Bankruptcy Revision: Procedure and Process

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Diversification and the Taxation of Capital Gains and Losses

Current U.S. law nets the total portfolio of realized capital gains and losses to compute capital gains taxes. Prior research, however, typically ignores the implication of this provision, i.e., the marginal tax rate for a specific gain or loss depends on the taxpayer's total portfolio of realized gains and losses. We find that these nettings introduce complexity into the relation between share values and capital gains taxes, creating an incentive to diversify. For firms with stock returns that are positively (negatively) correlated with those of the overall market, share values generally are decreasing (increasing) in the capital gains tax rate.

Brief of Reporter and Advisers to Restatement (Third) Restitution and Unjust Enrichment, as Amici Curiae in Support of Respondent

Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set aside transactions tainted by wrongdoing that do not involve any “injury” to plaintiff that would qualify as an “injury in fact” under First American’s apparent definition of that term. Our brief argues that just as a plaintiff’s standing to sue for damages differs from her standing to sue for an injunction, her standing to sue for restitution must be different from either. The Court must base a plaintiff’s standing to sue for each remedy or form of relief on the nature of that relief and on the substantive-law premises that underlie the plaintiff’s cause of action. The Court should not, perhaps inadvertently, bar from federal court plaintiffs suing for restitution of a defendant’s unjust enrichment. Such a development would be particularly unfortunate in light of the 2011 publication of the American Law Institute’s Restatement (Third) of Restitution and Unjust Enrichment

Brief of Restitution and Remedies Scholars as Amici Curiae in Support of Respondent: \u3cem\u3eSpokeo v. Robins\u3c/em\u3e

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof of pecuniary damages or actual harm were well known before the American founding. Indeed the First Congress enacted at least one statutory minimum recovery. Congress continues to need the ability to legislate statutory minimum damages as remedies to protect consumers and other plaintiffs. This brief argues that the Court should not erode Congress’s efforts by denying standing to those plaintiffs. The search for harm beyond defendants’ violations of plaintiffs’ legally protected interests arose where defendants’ alleged public-law violations were not individualized, more generally where the laws at issue did not actually apply to plaintiffs. If, on the other hand, a defendant actually invades a plaintiff’s individualized statutory private-law “legally protected interest,” then that violation satisfies the standing prerequisite of “injury in fact.” The Court has never required a plaintiff to adduce an additional or consequential harm beyond a violation. This brief also warns the Court that accepting Spokeo’s standing argument will inadvertently lock the federal courthouse door to much of the law of restitution. Restitution is based on defendant’s gain, not plaintiff’s loss. Many restitution defendants made improper profits by violating plaintiffs’ legal rights without causing plaintiffs any pecuniary loss or harm. The brief reviews numerous long-standing restitution claims that do not involve any “injury in fact” under Spokeo’s apparent definition. These claims to recover a wrongdoer’s improper profits or to set aside a transaction tainted by a wrongdoer’s conflict of interest are crucial parts of our restitution jurisprudence. This brief calls on the Court to stand up for restitution

Scholars’ Supreme Court Amicus Brief in Support of Neither Party: \u3cem\u3ePetrella v. Metro-Goldwyn-Mayer\u3c/em\u3e

The appeal to the Supreme Court in Petrella v. Metro-Goldwyn-Mayer deals with the equitable defense of plaintiff’s laches before suing for copyright infringement. Laches is unreasonable and prejudicial delay. MGM allegedly violated plaintiff’s copyright repeatedly over a period of many years; the statute of limitations has not run on the most recent violations. Plaintiff argues that laches should never apply to a cause of action with a statute of limitations. Defendant argues that laches should bar all relief if defendant relied on plaintiff’s failure to sue earlier, without having to match defendant’s reliance to the remedies plaintiff seeks. This scholars’ amicus brief, which supports neither party, argues against all-or-nothing solutions. In particular, the brief says that laches should be available as needed to protect defendant’s reliance, but that defendant should have to show how particular remedies would unfairly override particular reliance interests. Plaintiff also argues that laches should be unavailable because it would be a ground for refusing an injunction that was not mentioned in eBay v. MercExchange. The scholars’ brief takes this occasion to point out several unintended untoward consequences of the four-part test in eBay

Free Press -- Fair Trial: Review of Silence Orders

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