafficking by Decriminalizing Sex Work

(Excerpt) On the night police officers pounded on Yang Song’s door, she ran to the balcony of her fourth-floor apartment, which overlooks 40th Road in Flushing, Queens. Four years earlier, she had arrived at John F. Kennedy Airport with a dream of opening a restaurant. After a waitressing job failed, as well as a short-lived Chinese fast-food venture, she took a massage therapy course. There, she learned about a “lucrative opportunity” on 40th Road. Flushing’s underground sex economy has been notorious for years. In fact, massage parlor arrests across the United States consistently lead back to addresses in Flushing. Because massage parlors in Flushing disappear and reappear regularly, and there is confusion about which ones are licensed, the NYPD’s attempts to crack down on these businesses have been largely unsuccessful. But that does not stop them from trying. On the night that police officers pounded on her door, Yang Song had already circled through New York’s Human Trafficking Intervention Courts (HTICs) multiple times. The HTICs seek to provide sex workers and trafficking victims with a way out of the sex trade by mandating services such as therapy in lieu of jail time. In fact, Yang Song’s fifth court-mandated session with Restore NYC, a nonprofit organization that helps foreign-born victims of sex trafficking, was just four days away. Months earlier, Yang Song disclosed to her lawyer that a police officer had put a gun to her head and forced her to perform oral sex. Whether any of this went through Yang Song’s mind on the night the police pounded on her door is unknown. And whether Yang Song jumped, fell, or was pushed from the balcony when her body plunged four stories down to 40th Road is also unknown. She died the next morning. Was Yang Song “trafficked” into her massage parlor position, or was she there voluntarily? This is also a question without a clear answer. The concept of sex trafficking captures the imaginations of Americans, but questions of who qualifies as a victim and who does not have many answers—and the answers depend upon a number of circumstances, including whom you ask

When Deciding Whether to Transfer Venue, Bankruptcy Courts will Consider Their Discretion to Retain a Case, as well as the Interests of Justice and Convenience of the Parties

(Excerpt) When a debtor decides to file a petition for bankruptcy, one decision to make is in what court, or what jurisdiction to file. However, the debtor’s choice of where to file is not always indisputable. Once a case is filed in a particular court, any “party in interest” may bring a motion seeking to change the venue of the case to an alternate court. Additionally, a court, on its own motion, may transfer a case to an alternate venue. The three statutory provisions that govern transfers of venue are Bankruptcy Rule 1014 (“Rule 1014”), 28 U.S.C. § 1408 (“Section 1408”), and 28 U.S.C. § 1412 (the substantive equivalent of Rule 1014). This article primarily discusses Rule 1014, however, it is important to note that Section 1408 provides the criteria for what constitutes proper venue. These considerations include the debtors’ and creditors’ domicile, residence, principal place of business, and principal assets. However, the statutory interpretation of Rule 1014(a)(2) is what will be focused on in this article. Rule 1014(a)(2) states in pertinent part, “[i]f a petition is filed in an improper district, the court, on timely motion of a party in interest or on its own motion . . . may dismiss the case or transfer it to any other district if the court determines that transfer is in the interest of justice or convenience of the parties.” The language of this provision poses two issues: (1) What discretion does a bankruptcy court have to retain a case filed in an improper venue; and (2) what constitutes in the interest of justice and convenience to the parties? The majority of courts have held that a bankruptcy court does not have discretion to retain jurisdiction over an improperly venued case upon a timely-filed objection. Furthermore, when determining what constitutes the interest of justice and convenience of the parties under Rule 1014, courts will consider several practical and equitable factors. This article explores how courts have interpreted Rule 1014 in a twofold approach. Part I discusses whether a court has the discretion to retain a case even if it was filed in the improper venue. Part II examines what constitutes “in the interest of justice and convenience of the parties” under Rule 1014

One Test to Rule Them All: Retiring the Dual Standard for Fictional Character Copyrightability in the Ninth Circuit

(Excerpt) From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value in asserting ownership over fictional characters. Since characters, like stories, are products of ideas, they are considered intangible property and are thus governed by intellectual property law, specifically copyright. Given the potential for financial gain, there has been much dispute over the copyrightability of fictional characters. While it is relatively straightforward to assert ownership over a film, television show, or novel under copyright law, it is more difficult to assert ownership over a character. Various circuit courts have taken different approaches to defining the scope of copyright protection for fictional characters. For example, the Ninth and Second Circuits, two of the most influential circuits for copyright law, employ slightly different approaches

Copyright’s Capacity Gap

Most areas of law require that individuals meet a certain threshold of capacity before their decisions — e.g., to marry, to enter into a contract, or to execute an estate plan — are given legal effect. Copyright law, by contrast, gives legal effect to creative decisions by granting the decisionmaker many decades of exclusive rights so long as they are a human being and have demonstrated a “creative spark.” This Article examines the overlooked consequences of this gap in capacity standards between copyright and other areas of law. It shows that this gap has produced numerous opportunities for vulnerable creators to be exploited by more powerful individuals — often individuals who have been entrusted with their care. These creators can produce valuable property interests through the copyright system, but they may lack the legal ability to make decisions about whether, when, where, and how to commercially exploit those interests. Copyright law expresses the key message that creative labor by legally incapacitated individuals is important and valuable, but it largely leaves these individuals at the mercy of a legal system that is often highly dismissive of their dignity and autonomy. This Article surveys contemporary and historical examples of copyright’s capacity gap, and it examines potential ways of closing this gap for the benefit of vulnerable creators

Hats for Sale: Efficiency, Economics, and Process Integrity

(Excerpt) What are the ethical considerations for a mediator when a neutral is asked to be both the mediator and arbitrator on the same case? Some parties and their lawyers opt to select one neutral to serve as both the mediator and arbitrator on the same case, believing it will be a more efficient and cost-effective way to resolve their dispute. After all, the mediator already knows the facts of the case. Why waste time and money getting another neutral up to speed? This design choice, however, may collide with the mediator ethical mandates of party self-determination, neutral impartiality, confidentiality, and process integrity, and compromise the benefits of mediation. What makes this neutral selection even more challenging is that there is no consensus about the best way to ethically proceed. This column highlights these issues

Unaccompanied Children and the Need for Legal Representation in Immigration Proceedings

(Excerpt) An unaccompanied child is defined as someone who enters the United States under the age of eighteen, without lawful status, and without an accompanying parent or legal guardian. Despite the term’s implication, many children do not enter the country alone but are either separated from their family members at the border or left by smugglers or other migrants near the border. The number of unaccompanied minors plunged in early 2020 due to border closures and restrictions amid the COVID-19 pandemic; however, a recent surge has led to a strain on government resources and a backlog of cases in immigration courts. Each year, thousands of children travel to the southern border from the Northern Triangle region of Central America. In fiscal year 2021, 47% of children were from Guatemala, 32% were from Honduras, and 13% were from El Salvador. Many children are escaping deadly gang violence, poverty, devastating hurricanes, and the pandemic. Most others are coming from Mexico, where violence continues to escalate amid the government’s war against drug cartels. Despite the dangerous journey, children are fleeing to the U.S. border to either be reunited with family members already here or escape dangerous conditions in their home countries. Unfortunately, once children arrive at the U.S. border, they continue to face difficult challenges including navigating a complex immigration system to stay in the United States, often by themselves

The Intersection of the Bankruptcy Courts and FERC

(Excerpt) In the past, the bankruptcy courts and the Federal Energy Regulatory Commission (“FERC”) have been involved in a power struggle with one another. Congress has granted bankruptcy courts exclusive authority to allow debtors to reject executory contracts in chapter 11 reorganization cases. Additionally, Congress has granted FERC authority to govern over utility entities’ filed-rates, which are sometimes contained in executory contracts. It is in this intersection, regarding executory contracts containing filed-rates, where the power struggle between the two exists. An executory contract is a contract where both parties still have material obligations to perform under the contract. Filed-rates may be contained in executory contracts. Under the filed-rate doctrine, a federally regulated seller of natural gas, oil, and energy is prohibited from charging rates higher than those filed with FERC. FERC is an independent agency within the Department of Energy that regulates the interstate transmission of electricity, natural gas, and oil. Most recently, the U.S. Court of Appeals for the Fifth Circuit held that FERC cannot interfere with the bankruptcy court’s power to permit the rejection of executory contracts. While the Fifth Circuit’s approach to this issue dominates, one jurisdiction has held that during a chapter 11 case, debtors additionally need FERC’s approval to reject an executory contract containing a filed-rate. This article analyzes whether the bankruptcy courts and FERC share parallel jurisdiction to permit rejection of a debtor’s executory contract containing a filed-rate. Part I explains Congress’s delegation of power between the bankruptcy courts and FERC regarding executory contracts and the filed-rate doctrine, and explores the intersection between the courts and FERC. Part II examines the competing views of the issue and explains the public interest considerations concerning the intersection of the bankruptcy courts and FERC

A Claims Agent Can Only Profit from the Fees the Clerk of Court Can Charge

(Excerpt) In the Southern District of New York, the retention of claims agents is governed by the judicial procedure set forth in section 156(c) of title 28 of the United States Code, for cases under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) that involve 250 or more creditors and equity holders. When a claims agent is retained under section 156(c), the claims agent is acting in the same capacity as the clerk and the services are “limited in scope to those duties that would be performed by a Clerk of Court with respect to providing notice and processing claims (such as maintaining a claims register).” In a chapter 11 case, a clerk may only charge fees pursuant 28 U.S.C. § 1930 or obtain fees from the debtor’s estate. In In re Madison Square Boys and Girls Club, Inc., the Southern District of New York held that a claims agent retained under section 156(c) cannot have for-profit agreements, with third parties, for fees that a clerk of the court could not charge. The court determined that when a claims agent is retained under section 156(c), the agent is subject to the same constraints as the clerk. Ultimately, a claims agent cannot charge fees that a clerk cannot charge and perform activities the clerk cannot perform. This article examines the constraints on claims agents that are retained under section 156(c) and the fees a claims agent can charge. Part I focuses on the differentiation between claims agents that are retained under section 156(c) and those retained pursuant to 327(a) of the Bankruptcy Code. Part II examines the fees that a claims agent retained under section 156(c) is allowed charge