One Means One: The “Per Plan” Approach to Section 1129(a)(10)

Negotiating a plan of reorganization is the most consequential aspect of a Chapter 11 bankruptcy process for both debtors and creditors. The balance of power in that negotiation process is principally defined by the requirements for voting and plan approval which are laid out in section 1129(a) of the Bankruptcy Code. Courts are divided as to whether, in a case where a class of claims is proposed to be impaired under a joint, multidebtor plan, section 1129(a)(10) of the Bankruptcy Code re-quires acceptance from at least one impaired class of claims of any one debtor (the “per plan” approach) or, alternatively, acceptance from one impaired class of claims of each debtor (the “per debtor” approach). In this Contribution, Elaine Andersen ('21) argues that the “per plan” approach better comports with the text, context, and purpose of the section.

Voluntary Intoxication Defense to Contracting: Is Summary Judgment Appropriate in the Casino Context?

In this Contribution, Emily Kaplan ('21) addresses the propriety of summary judgment when a casino patron raises a voluntary intoxication defense to contracting. Courts around the country recognize the voluntary intoxication defense in a casino context, which requires the casino patron to prove his and the casino employees’ states of mind. In general, summary judgment is typically not appropriate in cases involving state of mind because whether a party had the requisite state of mind will be a question of fact. This has even more weight in the voluntary intoxication context, where a court will rarely be able to decide as a matter of law whether a casino patron was sufficiently intoxicated to render the patron unable to understand the nature and consequences of his action, or whether the casino knew or had reason to know of that intoxication. Both determinations are required to prevail on a voluntary intoxication defense. Moreover, it would be a poor policy choice to allow casinos to profit off of their overly intoxicated patrons. This article does not address the propriety of allowing a voluntary intoxication defense in the casino context, but as long as the defense is recognized, it cannot be merely illusory; patrons must have the ability to prevail, at least to trial. Therefore, casinos should generally not be able to use summary judgment as a tool to profit off of intoxicated casino patrons.

Nonce So Fast: Software “Structure” and Algorithmic Specificity in Computer-Implemented Means-plus-Function Patent Claims

Despite decades of Federal Circuit precedent, a clear definiteness rubric for functional patent claims covering software inventions remains evasive. Questions persist on what constitutes sufficient structure to absolve these claims of means-plus-function treatment. The level of algorithmic specificity required to ensure definiteness for claims that are drafted in means-plus-function form is similarly abstruse. In this Contribution, Zachary Hadd (’21) argues that even software-specific “structure” is best interpreted under the means-plus-function framework and that according definiteness to anything less than step-by-step algorithmic de-tail is not only unjustified, but ultimately inconsistent with Federal Circuit precedent.

Dismantling Crimmigration: Why No One Should Be Deported for a “Crime Involving Moral Turpitude”

Crimmigration is the intersection of immigration law and criminal law. At this intersection, officials are widening the net of deportable offenses at an alarming rate to make immigrants more susceptible to removal. The “crime involving moral turpitude” provision of the Immigration and Nationality Act has been one means by which officials have arbitrarily expanded the reasons why a person may be deported out of the United States. But is the moral turpitude provision in 8 U.S.C. § 1227(a)(2)(A)(i) of the Immigration and Nationality Act—used to justify deporting “criminal aliens,” including lawful permanent residents—void for vagueness pursuant to the Fifth Amendment? In this Contribution, Kameron Johnston (’21) argues that the recent Supreme Court decisions Johnson v. United States and Sessions v. Dimaya require that the exacting vagueness test used in criminal contexts be applied to immigration law as well. Finally, this Contribution demonstrates that the moral turpitude provision has provoked unpredictability and judicial confusion that simply cannot be reconciled with the fair notice and enforcement standards that due process demands.

How the Heeding Presumption Protects (And Does Not Hurt) Consumers in Strict Liability Failure-to-Warn Suits

Failure-to-warn claims in products liability suits face special problems in proving causation. Many courts have responded by establishing a rebuttable presumption that a plaintiff would have read and heeded an adequate warning if it had been provided. In this Contribution, Jessica Christy (’21) considers arguments that this “heeding presumption” ultimately undermines the well-being of consumers, and concludes that such concerns are best addressed by rigorously defining “warning defect,” not by abolishing the presumption of causation.

Fear of Needles or Guilty Conscience? The Fourth Amendment and the Use of BAC Test Refusal Evidence in DUI Prosecutions

When a motorist is arrested on suspicion of intoxicated driving, the government cannot compel him to submit to a blood draw without a warrant or warrant exception, nor can it make his refusal to submit to a blood draw a crime. But can the government use the refusal as evidence of guilt in a subsequent DUI prosecution on the basis of an implied consent statute? In this Contribution, Max Baumbach (’21) argues that the Fourth Amendment prohibits the use of blood test refusal evidence in a DUI prosecution where the test itself would have been unlawful to conduct in the first instance.

The Fifth Amendment: No Safe Harbor for First Amendment Retaliation

This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.

Two Swords for Bankruptcy’s Gordian Knot: Making Sense of Section 365

Observers generally agree that the assumption of executory contracts by debtors in possession in Chapter 11 proceedings promotes the purposes of the Bankruptcy Code and accords with Congress’ intent. Yet courts have been riven by the question of whether the plain text of section 365 allows the practice. This Contribution argues that courts forbidding assumption of executory contracts by debtors in possession have misdirected the focus of their textual analysis. Close examination of an overlooked phrase within section 365 and of the interactions between sections 365 and 1107 provides two independent textual bases for courts to read the Code in keeping with congressional intent.

Does the Supreme Court’s Decision in Carpenter v. United States Implicate the Government’s Use of Pole Cameras?

Does the Supreme Court’s decision in Carpenter v. United States constrain the government’s warrantless use of pole cameras to surveil people it suspects are engaging in criminal activity? In this contribution, Jack Derewicz (’21) argues that the Carpenter opinion does not implicate this particular investigatory technique because pole cameras do not retroactively collect the type of information that, when aggregated, present the government with information it could not have otherwise obtained.

Maintaining the Narrow Scope of the Bona Fide Occupational Qualification: Rejecting Gender Discrimination in Bartender Hiring

This Contribution examines whether a bar can discriminate on the basis of gender in its bartender hiring practices. Matthew Peterson (’21) argues that Title VII’s bona fide occupational qualification (“BFOQ”) exception should not shield bars from gender discrimination liability. The text and purpose of Title VII command a narrow interpretation of the BFOQ exception, and a bar catering to preferences for female bartenders is precisely the type of undesirable hiring practice that Title VII seeks to prohibit. The “essence” of a bar is making and distributing drinks, and the completion of these tasks does not depend upon the gender of a bartender. Courts should not permit bars to justify such discrimination with claims of supporting “authentic entertainment.” Unlike an actor or dancer, whose core job function is performance, a bartender’s primary responsibility is providing service.