Volume 32 Number 4 -- June 1999

TABLE OF CONTENTS

SYMPOSIA

SYMPOSIUM ON BANKRUPTCY REFORM

INTRODUCTION

by Dan Schechter

CAN SHAME, GUILT, OR STIGMA BE TAUGHT? WHY CREDIT-FOCUSED DEBTOR EDUCATION MAY NOT WORK

by A. Mechele Dickerson

Professor A. Mechele Dickerson discusses recent bankruptcy reforms that would require debtors to participate in debtor education programs that aim to prevent debtors from overextending themselves in the future. The author argues that these reforms hardly suit debtors who need adequate health insurance or a better paying job, for example, instead of a budgeting lesson. Professor Dickerson concludes that while debtor education programs might provide certain benefits, they will help decrease bankruptcy filings only if Congress creates programs that teach potential and actual debtors how to prevent a financial crisis before it occurs.

SHOULD DEBTORS BE FORCED INTO CHAPTER 13?

by Eric A. Posner

In this Article, Professor Eric A. Posner describes section 102 of House Bill 3150 in detail. This section of House Bill 3150 amends section 707(b) of the Bankruptcy Code by requiring bankruptcy courts to dismiss cases in which the debtor has an income above the national median income and has a high enough expected income over five years to enable the debtor to pay off a relatively small portion of his or her unsecured, nonpriority debt. Professor Posner speculates about House Bill 3150’s potential effects on bankruptcy filings and evaluates section 102 in light of the goals of bankruptcy law. The author then concludes that section 102 may reduce the cost of credit without reducing the amount of credit insurance available to debtors.

COMMENTS ON THE PENDING BANKRUPTCY REFORM

by Dan Schechter

Professor Dan Schechter critiques bankruptcy legislation pending before Congress and suggests legislative compromises to aid the passage and implementation of the proposed reforms. Professor Schechter proposes alternatives to the current legislation and changes to the Bankruptcy Code, and suggests redrafting certain portions of the Conference Report, the unfinished bankruptcy reforms of the 105th Congress. Professor Schechter argues that while some sort of bankruptcy reform is inevitable, these legislative compromises will help avoid a presidential veto and will facilitate implementation of the pending bankruptcy reforms by practitioners and the courts.

“WHAT DO YOU MEAN, I FILED BANKRUPTCY?” – OR HOW THE LAW ALLOWS A PERFECT STRANGER TO PURCHASE AN AUTOMATIC STAY IN YOUR NAME

by Maureen A. Tighe and Emily Rosenblum

United States Trustee Maureen Tighe and Emily Rosenblum examine the crime of identity theft and how it is perpetrated in conjunction with bankruptcy filings. Perpetrators of identity theft assume their victim’s identity, exhaust and ruin their credit, and then turn to the bankruptcy court to further elude creditors by filing bankruptcy in their victims’ names. Perpetrators have also concocted elaborate foreclosure or eviction “ assistance” scams, filing bankruptcy in the name of their “client” in order to receive the benefit of an automatic stay -- without informing the victim of the filing. In both cases, the perpetrators of identity theft take advantage of the bankruptcy court’s inability to verify a filer’s identity. The authors propose deterrents to these scams, scams that have cost victims their credit and have enabled perpetrators to use the bankruptcy court as an unwitting aider and abettor of identity theft.

GENEROSITY IN BANKRUPTCY: THE NEW PLACE OF CHARITABLE CONTRIBUTIONS IN FRAUDULENT CONVEYANCE LAW

by Steven Walt

In his Article, Professor Steven Walt discusses the statutory shortcomings of Congress’s recent amendment to the Bankruptcy Code, the Religious Liberty and Charitable Donation Protection Act. He explains how the amendment, in its attempt to alter fraudulent conveyance law, fails to effectively protect the transfers intended to be protected. He also discusses how the new statutory language creates uncertainty in the application of the amended provisions. Professor Walt concludes that in light of these shortcomings, the amendment cannot be deemed a drafting success.

THE MALPRACTICE OF HEALTH CARE BANKRUPTCY REFORM

by Pamela Kohlman Webster

Professor Pamela Kohlman Webster discusses recent and future foreseeable efforts to affect health care reform through amendments to the Bankruptcy Code and to affect health care related litigation pending under the Code. Recent such efforts have had the effect of destroying the textual benefit of the Bankruptcy Code as unified legislation. The author argues that such efforts are unwise because the proposed legislation is poorly drafted and unfair to bankruptcy trustees and certain creditors. Rather than amending the Bankruptcy Code, the author suggests requiring more regulators who have the necessary expertise and ability to spread the costs of health care insolvencies.

FINAL REPORT OF THE BANKRUPTCY FORECLOSURE SCAM TASK FORCE

ELECTION LAW AS ITS OWN FIELD OF STUDY

INTRODUCTION

by Richard L. Hasen

ELECTION LAW AS A FIELD: A POLITICAL SCIENTIST’S PERSPECTIVE

by Bruce E. Cain

This Article examines the growing field of election law from its inception to its current development today. Professor Bruce E. Cain discusses the different approaches taken by various experts in the field and addresses the advantages this area can offer society. Specifically, the author explores the differences between voting/representation cases and corruption/political association cases. Professor Cain also probes into some glaring problems in election law, from racial gerrymandering to campaign finance corruption, and concludes that this field might help improve political reform efforts.

THE HAZARDS OF LEGAL FINE TUNING: CONFRONTING THE FREE WILL PROBLEM IN ELECTION LAW SCHOLARSHIP

by Michael A. Fitts

Professor Michael A. Fitts discusses recent proposals by legal scholars to substantially reform the electoral process. While supportive of these academic endeavors, Professor Fitts argues that proponents should consider the inherent difficulty in predicting the ultimate consequences of changing the legal rules that govern the electoral process. More importantly, the author suggests that scholars need to appreciate the difficulty in resolving all the normative controversies that any fine tuning of the electoral system raises. Professor Fitts concludes that given the diversity of views on democratic theory, some of these conflicts might need to be left legally unsettled.

STOP ME BEFORE I QUANTIFY AGAIN: THE ROLE OF POLITICAL SCIENCE IN THE STUDY OF ELECTION LAW

by James A. Gardner

In this Article, Professor James A. Gardner discusses the role of political science in the study of election law and examines some of the pitfalls associated with reliance on political science knowledge. Professor Gardner argues that political science is useful to law when it is used to determine the existence of factual circumstances or conditions that satisfy or violate legally specified norms. The author further argues that political science is of far less utility when political science itself, rather than the law, supplies the norm to be assessed. As a result, legal actors should approach political science research with skepticism and with an understanding of its inherent limitations.

NOT BY “ELECTION LAW” ALONE

by Samuel Issacharoff & Richard H. Pildes

In this Article, Professors Samuel Issacharoff and Richard H. Pildes examine the historical development of the law of the political process. To some, election law connotes a narrow field dominated by microscopic regulatory details. But the law governing the political process actually embodies democratic ideals that reflect the meaning and assumptions of constitutional law that first led the Warren Court into the domain of politics. Recognizing that democracy is an unstable relationship between governing majorities and vulnerable minorities, the authors argue in favor of a critical approach to the electoral arena that focuses not on the regulatory arcana of elections but rather on democratic selfgovernance principles. The authors suggest that this approach will facilitate connections between legal regulation of the political process and the next frontiers of democracy.

CONSTITUTIONAL LAW, THE POLITICAL PROCESS, AND THE BONDAGE OF DISCIPLINE

by Pamela S. Karlan

Professor Pamela S. Karlan discusses the differences between two major casebooks, the leading casebook in constitutional law and the leading casebook in election law, and compares how each book has treated questions about political participation and structure. While the leading constitutional law casebook uses the core voting rights cases centrifugally to show that such cases spin outward into other aspects of constitutional law, the leading election law casebook uses them centripetally to show the complex interaction between democratic politics and the formal institutions of the state. Professor Karlan urges that the pro- fusion of scholarship and teaching about the legal regulation of the political process should not lead constitutional law scholars and scholars of the political process to think that each is irrelevant to the other.

ELECTION LAW AS A SUBJECT -- A SUBJECTIVE ACCOUNT

by Daniel H. Lowenstein

Professor Daniel H. Lowenstein asks why election law has arisen as an academic field over the past twenty years and why it contains what it contains. The author posits that the answers to both questions lie in the rapid growth of law affecting elections and shifting interests of legal scholars. To further aid in answering these questions, Professor Lowenstein chronicles his own interest in the field of election law, from working as a staff attorney for the Secretary of State of California, Jerry Brown, to chairman of the Fair Political Practices Commission and election law professor. The author concludes that his interest in the field was largely the product of accident.

FROM RIGHTS TO ARRANGEMENTS

by Daniel R. Ortiz

Professor Daniel R. Ortiz examines campaign finance regulation as it has developed under the discipline of election law. The development of election law as a discipline has broadened our understanding of how electoral rules affect individual interests, and it has led to a more pragmatic and structural view of politics as a matter of institutional arrangements. This new framework highlights important concerns that the traditional free speech approach to campaign finance regulation overlooks. This Article suggests that even though progress will be slow, the courts will eventually move from seeing campaign finance regulation as an awkward step-child of the First Amendment to seeing it as implicating the same kinds of individual and structural concerns discussed in other election law cases.

AND FOR THE STUDENT? THE SEVEN STRIKING STRENGTHS OF “BALLOTS, BUCKS, MAPS & THE LAW”

by Roy A. Schotland

Professor Roy A. Schotland discusses what Election Law as an academic course offers students. First, it challenges preconceptions, such as whether the Constitution is “color-blind,” and whether “soft money” can be banned effectively. Election Law also challenges cynicism about campaign finance reform with the advent of disclosure requirements, proposals to encourage small contributors, and other similar creative solutions. Election Law presents acute problems of process and remedies, specifically in the context of redistricting. Finally, Professor Schotland notes that Election Law empowers students to change the “establishment” -- the system in which the powerful, entrenched, and wealthy groups and individuals enjoy a distinct competitive advantage over challengers.

THE CORPORATION IN ELECTION LAW

by Adam Winkler

Professor Adam Winkler discusses the corporation in the context of election law. He notes that in its long history of regulating corporate political participation, election law has relied on several competing ideas of what the corporation is and what political values the corporation serves. The author identifies the various ways in which election law has conceptualized the corporation and uncovers the significant dilemmas posed by each. Professor Winkler argues that as a result of these conflicting views, electoral regulation of the corporation is incoherent and mostly ineffective in achieving any of its goals.

NOTE AND COMMENTS

TEACHING THE FEDERAL CIRCUIT NEW TRICKS: UPDATING THE LAW OF JOINT INVENTORSHIP IN PATENTS

by Tigran Guledjian

Amendments in 1984 to the Patent Act significantly changed the joint inventorship status of co-inventors and allowed the inclusion of all participating inventors on a patent, without regard to the contribution of each. Prior to the amendments, co-inventors must have worked together on virtually every aspect of an invention in order to be named joint inventors. Once afforded joint inventorship status, co-inventors share an undivided interest in the ownership of the patent. This Comment argues that the federal courts, including the Federal Circuit, have erroneously continued to apply pre-1984 concepts of joint ownership to post-1984 cases of joint inventorship. The author posits three recommendations to update the law of joint inventorship and concludes that only fractionating the patent into its claims achieves true equity in the ownership rights of co-inventors.

CLINTON’S LITTLE WHITE LIES: THE MATERIALITY REQUIREMENT FOR PERJURY IN CIVIL DISCOVERY

by Alan Heinrich

Not all lies told under oath in a judicial proceeding constitute perjury. Perjury requires a “material” false statement. This Comment explores the standard of materiality for lies told during the course of civil discovery. The author rejects, on both statutory and policy grounds, a broad test for materiality in this context that equates materiality with discoverability. Instead, a narrower test should apply: the false statement should concern a matter relevant to, and admissible in, the underlying suit. Under this standard, President Clinton’s testimony concerning Monica Lewinsky was not material to Paula Jones’s sexual harassment. Finally, the author proposes that civil perjury could be effectively decriminalized.

COUNTY OF SACRAMENTO V. LEWIS: A “CONSCIENCE-SHOCKING” DECISION REGARDING OFFICER LIABILITY IN HIGH-SPEED POLICE PURSUITS

by Erica L. Reilley

In May of 1998, the United States Supreme Court ruled that plaintiffs injured in high-speed police pursuits could not recover against the officer absent a showing that the officer’s conduct “shocked the conscience.” This Note critically analyzes the Court’s decision in light of the various split circuit decisions. The author concludes that the Court’s ruling leaves injured plaintiffs with essentially no means of recourse and suggests that the more appropriate standard to be used in determining officer liability is the well-recognized and widely-used “reckless disregard or deliberate indifference” standard.

DOUBLE CLICK ON THIS: KEEPING PACE WITH ON-LINE MARKET MANIPULATION

by Nancy Toross

The emergence of the Internet as a new and popular medium of communication promises to change the face of the securities markets. Increasingly, investors are routinely making decisions based on, or influenced by, information obtained through on-line financial newsletters, bulletin boards, chat rooms, and unsolicited commercial e-mail. In essence, the classic market manipulation technique -- the boiler room -- has been replaced. This Comment explores how market manipulators are using the Internet to manipulate stock prices, especially those of micro cap companies. Moreover, this Comment provides an overview of the Securities and Exchange Commission’s present approach to fighting on-line market manipulation and fraud -- applying established law to a revolutionary medium. The author posits that the agency must bolster surveillance policing and enforcement efforts in order to keep pace with securities law violations being perpetrated through use of the Internet.