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Lewis & Clark Law Review

Volume 6 / Number 3 / Fall 2002

This page contains the abstracts, as well as links to the complete document on Westlaw.com, for the Articles in our Fall 2002 Issue.

 

Articles

 

Citizenship of Limited Liability Companies for Diversity Jurisdiction
Debra R. Cohen
Westlaw
The limited liability company is an increasingly popular form of business organization. Due to its hybrid nature, however, the citizenship of a LLC for purposes of diversity jurisdiction is difficult to determine. Should the citizenship of a LLC be determined as if it were a corporation, in which case it has “entity” citizenship, or as if it were a partnership, in which case its citizenship is determined by the citizenship of “persons composing” the LLC? This Article examines the history of the evolution of hybrid organizations like the LLC, and the rules for determining the citizenship of business organizations in light of the dichotomy between corporations and all other business organizations. The Article argues that the current framework—determining the citizenship of a business organization by focusing solely on whether the organization was incorporated—is technical, precedent-bound, and does not reflect the reality of modern business organizations law. In its place, the author advocates for a new framework that would focus on the citizenship of persons or entities that have a direct interest in the pending litigation. Such a framework would better serve the policies of federal diversity jurisdiction.

Legal and Business Perspectives on Small Business Start-Ups: A Selective, Annotated Bibliography
April L. Schwartz
Westlaw
This annotated Bibliography focuses on small business start-up resources. Schwartz has compiled resources for the specialized area of business law that involves helping clients to launch new businesses. Advising entrepreneurial clients requires careful legal counsel as well as general business knowledge, such as selecting the optimal business entity, producing a business plan, and determining financing options for a new business. This Bibliography describes numerous monographs, serials, and websites to aid lawyers in gaining expertise in the business and legal aspects of launching a new enterprise.

 

Essay

 

Thinking of Going Public? Think Twice, Then Read the Sarbanes-Oxley Act of 2002
Stephen J. Redner
Westlaw
In this Essay, international business law attorney and professor, Stephen J. Redner, discusses the impact of the Sarbanes-Oxley Act of 2002 on the small business. After providing an overview of the major provisions of the Act, Redner suggests that businesses considering an initial public offering should think twice because the Act’s regulatory requirements create a significant detriment that should be considered before “going public.” The Essay briefly discusses the Act’s impact on foreign corporations, as well as offering alternative options for the small business requiring capital.

 

Comments

 

Wa(i)vering in the Sight of an Adversary: Bankruptcy Code Section 106 and the Federal Tort Claims Act
Richard A. Greene
Westlaw
This Comment explores the interplay between the broad waiver of sovereign immunity in 11 U.S.C. § 106(b)-(c) of the Bankruptcy Code with the limited waivers in the Federal Torts Claim Act. Current precedents interpret the waivers in 11 U.S.C. § 106(b)-(c) as being distinct and separate from all other limited waivers. This interpretation has effectively nullified the limited waivers of sovereign immunity that Congress expressly reserved for the federal government in the FTCA. As a result, plaintiffs in bankruptcy can bring tort claims against the government that are explicitly prohibited in a nonbankruptcy forum. This Comment explores the traditional bounds and intended purpose of 11 U.S.C. § 106(b)-(c), and then examines the early case law that gave birth to the current conflict with the FTCA. Next, this Comment explores the potential abuses that may occur if the current interpretation is not changed. Finally, this Comment argues for a new statutory construction that would preserve the FTCA’s exceptions in bankruptcy.

Proposed Guest Worker Statutes: An Unsatisfactory Answer to a Difficult, If Not Impossible, Question
Michael J. Mayerle
Westlaw
This Comment examines the current policy of dealing with undocumented immigrants, and it evaluates the effectiveness of currently proposed guest worker statutes to bolster the Immigration Reform and Control Act’s goal of decreasing the incentives of illegal immigration. This Comment presents an alternative variation of the guest worker proposals that addresses the objections to the proposals currently before Congress. It concludes that any guest worker program that neglects to address the identified objections will not decrease illegal immigration because businesses are likely to continue to hire undocumented workers.

Group One, Ltd. v. Hallmark Cards, Inc.: The § 102(b) On-Sale Bar Bright-Line Test of Pfaff v. Wells Electronics, Inc. Just Got Brighter
Peter D. Sabido
Westlaw
In Group One, Ltd. v. Hallmark Cards, Inc., the Federal Circuit decided that an offer for sale must rise to a commercial offer for sale under contract law to trigger a 35 U.S.C. § 102(b) on-sale bar. This Comment will demonstrate how the Federal Circuit made the bright-line test for the on-sale bar even brighter in that case. Section II reviews the history of on-sale bar law and how Group One departs from the trend in the area of on-sale bar law. Section III reviews the Group One case and analyzes the Federal Circuit’s reasoning. Section IV reviews federal contract law. Finally, section V of this Comment concludes with a review of Group One’s effect on on-sale bar case law.

 

Recent Developments

 

Federal Regulatory Policy
Richard A. Greene
Westlaw
This Note examines recent developments in federal rulemaking policy and its influence on small businesses. The Bush Administration has implemented new enforcement mechanisms intended to increase agency compliance with existing regulatory mandates. This Note suggests that these changes may enhance the visibility of small business issues in the regulatory proceeding and make agencies more sensitive to the needs of small business when promulgating new federal regulations.

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