ItemWhy on Earth Do People Use Bitcoin?(Texas Tech Business & Bankruptcy Law Journal, 2014) Christopher, Catherine MartinBitcoin is making near-daily headlines, whether about its volatile exchange rate, the regulatory issues it raises, or its criminal associations. As the public becomes familiar with the idea of virtual currencies, many people struggle to understand why users exchange government-backed (“real”) currencies for Bitcoin. This article explores the appeal and danger of investing in Bitcoin for speculative gain, for moral purposes, for its spending power, and for its criminal applications. ItemThe Value of a Per Se Rule Against Enforcing Noncompetition Agreements(Texas Tech Business & Bankruptcy Law Journal, 2014) Pierce, MichaelThis articles discusses noncompetition agreements and how courts have traditionally enforced them based on their reasonableness. The author briefly looks at the current reasonableness doctrine, severance, the common law nature of enforcing noncompetitive agreements, and an analysis of economics concerns. The author suggests that it’s time to do away with noncompetition agreements altogether. ItemThe Intersection of Tax and Bankruptcy: The McCoy Rule(Texas Tech Business & Bankruptcy Law Journal, 2015) Ferguson, John P.The ability to discharge personal income tax liability has traditionally been allowed if the filer has filed a valid tax return and tried to follow the tax laws in “good faith.” In 2008 courts started changing and eradicating “good faith” due to amendments to 11 U.S.C. § 523 in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). This article discusses the McCoy case and how it relates to “good faith” and suggests that discharge of tax liability may be broadened using equity. ItemThe Impact of Your Partner’s Bankruptcy on Your Joint Venture(Texas Tech Business & Bankruptcy Law Journal, 2014) Duran, Sara G.; Rigby, Aaron J.This article examines the effect of assumption or rejection on the non-filing joint venture members when a joint venture’s operating agreement is characterized as an executory contract and subject to assumption or rejection under the Bankruptcy Code by the co-venturer that filed for bankruptcy protection. The article presents a hypothetical to analyze the effect of dissociation, the effect of bankruptcy on managerial rights, and liquidation of the joint venture. Finally, the article provides practical considerations for protecting joint venture members prior to a bankruptcy and what to do when a partner is in financial distress. ItemThe Effect of Bankruptcy Law on Roman Credit Markets(Texas Tech Business & Bankruptcy Law Journal, 2015) Herz, ZacharyThis article discusses the effect of bankruptcy law on Roman credit markets and the importance of Roman credit law to our modern ideas of lending. The article focuses on one aspect of the Roman credit economy – how late Republican and early Imperial moneylenders managed risk under the prevailing legal regime. Finally, the article concludes that credit innovations of the late Republic were not nearly as unambiguously positive as they first seem and that while they created a formal regulatory system that was far more friendly to borrowers than that seen before, the warping effect this had on the reality of credit in the Imperial period cannot be ignored. ItemTen Years After BAPCPA: Continuing Questions in Cramdowns of Individual Chapter 11 Plans(Texas Tech Business & Bankruptcy Law Journal, 2015) Lumber, David J.This article discusses the Bankruptcy Abuse and Consumer Protection Act of 2005 (BAPCPA), enacted to reduce serial bankruptcy filings and reduce the perceived manipulation and exploitation of the bankruptcy system to the detriment of creditors. The article raises the question of whether the absolute priority rule continues to apply when attempting to cram down a plan in individual Chapter 11 cases, and asks why are current wages and after-acquired property exempted from the absolute priority rule. Finally, the article concludes by offering two minor amendments in order to fully effectuate Congress’s intent in enacting BAPCPA. ItemSection 551 of the Bankruptcy Code: Avoiding the Perils of the Useless Avoidance of Liens(Texas Tech Business & Bankruptcy Law Journal, 2014) Pecan, Lawrence E.This article discusses the purpose and applicability of § 551 of the U.S. Bankruptcy Code. The article analyzes various avoidance actions and the purpose of liens preserved under § 551. Finally, the article cautions that the concept of preserving the property right, without necessarily preserving the underlying contract, is difficult for courts and litigants to understand. ItemMore Clarification, Less Litigation: Why Requisite Authorization is Necessary to Terminate Liens and Should be Codified into UCC § 9-513(Texas Tech Business & Bankruptcy Law Journal, 2014) Neerhof, AshleyThis comment discusses a recent split of authority in court rulings regarding the filing of UCC-1 financing statements and UCC-3 termination statements. The comment recommends three changes to resolve the legal ambiguity: § 9-513 should explicitly state that requisite authorization must accompany a UCC-3 to terminate liens on collateral; the commentary following the statute should provide principles that demonstrate proper authorization is present; and the authors should provide a definition of “requisite authorization” in § 9-102. ItemKeeping Up with the Times: A Proposed Change to Medicare and Medicaid Non-Assignment Clauses for Secured Financing(Texas Tech Business & Bankruptcy Law Journal, 2014) Brumfield, CameronThis article discusses how the Uniform Commercial Code (UCC) has evolved to include healthcare insurance receivables, while leaving out Medicare and Medicaid payments. Next, the article discusses the effects of secured financing and the impact of the Affordable Care Act (ACA) on secured lending. The article also discusses why the laws have evolved the way they have and introduces some ways in which those laws could change to increase financing options for healthcare providers. Finally, the article concludes with a discussion of how the ACA will affect healthcare providers and commercial lenders with regard to secured lending and analyzes potential changes to non-assignment laws. ItemIs Consent Enough? 28 U.S.C. § 157(C)(2) and the Fifth Circuit Jurisdictional Limbo(Texas Tech Business & Bankruptcy Law Journal, 2015) Gould, Wesley;The scope of this article addresses the constitutionality of 28 U.S.C. § 157(c)(2), how the Fifth Circuit is dealing with the issue of consent, and how courts should address the issue. The author provides a brief overview of the law surrounding bankruptcy court jurisdiction, while examining the differences between core and non-core issues. Next, the article examines the current Supreme Court precedent on Stern questions and how the Court has handled consent to final adjudication of non-core claims in bankruptcy courts. Then the article will focus on how the Fifth Circuit has interpreted the consent issue given the lack of guidance by the Supreme Court. The article next gives a brief overview of interpretations by the other circuit courts and examine where they differ on their interpretations of the law. Lastly, the article addresses the current issues with the circuit split and propose a solution to the problem. ItemFree Money Gone Bad: Issues that Arise when Participants Do Not Take (or Cash) Distributions Due Them(Texas Tech Business & Bankruptcy Law Journal, 2014) Hedgpeth, PattiThis article focuses on missing participants in contribution plans. The article discusses forfeiture of benefits in an ongoing plan, uncashed distribution checks, and escheat. Finally, the article concludes that the U.S. Department of the Treasury and Internal Revenue Service are developing a white paper with the American Bar Association to try to resolve issues in connection with defined benefit plans. ItemExpanding Foreign Creditors’ Toolkit: The Presumption Against Extraterritorial Application(Texas Tech Business & Bankruptcy Law Journal, 2014) Bergmann, Craig R.This article discusses the administration of Bernie Madoff’s estate and the trustee’s attempt to commence adversary proceedings against a foreign investor to recover distributions it received from a foreign feeder. The article reviews the congressional intent in limiting extraterritorial application of legislation and whether applying 552(a) in this case would be extraterritorial. The trustee also argues that public policy compels extraterritorial application here. The article finally concludes with the Court’s holding that the trustee did not rebut the presumption against extraterritorial application. ItemCrossed Signals: Using Oracle America, Inc. v. Google Inc. to Untangle the Analysis of Software Copyright Protection(Texas Tech Business & Bankruptcy Law Journal, 2015) Killian, RobertThis comment discusses the fundamentals of assigning copyright to software and the inconsistencies between circuits. The comment provides a brief overview of Java and the Oracle America, Inc. v. Google, Inc. decision as well as the development of software copyright protections in different circuits. Finally, the comment gives recommendations for fixing the circuit split regarding software copyright protections. Item2(B) or Not 2(B)? Whether the Negative Implication of § 502(B) Requires Disallowance of Contractual Post-Petition Attorneys’ Fees in Bankruptcy (And Why There Should Be a New Majority Approach)(Texas Tech Business & Bankruptcy Law Journal, 2015) Miller, RonaldThis comment discusses the nonuniformity in the application of 502(b) to post-petition attorneys’ fees in bankruptcy. The comment analyzes the Supreme Court decision in Travelers, which avoided resolving the issue of whether post-petition fees are disallowed by the negative implication of § 506(b). The comment further analyzes the Texas majority view in In re Seda France that disallows attorneys’ fees. Finally, the comment explains the growing minority view that post-petition fees are allowable. ItemThe Jobs Act: A Well-Intended Step Forward?(Texas Tech Business & Bankruptcy Law Journal, 2014) Merchant, Adnan S.This article discusses the Jumpstart Our Business Startups Act (JOBS Act), aimed at reducing regulatory burdens for small businesses reaching out to the public to raise capital. The article analyzes securities regulations and the introduction of crowdfunding. Lastly, the article reviews Titles II and III of the JOBS Act. ItemThe Bankruptcy Code’s Rejection of Trademark Under § 365(n) and the Motley Consequences when a Debtor Rejects a High-Tech Trademark License(Texas Tech Business & Bankruptcy Law Journal, 2014) Enright, JasonThis article discusses the inconsistencies in rejection of intellectual property licenses in bankruptcy. The article first reviews the three main areas of intellectual property: copyright, patent, trademark. The article addresses executory contracts and what happens when the debtor-licensor rejects an executory contract. Lastly, the article concludes that Congress must treat intellectual property licenses consistently in order to achieve the purpose intended by the enactment of § 365(n). ItemThe Application of Till to Chapter 11 Cases in the Fifth Circuit(Texas Tech Business & Bankruptcy Law Journal, 2014) Ellison, RyThis article discusses the general policy rationale for Chapter 11 reorganization. The article provides a procedural and factual analysis of the US Supreme Court decision in Till v. SCS Credit Corp. Finally, the article examines how courts in the Fifth Circuit have applied Till to Chapter 11 cases and the general consensus on its application in the Fifth Circuit. Item“Can You Force Me to Sell My Natural Gas Pipeline?” and Other Interesting Questions that Remain Unanswered by the Bankruptcy Code(Texas Tech Business & Bankruptcy Law Journal, 2014) Warman, Lynnette; Kinvig, CameronThis article discusses the potential for bankruptcy courts to misinterpret Section 363(h)(4) of the bankruptcy code, under which a court can force a sale of the entire property unless it is used for production or distribution of utilities. The article reviews the legislative history and case law surrounding this Section to attempt to clarify the statute’s language. The article concludes that Supreme Court precedent require courts to interpret statutes utilizing their plain language, and that courts should read Section 363(h)(4) inclusively. ItemAllieviating Insecurities when Reporting Unlawful Activities in Securities: Whistleblower Reporting Requirements Under Dodd-Frank(Texas Tech Business & Bankruptcy Law Journal, 2014) Urbanic, FrankThis article discusses the Dodd-Frank whistleblower anti-retaliation protection and its effect on an individual who reports a securities violation to the employer and then is terminated prior to reporting the violation to the SEC. The article examines Dodd-Frank’s whistleblower-protection provision and the SEC interpretation of the provision. The article outlines and analyzes the competing interpretations of the provision and the impact of the interpretations. Finally, the article proposes legislation to clarify ambiguities in the provision. ItemAbuse Under Chapter 7 of the Bankruptcy Code: A Rational Approach to Weighing Ability to Pay(Texas Tech Business & Bankruptcy Law Journal, 2014) Landry, Robert J. IIIThis article discusses the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) and the creation of the statutory means test to address the perceived abuses in consumer bankruptcy. It summarizes the highly litigated issues surrounding the weight and role of ability to pay under § 707(b)(3). Finally, the article concludes that courts should adopt the Ninth Circuit BAP approach to advance the plain language of the Code and purpose of BAPCPA.