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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues arising from bankruptcy proceedings. Section 1129(a)(7)(A)(ii) (of the Bankruptcy Code) requires bankruptcy courts to determine what creditors would receive under a hypothetical chapter 7 liquidation, and then compare that amount to what the same creditors would receive under a chapter 11 reorganization. It provides that a bankruptcy court may confirm a chapter 11 plan only if each holder of an impaired claim "will receive or retain ... property of a value, as of the effective date of the plan, that is not less than the amount that such holder would so receive or retain if the debtor were liquidated under chapter 7 of this title on such date." 11 U.S.C. § 1129(a)(7)(A)(ii). Although "[t]he hypothetical liquidation analysis must be based on evidence and not assumptions in order to meet the best interests of creditors test," COLLIER ON BANKRUPTCY ¶ 1129.02 n.98 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2016) (citing In re MCorp Fin., Inc., 137 B.R. 219, 228-29 (Bankr. S.D. Tex. 1992)), "a trustee's avoiding powers in a hypothetical chapter 7 case may [] affect the analysis," id. ¶ 1129.02. In re Tenderloin Health, 849 F. 3d 1231 (9th Cir. 2017). For instance, in In re Affiliated Foods, Inc., 249 B.R. 770 (Bankr. W.D. Mo. 2000), the court found the statute "requires an estimation of the value of all of the bankruptcy estate's assets, including such hard to determine values as disputed and contingent claims, the potential disallowance of claims (under § 502(d)), the probability of success and value of causes of action held by the estate, and, in this case, potential preference actions." Id. at 788 (internal citation omitted). Likewise, in In re Sierra-Cal, 210 B.R. 168 (Bankr. E.D. Cal. 1997), the court found "all provisions applicable in a chapter 7 liquidation are to be taken into account when the court determines what sums would be paid to whom in a hypothetical liquidation." Id. at 174. It then applied two avoidance provisions in the hypothetical liquidation using the facts and testimony in the record. See id. at 174-75 (concluding "a competent chapter 7 trustee would be able to recover against [the creditor] under § 544 and § 549"). In re Tenderloin Health, ibid.
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Federal Tort Claims Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. As a general rule, the United States is immune from claims for money damages in civil suits. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 686-90, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The FTCA waives the United States' sovereign immunity for civil suits for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). Where the FTCA's waiver is operative, the government is liable in tort "in the same manner and to the same extent as a private individual under like circumstances." Id. § 2674. However, this broad waiver of sovereign immunity is cabined by a list of exceptions. See id. § 2680. [T]he FTCA's waiver does not apply to "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. § 2680(a).The exceptions to the FTCA's immunity waiver work to defeat the subject matter jurisdiction of the federal courts. Indemnity Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir. 2009). Thus, the burden is on the plaintiff in such a civil suit to establish "that the discretionary function exception does not foreclose their claim." Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir. 2016).This exception represents one limit to the extent of "Congress' willingness to impose tort liability upon the United States." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). It exists to prevent interference by the judiciary in the policy-laden balancing that accompanies the exercise of executive discretion. See Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993); Tiffany v. United States, 931 F.2d 271, 276 (4th Cir. 1991). Most importantly, the exception protects that "discretion of the executive ... to act according to [his] judgment of the best course, a concept of substantial historical ancestry in American law." Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Taken together, these considerations make manifest the important separation-of-powers principles that animate the discretionary function exception. See Holbrook v. United States, 673 F.3d 341, 345 (4th Cir. 2012).Blanco Ayala v. United States, 982 F. 3d 209 (4th Cir. 2020)
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding election law. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * [W]hen a "plaintiff alleges that a state has burdened voting rights through the disparate treatment of voters," [ ] precedent requires us to apply the Anderson-Burdick framework. Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012).Under Anderson-Burdick, we first look to the burden the State's regulation imposes on the right to vote. Burdick, 504 U.S. at 434, 112 S.Ct. 2059; Obama for Am., 697 F.3d at 428. When States impose "'reasonable nondiscriminatory restrictions'" on the right to vote, courts apply rational basis review and "'the State's important regulatory interests are generally sufficient to justify' the restrictions." Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)); see Obama for Am., 697 F.3d at 429. But when States impose severe restrictions on the right to vote, such as poll taxes or limiting access to the ballot, strict scrutiny applies. Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (citing Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)); Obama for Am., 697 F.3d at 429. It is when cases fall between these two extremes that the Anderson-Burdick framework departs from the traditional tiers of scrutiny and creates its own test.For these intermediate cases, where the burden on the right to vote is moderate, we must weigh that burden against "'the precise interests put forward by the State as justifications for the burden imposed by its rule, ' taking into consideration 'the extent to which those interests make it necessary to burden the plaintiff's rights.'" Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). Only where the State's interests outweigh the burden on the plaintiff's right to vote do voting restrictions not offend the Equal Protection Clause. Obama for Am., 697 F.3d at 433. While this standard is flexible, we must ultimately "make the 'hard judgment' that our adversary system demands." Crawford, 553 U.S. at 190, 128 S.Ct. 1610 (Stevens, J., announcing the judgment of the Court). Mays v. LaRose, 951 F. 3d 775 (6th Cir. 2020)
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding election law. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals.* * * According to the constitutional blueprint for implementing the Electoral College, the States alone (through their legislatures) possess the power to determine the manner of appointing presidential electors. See U.S. Const. art. II, § 1, cl. 2; id. amend. XII. The text of the Elector Clause reads: "Each state shall appoint in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . . ." Id. art. II, § 1, cl. 2. In interpreting the bounds of the Elector Clause, the Supreme Court has stated that "[t]he state legislature's power to select the manner for appointing electors is plenary." Bush, 531 U.S. at 104 (citing McPherson, 146 U.S. at 35). It is precisely for this reason that the Constitution does not prescribe or endorse any selection method in particular. See McPherson, 146 U.S. at 28 ("The final result [of the constitutional convention] . . . reconciled contrariety of views by leaving it to the state legislatures to appoint directly by joint ballot or concurrent separate action, or through popular election by districts or by general ticket, or as otherwise might be directed."); see also id. at 27 ("The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors."). State legislatures have utilized a variety of appointment mechanisms since the framing of the Constitution, but in recent memory, "[h]istory has . . . favored the voter." Bush, 531 U.S. at 104. Of course, the hand that giveth, also taketh away (if it so desires). See id. (citing McPherson, 146 U.S. at 35) ("The State . . . after granting the franchise in the special context of Article II, can take back the power to appoint electors.").Plenary as a state legislature's power to dictate the manner of appointing presidential electors may be, it is not beyond judicial review. On the contrary, it is "always subject to the limitation that [it] may not be exercised in a way that violates other specific provisions of the Constitution." Rhodes, 393 U.S. at 29; see also Williams, 288 F. Supp. at 626 (noting that in order to pass muster, "the manner of appointment must itself be free of Constitutional infirmity"). The Equal Protection Clause of the Fourteenth Amendment is one such well-established limitation (the First Amendment is another, as we will explain later). See Rhodes, 393 U.S. at 29 ("[N]o State can pass a law regulating elections that violates the Fourteenth Amendment[]. . . ."); Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964) ("Our Constitution leaves no room for classification of people in a way that unnecessarily abridges [their] right [to vote].").Lyman v. Baker, (1st Cir. 2020)
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