- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
Are Mormons to blame for Utah’s chart-topping bankruptcy rates? If this query makes readers feel uncomfortable, we think it should. There is something disturbing about applying certain traits that appear to lead to bankruptcy to a whole religious group. Admittedly, Mormonism is more demographically and geographically diverse, and Utah’s bankruptcy dilemma more complex, than suggested by this question. Yet this question lurks in much of the discussion, among Mormons and non-Mormons alike, regarding Utah’s incredibly high bankruptcy rate. Still more disturbing is the readiness to attempt to answer the “Mormon question” without asking it openly. For years, researchers and pundits indirectly addressed this question by using other characteristics unique to Utah as proxies for religious adherence in an effort to address the question everyone is asking: Are Mormons bankrupting Utah? Unlike previous research regarding Utah’s bankruptcy rate, this study openly asks whether Mormons are the driving force behind Utah’s bankruptcy rate.
With the increase in bankruptcy rates in the past decade, the question of who files for bankruptcy and why has become much more pressing. Even before the extraordinary run up in bankruptcy filings in advance of changes in the law in 2005, each year about one in every seventy-six families in the United States headed to the bankruptcy courts. Evidence suggests that these families were solidly middle class, and not some distant, chronically-poor segment of society. Recent studies point to the increase in bankruptcies among families with children, the well educated, and home owners. Utah possesses these middle class characteristics as much as anywhere in the United States, with its large families, cultural emphasis on education, and church-going population. Sadly, nowhere in the country is bankruptcy a bigger social problem than in Utah. . . .
In 1975, the Supreme Judicial Court of Massachusetts held, in Donahue v. Rodd Electrotype, that a heightened fiduciary duty exists among shareholders of a close corporation. In so holding, the court recognized that the structure of a close corporation presents challenges to minority shareholders, and identified a common-law cause of action to remedy the harms caused by a majority acting contrary to the interests of all shareholders. Since Donahue, other states have recognized similar causes of action for aggrieved minority shareholders in close corporations. Moreover, many states have provided additional, statutory causes of action for dissolution in the event of shareholder “oppression.” Because Massachusetts has not added oppression to the enumerated grounds for corporate dissolution, aggrieved minority shareholders must continue to rely on the common-law action for breach of fiduciary duty.
As a remedy for both statutory oppression and common-law breach of fiduciary duty, courts often order the corporation or majority shareholder to buyout the minority’s shares. Determining the value of shares in a close corporation, however, is no simple task. Because shares in close corporations are not publicly traded, a party valuing a close corporation cannot discern their value simply by examining an active trading price on an accessible market. Courts must therefore apply other methods of valuation.
One important question that arises in the valuation of a minority interest in a close corporation is whether the value of the shares should be discounted to compensate for certain characteristics unattractive to investors. For example, unlike shares in a publicly traded stock, there is no ready market for shares in a close corporation. Therefore, sellers might have a more difficult time finding willing buyers in the event that they want to liquidate their shares. Additionally, minority shareholders, by definition, lack a controlling stake in the corporation, which investors prefer. The two major types of discounts applicable to close corporations are marketability discounts, accounting for the illiquid nature of the stock, and minority discounts, accounting for the shares’ lack of controlling status. . . .
The criminal justice system has historically treated white-collar crimes differently than other crimes, even during the ongoing debate as to whether they deserve this distinction. Courts, as well as academics, have treated white-collar crimes less severely and even labeled such crimes victimless. This classification suggests that either no one feels the injury at all or that the injury is substantially more indirect than the causal connection in, for instance, robbery or assault. Opponents argue that while the injuries may be theoretically indirect, they are still real and substantial, and many result in the loss of jobs or retirement plans.
White-collar crime has recently received substantial media attention with the convictions of major corporate officials. There are a number of theories as to why public outrage is greater now more than ever. One reason is exposure of corporate officers’ lavish lifestyles and expenditures. Another possible reason is increased public outrage over the massive losses caused by the officers’ fraud. Media coverage has revealed the possessions and way of life of corporate officers, including “million dollar homes, private planes, golf courses[,] and art collections.” The public has even bashed some corporate officers for their selection of home décor. . . .
Article III, Section 1 of the federal Constitution vests the judicial power of the United States in “one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 of Article III extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Nowhere in the Constitution, however, is “Cases, in . . . Equity” defined. No statute enacted by Congress has defined what a “case in equity” is.
Section 11 of the Judiciary Act of 1789 merely provided that circuit courts would have “cognizance . . . of all suits of a civil nature at common law or in equity” in cases appropriately brought in those courts. Neither Congress nor the courts have ever attempted to define an “equity case” or a “suit in equity” . . . .
Without a doubt, medical residents work very long hours. Most people would be alarmed to learn that the doctor treating them had been working for thirty-six hours straight or had already worked 100 hours that week. Recent studies confirm the common sense notion that sleep deprivation impairs mental functioning. In October 2004, The New England Journal of Medicine (NEJM) released a series of studies indicating that medical interns working fewer than eighty hours per week experienced less than half the rate of attention failures as those working more hours per week. The studies also found that residents working seventy-seven to eighty-one hours a week and up to thirty-six hours straight made 35.9% more medical errors than those working sixty-three hours a week and less than sixteen consecutive hours.
Given the empirical findings linking long working hours to an increased risk of medical errors, it might seem appropriate to regulate the number of hours residents can work. The Patient and Physician Safety and Protection Act of 2001 (PPSPA), reintroduced in 2005, is a bill designed to achieve this purpose. If enacted, the PPSPA would restrict resident working hours to eighty hours per week, limit shifts to twenty-four consecutive hours (twelve for emergency room shifts), and provide specific time-off requirements.
While the provisions of the PPSPA might seem reasonable or even desirable at first glance, the bill should not be passed for several reasons. As a preliminary matter, the PPSPA’s drafters and its proponents assume that capping resident working hours is inherently desirable without carefully considering the associated risks and consequences. Reducing hours may help decrease fatigue-related attentional failures, but doing so may create other serious problems, such as discontinuity of patient care. Having the resident physician involved with the treatment of a specific patient from start to finish is crucial, not only to the resident’s education, but also to the patient’s welfare. When the resident is required to stop working after a specified period of time, the patient’s file is handed off to another physician who is typically less familiar with the case. In addition, medical professionals express concern that rigid work hour restrictions could exacerbate preexisting staff shortages. . . .
The federal honest services fraud statute proscribes the use of mail or wires to execute a scheme depriving another of the right of honest services. In the private sector, federal courts generally recognize honest services fraud where an employee or agent, using the mail or wires, breaches a fiduciary duty owed to an employer or principal through bribes, kickbacks, or self-dealing. In United States v. Brown, the Fifth Circuit Court of Appeals considered whether four executives at Merrill Lynch (Merrill) conspired to defraud the right of its executives’ honest services from Enron’s executives by facilitating the sale of Enron power barges to Merrill, conditioned upon a secret buy-back agreement which made Merrill’s purchase a loan. The appeals court held that the wrongful conduct of the Enron executives was not sufficiently divorced from Enron’s corporate goal of increasing profits to “constitute a criminal breach of duty” . . . .
The DNA Backlog Elimination Act of 2000 (DNA Act) requires convicted felons to submit DNA samples to law enforcement for entry into the Combined DNA Index System Database (CODIS). The Fourth Amendment protects individuals from searches that are deemed unreasonable. In United States v. Weikert the United States District Court for the District of Massachusetts considered whether the DNA Act violated the Fourth Amendment. The district court held that the State’s lack of special need to obtain DNA precluded extraction of a sample, absent individualized suspicion of criminal conduct. . . .
A case comment on the subsequent appeal of this case to the First Circuit is available here, in Volume 41.
The Fair Labor Standards Act of 1938 (FLSA) is a federal statute governing overtime, minimum wages, recordkeeping, and child labor standards that affect workers in both the public and private sectors. The FLSA requires employee compensation for activities performed during the workday. The Portal-to- Portal Act of 1947 (Portal Act) amended the FLSA by narrowing the scope of the workday to exempt compensation for travel to and from the location of the employee’s principal and non-principal activities. In IBP, Inc. v. Alvarez, the United States Supreme Court considered whether the Portal Act specifically excludes time spent walking from a changing area, where employees don and doff required protective equipment, to a production area. The Court held that the time employees spend walking from the locker room to their workstation is part of their workday, is not barred by the Portal Act exemption, and is therefore compensable under the FLSA. . . .
The First Amendment of the United States Constitution prohibits Congress from interfering with an individual’s right to free speech and free exercise of religion.
While acknowledging that freedom of speech occupies a “preferred position” in constitutional jurisprudence, the United States Supreme Court subjects this freedom to governmental limitations. In particular, Congress places substantial limitations on speech in the government workplace, where public employee speech receives little First Amendment protection. In Maldonado v. City of Altus, the Tenth Circuit Court of Appeals considered whether an English-only policy violated Spanish-speaking Hispanic employees’ First Amendment rights. The court held that the English-only policy did not violate the employees’ First Amendment rights because the ability to speak a certain language did not rise to a matter of public concern. . . .
On February 23, 2005, Florida residents awoke to a news bulletin: a young girl was missing and police were asking for the public’s help. Over the next month, the search for twelve-year-old Jessica Lunsford dominated local news as pictures of the young girl, and details of her abduction, traveled across the state. As time passed and nobody came forward with information, hope for Lunsford’s safe return diminished. Finally, on March 19, 2005, investigators recovered her body in a shallow grave in her neighbor’s yard. With the search over, Lunsford’s neighbors and family demanded answers to how this crime was possible and sought to punish those responsible for her death.
Floridians were shocked to learn that John Couey, a convicted sexual offender, who lived with his sister across the street from Lunsford, confessed to the crime. In response to Lunsford’s murder, the Florida legislature initiated debates on whether to enact tougher sexual offender registry provisions and also whether to establish new sexual offender crimes and punishments. As a result, the Florida legislature passed the Jessica Lunsford Act (Lunsford Act), as an attempt to create one of the toughest sexual offender laws in the country.
All fifty states and the District of Columbia have enacted some type of sexual offender registry. Individual states are free to determine which provisions and conditions to apply to convicted sexual offenders as long as those provisions meet general federal requirements. Failure to abide by federal requirements may result in the state’s forfeiture of funds allotted for law enforcement block grants.
Convicted sexual offenders have raised challenges alleging such state laws infringe on their constitutional due process rights and constitute ex post facto laws. This Note will analyze specific provisions of the Lunsford Act and determine how prior court decisions will likely apply to the expected challenges to this new law. Specifically, in Part II, this Note will focus on the constitutional substantive and procedural due process requirements in enacting sexual offender registries and the limitation that such laws must not violate the Ex Post Facto Clause of the United States Constitution. Finally, this Note will analyze the remaining provisions of the Lunsford Act, its objective to keep children safe from sexual offenders, and the practicality of complying with all of its requirements. . . .