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									              THE COMMENT
                        Thomas M. Cooley Law Review
             Volume XIV, Issue I ○ 300 S. Capitol Ave. ○ Lansing, MI 48933
      Michaelmas Term 2010
                                                    Thomas M. Cooley
                                                      Law Review
                Katie Krueger

              Cassandra Werner
              Solicitation Editor

                John Campbell
          Interim Solicitation Editor

               Jessica Sutton
              Managing Editor

               Michael Hekman
              Symposium Editor
                                                Don’t just study law, create it.
              Dayana Echeverry
          Interim Symposium Editor
                                             Please look for more exciting articles and
                Steven Fantetti              information in The Pillar, and visit our website
               Casenotes Editor
               Kelly Stewart
              Comments Editor                If you are interested in the Thomas M. Cooley
                                             Law Review or you would like a copy of the
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           Interim Comments Editor           Review, please stop by our office on the 3rd
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                 Scott Hughes
                Articles Editor

               Dawn Beachnau
                                             The articles contained in this issue of The
The Comment is a publication of the Thomas   Comment were written by Publicity Editors
                                             Eileen McGivney and Daniel Cieslak.
M. Cooley Law Review.
The Comment                                                                         Volume XIV, Issue I

                                                         concerns and criticisms have focused on the
   Government Seeks to Bring                             federal government‟s lagged response to
Criminal and Civil Charges Against                       remedy the spill, continuation of off-shore
                                                         drilling, the need for more stringent
                                                         regulations,9 and whether or not criminal
     Eileen McGivney, Publicity Editor,
                                                         and civil charges should be brought against
      Thomas M. Cooley Law Review
                                                                 On June 1, 2010, the Obama
        This June, nearly a month and a half
                                                         Administration announced “that it had
after the British Petroleum (BP) oil spill
                                                         begun civil and criminal investigations into
began in the Gulf of Mexico, the Obama
                                                         the massive oil spill.”11 United States
Administration announced that it will begin
                                                         Attorney General Eric Holder stated that he
civil and criminal investigations into the
                                                         intends to prosecute to the law‟s fullest
environmental disaster.1 The massive oil
                                                         extent “any person or entity that the Justice
spill began April 20, 2010, when
                                                         Department determines has broken the law
Transocean‟s Deepwater Horizon drilling
                                                         in connection with the oil spill.”12 The
rig2, which was leased to BP,3 exploded off
                                                         administration declared that it will be
of the Louisiana coast during an off-shore
                                                         reviewing “violations of the Clean Water
drilling expedition.4 Two days after the
                                                         Act, which carries criminal and civil
explosion, the rig sunk, and two days
                                                         penalties and fines; the Oil Pollution Act of
following the rig sinking, oil began leaking
                                                         1990, which can be used to hold parties
from the undersea wellhead at a rate of
                                                         responsible for cleanup costs; the Migratory
1,000 barrels a day.5 The estimated rate of
                                                         Bird Treaty Act and the Endangered Species
oil leakage has since increased,6 and the oil
                                                         Act, which provide penalties for injury and
well is now predicted to continue leaking
                                                         death of wildlife.”13 Federal agents from the
throughout the summer.7
                                                         Environmental Protection Agency, as well
        Public opinion polls show that the
                                                         as the FBI, have been in the Gulf Coast for
BP oil spill is now considered a greater
                                                         many weeks gathering evidence.14 In
disaster than Hurricane Katrina.8 Public
                                                         addition, the Justice Department ordered BP
                                                         to preserve all documents regarding the rig
  Helen Cooper & Peter Baker, U.S. Opens Criminal
Inquiry Into Oil Spill, N.Y. TIMES, June 1, 2010,
available at
                                                         9        Russell Blinch & Rick Cowan, Obama Signal Tough
  Damien Hoffman, A Timeline of the BP Oil Spill         Stance, Drilling to Resume, REUTERS, June 8, 2010,
Crisis, WALL ST. CHEAT SHEET, May 6, 2010,               available at
available at
news/a-timeline-of-the-bp-oil-spill-crisis-              00608.
pics/?p=10743/.                                             Cooper & Baker, supra note 1.
3                                                        11
  Cooper & Baker, supra note 1.                             Id.
4                                                        12
  Hoffman, supra note 2.                                    Id.
5                                                        13
  Id.                                                       Id.
6                                                        14
  Id.                                                       Helen Kennedy, BP Facing Criminal Charges as
  Cooper & Baker, supra note 1.                          Attorney General Eric Holder Probes Negligence
  Gary Langer, Poll: BP Oil Spill Response Rated         Over Gulf Oil Spill, N.Y. DAILY NEWS, June 1, 2010,
Worse than Katrina, ABC NEWS, June 7, 2010,              available at
available at                                            01/2010-06-
oil-spill-rated-worse-katrina-criminal-                  01_president_obama_bp_could_face_criminal_charg
charges/story?id=10846473.                               es_over_gulf_oil_spill.html.

The Comment                                                                         Volume XIV, Issue I

blowout and spill.15 BP spokesman Toby                  oil will probably continue to gush until a
Odone stated that BP‟s policy is to                     relief well is in place, which is estimated to
cooperate with all official inquiries into the          be completed in August.23
disaster.16                                                      The BP oil spill has been declared
         Americans are outraged by the                  the worst spill in American history.24 On
government‟s failure to take more expedient             June 7, Coast Guard Commander Adm.
measures to alleviate the oil leak that has             Thad W. Allen stated that it could take years
now reached the shores of Alabama.17 In                 to deal with the long-term effects of the
fact, according to polls, many Americans                spill.25 Furthermore, “restoring wetlands
believe that the federal government‟s                   and wildlife habitats along the Gulf Coast
response is worse than the Bush                         will take far beyond the time needed to cap
Administration‟s response to Hurricane                  the ruptured undersea well at the heart of the
Katrina.18 However, unlike Katrina, this                disaster.”26 Hopefully, efforts to alleviate
disaster is on-going, and drastic measures              the oil leak in an expedient manner will
need to be taken in order to prevent the oil            succeed, and charges will be brought against
from further destroying coasts and wetlands             the company for the disaster it has caused.
in the Gulf of Mexico.
         In the mean time, President Obama                   After Thirty-Four Years, Justice
is demanding that BP “create an escrow
                                                             Stevens Retires from the Bench
account to compensate business and
                                                         Eileen McGivney, Interim Publicity Editor,
individuals for losses caused by the spill.”19
                                                              Thomas M. Cooley Law Review
A meeting with BP executives is scheduled
for the third week of June in order to discuss
                                                                 On April 10, 2010, after serving as
such compensation plans.20 In an attempt to
                                                        an Associate Justice on the United States
pacify the Obama Administration, on June
                                                        Supreme Court for thirty-four years, Justice
14, BP announced that it will be speeding up
                                                        John Paul Stevens announced his intent to
its oil-capturing efforts by devising “a new
                                                        retire from the bench.27 “A Republican
plan that involves siphoning off 40,000 to
                                                        named to the court in 1975 by President
53,000 barrels of oil a day by the end of
                                                        Gerald R. Ford, Stevens leaves a legacy of
June.”21 This plan would dramatically
increase the amount of oil that is captured,
which is currently only about 15,000 barrels               Kennedy, supra note 14.
a day.22 Thus far, BP‟s attempts to plug the               Maureen Mackey, BP Oil Spill: Worst in History;
well have failed, and it now concedes that              Scientists Weigh In, FISCAL TIMES, May 28, 2010,
                                                        available at
   Id.                                                  Economy/2010/05/28/BP-Oil-Spill-Worst-Leat-in-
   Id.                                                  History-Scientists-Weigh-In.aspx.
17                                                      25
   Id.                                                     Ben Rooney & Alan Silverleib, Gulf Oil Disaster
   Langer, supra note 8.                                Cleanup to Take Years, Allen Says, CNN.COM, June
   Meena Hartenstein, BP CEO Tony Hayward Called        8, 2010, available at
to White House, Congress Over Gulf Leak, N.Y. 
DAILY NEWS, June 14, 2010, available at                 dex.html?iref=obinsite.
                                                        26          Id.
14/2010-06-                                                Robert Barnes, Justice John Paul Stevens
14_obama_to_go_after_bp_executives_this_week_in         Announces His Retirement from the Supreme Court,
_oval_office_speech_meeting_at_white.html.              WASH. POST, Apr. 10, 2010, available at
   Id.                                                  dyn/content/article/2010/04/09/
   Id.                                                  ml.

The Comment                                                                             Volume XIV, Issue I

defending abortion rights, expanding                        President Gerald Ford nominated Stevens as
protection for gays, restricting the                        an Associate Justice for the United States
availability of the death penalty and                       Supreme Court on December 1, 1975.38 He
ensuring a robust role for judges in                        was confirmed on December 17, 1975 and
interpreting the nation's laws and curbing                  took oath of office on December 19, 1975.39
executive power.”28                                                 During his tenure on the bench,
        Stevens was born on April 20, 1920,                 Stevens took part in many infamous
in Chicago, Illinois29 “to a wealthy South                  Supreme Court decisions.40 Although
Side family.”30 His father was the owner of                 nominated by a republican president, and a
the Stevens Hotel, which is now the Chicago                 self-proclaimed conservative, “Stevens
Hilton.31 Stevens received a Bachelor‟s                     became a hero to liberals voting to limit the
Degree in English Literature from the                       use of the death penalty, uphold affirmative
University of Chicago in 1941.32 After                      action, broaden the core holding of Roe v.
college, he served in the United States Navy                Wade and argue for a strict separation of
for three years during World War II and                     church and state.”41
received a Bronze Star.33 In 1947, he                               Stevens‟s views on the death penalty
graduated magna cum laude from                              significantly changed during his time on the
Northwestern University School of Law.34                    bench.42 In 1976, he voted to reinstate the
He was admitted to the Illinois Bar in 1949,                use of the death penalty in Jurek v. Texas.43
after clerking for Associate Justice, Wiley                 In that case, the defendant had kidnapped,
Rutledge from October 1947 to July 1948.35                  rapped, and murdered a ten year-old girl.44
During the 1950‟s, he lectured on antitrust                 The Court‟s opinion concluded that Jurek‟s
law at Northwestern University School of                    sentence was constitutional because Texas‟
Law and at the University of Chicago                        imposition of the death penalty was rational,
School of Law.36                                            evenhanded, and consistent.45 In 2002,
        Stevens was nominated by President                  Stevens‟s opinion on the issue turned in a
Nixon to the United States Court of Appeals                 different direction when he wrote the
for the Seventh Circuit and took the oath of                opinion for Atkins v. Virginia, “which ended
office on October 14, 1970.37 Five years                    the death penalty for mentally retarded
after serving for the Court of Appeals,                     criminals.”46 He also voted against its use
                                                            on juvenile offenders.47 By 2008, in Baze v.
                                                            Rees, he argued against using the death
   Id.                                                      penalty all together, stating in his concurring
   Cornell University Law School, Supreme Court:
John Paul Stevens Biographical Data,
                                                            38          Id.
.html (last visited June 27, 2010).                            Id.
30                                                          40
   Ariane de Vogue, Justice John Paul Stevens to               de Vogue, supra note 4.
Retire From Supreme Court, ABC NEWS, Apr. 9,                   Id.
2010, available at                                             Id.
                                                            43            Dan Slater, Justice Stevens on the Death Penalty: A
e-john-paul-stevens-retires-us-supreme-                     Promise of Fairness Unfulfilled, WALL ST. J., Apr.
court/story?id=9615609.                                     18, 2008, available at
   Cornell University Law School, supra note 3.             on-the-death-penalty-a-promise-of-fairness-
   Id.                                                      unfulfilled/.
34                                                          44
   Id.                                                         Id.
35                                                          45
   Id.                                                         Id.
36                                                          46
   Id.                                                         de Vogue, supra note 4.
37                                                          47
   Id.                                                         Id.

The Comment                                                                         Volume XIV, Issue I

opinion that he believed it amounted to                 leadership on the court.”56 Coincidentally,
“state-sanctioned killing.‟‟48                          Justice Stevens‟s last day on the bench was
        Although he was not on the bench                June 28, 2010, the same day that Elena
when the infamous decision of Roe v. Wade               Kagan began her testimony before the
was handed down, Stevens later voted to                 Senate Judiciary Committee.57
reaffirm and broaden its holding in Planned
Parenthood of Pennsylvania v. Casey.49 In                    A New Chicago Gun Law and a
2003, Justice Stevens “assigned Justice                          New Legal Challenge
Anthony Kennedy to write Lawrence v.                          Eileen McGivney, Publicity Editor,
Taylor, the landmark gay rights case striking                  Thomas M. Cooley Law Review
down a criminal ban on gay consensual
sex.50 Kennedy‟s opinion relied heavily on                      Just weeks after the United States
Steven‟s dissent from a previous case that              Supreme Court “struck down Chicago's ban
upheld an anti-sodomy law.51                            on private ownership of handguns, saying
        Also in 2003, Stevens teamed up                 the Second Amendment applies to states and
with Justice Sandra Day O'Connor to uphold              municipalities as well as the federal
federal campaign finance regulations.52 This            government,”58 Chicago passed a new gun
past January, he vigorously dissented from a            law.59 And now, Chicago‟s new ordinance
ruling that overturned limitations on                   is already being challenged.60
corporate expenditures in elections.53 But,                     In June, the Supreme Court handed
Stevens is probably best known for his                  down its second decision in the past two
dissent in Bush v. Gore, the controversial              years that ruled that blanket handgun bans
Supreme Court decision that halted a                    were unconstitutional. 61 In McDonald v.
recount of Florida ballots and cleared the              Chicago, the Supreme Court extended its
way for George W. Bush to take the                      2008 ruling of Heller v. United States,
presidency.54                                           which struck down a Washington, D.C.
        In May, President Obama announced               handgun ban.62 In McDonald, the court
his nomination for U.S. Solicitor General               found that residents of states and
Elena Kagan to replace Justice Stevens on               municipalities, as well as federal territories,
the Supreme Court.55 Obama stated that
Kagan will bring the same “excellence,
independence, integrity and passion for the                Id.
law and . . . ultimately can provide the same              Joan Biskupic, Justice Stevens Ascends to Final
                                                        Day on Supreme Court, ABC NEWS, June 28, 2010,
                                                        available at
   Slater, supra note 17.                               ascends-final-day-bench/story?id=11029859.
49                                                      58
   de Vogue, supra note 4.                                  Harriet Robbins Ost, U.S. Supreme Court:
   Id.                                                  Chicago’s Gun Ban Struck Down, UPI.COM, June 28,
   Id.                                                  2010, available at
   Joan Biskupic, Justice Stevens to Retire from
Supreme Court, USA TODAY, Apr. 12, 2010,                Supreme-Court-Chicagos-gun-ban-struck-down/UPI-
available at                                            18071277761369/.
                                                        59           Chicago Tries Again to Enforce Gun Restrictions
2010-04-09-justice-stevens-retire_N.htm.                After High Court Ruling, FOX NEWS.COM, July 12,
   Id.                                                  2010, available at
   Kara Rowland, Obama Nominates Kagan to High          o-tries-enforce-gun-restrictions-high-court-ruling/.
Court, WASH. TIMES, May 10, 2010, available at              Id.
                                                        61             Ost, supra note 1.
/obama-appoint-kagan-high-court/.                           Id.

The Comment                                                                         Volume XIV, Issue I

were constitutionally protected to keep                 with the decision.”68 The Chicago Mayor
handguns in their homes for self-defense.63             said his “main concern is protecting police,
        In McDonald, the plaintiff, an                  firefighters and paramedics responding to
“elderly African-American man who wanted                emergency calls.”69
a gun to defend his home against local                          Just four days after the Supreme
gangs, but was barred from owning one                   Court‟s decision was handed down, the
legally due to Chicago‟s blanket prohibition            Chicago, Illinois, City Council “in a 45-0
on handgun ownership.”64 In its decision, “a            vote approved a new gun ordinance.”70 The
5-4 conservative majority of justices . . .             new ordinance places heavy restrictions on
reiterated its 2-year-old conclusion that the           gun ownership and “allows only one
Constitution gives individuals equal or                 operable firearm per household, meaning all
greater power than states on the issue of               other guns would need to have gun locks or
possession of certain firearms for self-                be locked in cases.”71 The ordinance “also
protection.”65 The opinion was written by               requires owners to have a state firearms
Justice Alito, with Justices Roberts,                   permit, to register weapons with Chicago
Kennedy, and Scalia joining the opinion and             police and to take four hours of classroom
Justice Thomas concurring.66 The Justices               training and one hour of firing range
grounded the right to bear arms in the                  training.”72 Additionally, the ordinance
Second Amendment, as well as the                        “bans assault weapons and gun shops in the
Fourteenth Amendment‟s due-process                      city.”73 A fine will be imposed on those
clause, and also stated that “local                     who violate the regulations, and the amount
jurisdictions still retain the flexibility to           will vary depending on the degree of the
preserve some „reasonable‟ gun-control                  infraction.74
measures currently in place nationwide.”67                      Even before the new regulation
        Chicago Mayor Richard Daley stated              could go into effect, two federal lawsuits
that the “ruling was not unexpected and the             were filed challenging the constitutionality
city would revise its ordinance to comply               of the ordinance.75 One suit has been
                                                        brought by “four Chicago residents and a
                                                        gun rights group.”76 The four residents, who
   Id.                                                  include “a trader on the Chicago Mercantile
   Abigail Field, Supreme Court Overturns Chicago       Exchange, a teaching assistant, a self-
Handgun Ban, DAILY FINANCE, June 28, 2010,              employed businessman and a
available at                                            veterinarian,”77 “have multiple guns kept
65                                                      68
   CNN Wire Staff, Chicago City Council Passes             Ost, supra note 1.
New Gun Ordinance, CNN.COM, July 2, 2010,                   Id.
available at                                                CNN Wire Staff, supra note 8.
                                                        71           Id.
ban/index.html.                                             Id.
66                                                      73
   Elijah Sweete, McDonald v. Chicago: Second               Id.
Amendment Applied to States/Municipalities,                 Nick Dean, Second Amendment Supporters to
MODERATE VOICE, June 28, 2010, available at             Challenge Chicago’s New Restrictions on Gun           Ownership, CNSNEWS.COM, July 7, 2010, available
chicago-second-amendment-applied-to-                    at
statesmunicipalities/.                                      FOX NEWS.COM, supra note 2.
67                                                      76
   Bill Mears, High Court Strikes Down Chicago              Id.
Handgun Ban, CNN.COM, June 29, 2010, available at           Dahleen Glanton & Duaa Eldeib, Plaintiffs Aim to         Shoot Down Gun Ordinance, CHI. TRIB., July 7,
andgun.ban/index.html.                                  2010, available at

The Comment                                                                        Volume XIV, Issue I

outside the city but want to keep more than            garages, porches and yards could pose
one inside Chicago.”78 The other plaintiff to          problems for the city in the long run.”85
the suit, the Illinois Association of Firearms
Retailers, “wants its members to be able to
sell guns and maintain shooting ranges                 DODD-FRANK ACT GIVES FDIC
inside Chicago limits.”79                                   NEW AUTHORITY
        The residents‟ lawsuit, which was                   Daniel Cieslak, Interim Publicity Editor,
filed July 6, 2010, in U.S. District Court,                    Thomas M. Cooley Law Review
“claims that the new ordinance violates the
right of Chicago residents to keep and bear                     The Dodd-Frank Wall Street Reform
arms under the 2nd and 14th                            and Consumer Protection Act (“Dodd-Frank
Amendments.”80 The suit also “challenges               Act”), signed into law on July 21, 2010, is
the ordinance's provision allowing residents           2,300 pages long.86 A few of those pages
to have guns inside their houses but not in            give the Federal Deposit Insurance
their garages or on their back porches or              Company (FDIC) broad and, somewhat,
outside steps.”81 Additionally, the suit               unchecked power to liquidate business
alleges “that the ordinance, which allows              entities.87 This power is termed Orderly
Chicagoans to register a maximum of one                Liquidation Authority (OLA).88 “[The] new
handgun per month, violates the                        [power applies in part] to bank holding
Constitution by restricting the number of              companies, nonbank financial companies
guns they can own.”82 The second lawsuit               supervised by the Federal Reserve, and any
involves a man who wishes to open a gun                other company or subsidiary „predominantly
store within the city limits.83                        engaged‟ in financial activities, when such
        While Chicago officials declared that          activities account for at least 85 percent of
the ordinance “was designed to withstand               revenue.”89 The definition seems simple
legal challenges, law experts said some                enough, and therein, some say, is the
aspects of it might not hold up.”84 And,               problem.90 “Renée Dailey, a partner in
although it is impossible to know how                  Houston-based Bracewell & Giuliani‟s
successful the two federal lawsuits will be in
court, “experts said banning gun sales,
limiting permit holders to one ready-to-fire           85
weapon in a home and prohibiting guns in                  Dodd-Frank Wall Street Reform and Consumer
                                                       Protection Act, H.R. 4173, 111th Congress § 2004
                                                       (2010) (enacted), available at
                                                       (search “H.R. 4173” and click “CRS Summary” in
                                                       resulting table).
                                                       87          Id.
chicago-gun-lawsuit-0708-                                 Sonnenschein Client Alert, “Financial Regulatory
20100707,0,2041882.story?obref=obnetwork.              Reform – New Orderly Liquidation Authority of
   FOX NEWS.COM, supra note 2.                         FDIC; and Resolution Plans”, Sep. 2, 2010,
   Id.                                                 available at
   Glanton & Eldeib, supra note 20.           (click
   Id.                                                 “Publications” on top right, page over until
   Id.                                                 September 2, 2010).
83                                                     89
   Id.                                                    Id.
84                                                     90
   Dahleen Glanton & Duaa Eldeib, Chicago Gun             Jenna Greene, FDIC’s New Power to Dissolve
Law May Not be Bulletproof, CHI. TRIB., July 11,       Companies Raises Concerns,, Sept. 7 2010,
2010, available at                                     available at
chicago-gun-law-20100708,0,3275699.story.              89&rss=newswire

The Comment                                                                          Volume XIV, Issue I

financial restructuring group in Connecticut,              and compel receivership of a company when
stated that it “may be difficult to try to draw            it determines the company‟s collapse is
a box around” exactly who this power                       imminent and would have “a serious adverse
applies to – a key question for                            affect on the financial stability of the United
rulemaking.91“And it may not be                            States.”101 While the Dodd-Frank Act does
immediately apparent to investors.”92 The                  outline the generally aspects of the OLA,
goal of the legislation is simple–to prevent               detailed interpretations of the provisions are
taxpayer bailouts;93 however, currently, the               still forthcoming.102
OLA is negatively affecting the financial                           The fact that the scope and extent of
markets because the parameters of the OLA                  the FDIC‟s power and related processes are
are not yet defined.94                                     not yet well defined provides some of the
        The power is unprecedented, as was                 uncertainty present in the investment
the financial crisis that led to its creation.95           community.103 The few aspects of the
Prior to the economic collapse of 2008, the                power that are clearly arguably make things
FDIC had been at odds with banks, mutual                   worse for would-be investors and creditors.
funds, the Treasury Department, and the                         The FDIC under the Dodd-Frank act is
Federal Reserve, over its lack of access to                not subject to any substantial judicial
information needed to evaluate risk. 96 “The               oversight.105 Further, the well-established
past financial crisis provided us with a                   laws applicable to creditor‟s rights do not
strong and sober reminder that the activities              necessarily apply in the event of a take-over
of large banks are often very complex and                  and liquidation.106 While the FDIC insists
opaque,” said FDIC Chairwoman Sheila                       that bankruptcy remains the first and
Bair. 97 In Bair‟s opinion, the FDIC should                preferred method of dissolving failing
have full access to information and                        companies, no set criteria exists as to when
personnel at financial institutions in order to            the new „heavy hand‟ of the FDIC will–or
make more precise evaluations of                           will not–be used.107
companies.98 The Dodd-Frank Act gives the                           The process begins with the
FDIC this access and more.99                               Secretary of Treasury making a
        Regulators intend the OLA to be a                  determination that the FDIC should be
rarely-used alternative to bankruptcy, and in              appointed as receiver.108 This determination
part, designed to prevent the type of chaos                is to be made only after consultation with at
associated with Lehman Bros.‟ 2008                         least two-thirds of the Federal Reserve and
bankruptcy filing.100 Only time will tell now              FDIC boards of directors, and after talking
that – at its almost sole discretion and                   to the President.109 Unlike the known and
without delay––the FDIC can recommend
91                                                         102
   Id.                                                         Greene, supra note 5.
92                                                         103
   Id.                                                         Sonnenschein Client Alert, supra note 3 (“The
   Id.                                                     FDIC‟s [OLA] is not limited to any fixed class of
   Id.                                                     companies”).
95                                                         104
   Sonnenschein Client Alert, supra note 3                     Id.
96                                                         105
   Associated Press, FDIC Gets Unfettered Ability to           Id.
Probe Banks (“Unfettered”), July 12, 2010, available           Bill Zielinski, FDIC Says Dodd-Frank Act Ends
at        “Too Big To Fail” Era, PROBLEM BANK LIST, Sep. 3,
gets-unfettered-ability-to-probe-banks.html.               2010 available at
   Id.                                                     says-dodd-frank-act-ends-to-big-to-fail-era-0187/.
98                                                         107
   Id.                                                         Unfettered, supra note 10.
99                                                         108
   Greene, supra note 5.                                       Id.
100                                                        109
    Sonnenschein Client Alert, supra note 5                    Id.

The Comment                                                                        Volume XIV, Issue I

familiar bankruptcy process, the OLA                   District Court can prevent liquidation from
scheme outlines no concrete “safe harbors,”            beginning immediately.118 Of course,
but is instead contingent upon the FDIC and            because the Dodd-Frank Act protects a
Federal Reserve being in agreement with                company‟s board of directors from liability
respect to a company‟s financial status.110            stemming from its decision to consent to
         Among the required findings, is that          receivership, such consent may prove easier
the company is “in default or danger of                to come by than it otherwise might have
default.”111 Such a conclusion is established          been.119
where the Treasury Secretary, upon meeting                     While the FDIC figures out if, when,
and conferring with the parties mentioned              and how to use the OLA, the financial sector
above, finds the following: (1) a bankruptcy           errs on the side of caution. Would-be
case is or „will likely‟ be underway, (2) the          investors and creditors seek the known and
company has taken on or „is likely‟ to take            avoid the unknown.120 Until the OLA is
on losses that will deplete all or substantially       better defined and more familiar, a great
all of its assets, (3) the company‟s assets            number of companies are “potentially”
equal or are „likely to‟ equal less than the           within the FDIC‟s grasp, making them less
obligations to its creditors, or (4) the               likely to play an active role the U.S.
company cannot or is „likely not‟ going to             economy.121
be able to pay its debts in the normal course
of business.112 The exact process for                               Second Circuit:
reaching the required consensus on this
                                                       “International law not yet frowning
finding, as well as the several others
mandated, has yet to be formed.113                        strongly enough on corporate
         The OLA also offers little forum for                       murder”
the company to oppose the appointment.114                           Daniel Cieslak, Interim Publicity
To implement the receivership, the Treasury                  Editor, Thomas M. Cooley Law Review
Secretary must first get an order from the
U.S. District Court for the District of                        According to the Second U.S. Circuit
Columbia, unless the company consents.115              Court of Appeals, the Alien Tort Statute
A company can challenge the decision at the            (ATS) does not provide jurisdiction over
District Court level, but if the District Court        claims brought against corporations because
does not reverse its own order within 24               “corporate liability is not a discernable–
hours, the process moves on.116 Even if the            much less universally recognized–norm of
company appeals to the U.S. Court of                   customary international law that we may
Appeals for the District of Columbia Circuit,          apply pursuant to [the Alien Tort
there is no stay of action while the appeal is         Statute].”122 The decision in Kiobel v Shell
pending.117 In short, once the Treasury
Secretary decides to appoint the FDIC as                   Id.
receiver, only swift self-reversal by the                  Greene, supra note 5.
110                                                    122
    Sonnenschein Client Alert, supra note 3.               Kiobel v Royal Dutch Petroleum Co., et al,
    Id.                                                F.2d      (2d Cir. 2010) (Nos. 06-4800-cv, 06-4876),
    Id.                                                available at (click blue
    Greene, supra note 5.                              opinion tab on left, enter either docket number,
    Id.                                                download pdf); see also Mark Hamblett, 2nd Circuit
    Id.                                                Rejects Corporate Liability in Alien Tort Cases,
    Sonnenschein Client Alert, supra note 3.           N.Y.L.J., September 20, 2010, available at
    Id.                                       (search “Kiobel”).

The Comment                                                                                Volume XIV, Issue I

Oil should have turned on whether the                         within Nigeria.129 Kiobel subsequently
proscription of murder, torture, and                          came to the United States and, in
conspiracy are universally recognized norms                   coordination with various human rights
of international law.123 Unfortunately,                       groups, filed her claim under the ATS.130
writing for the majority, U.S. Circuit Court                           On Friday, September 17, 2010, the
Judge Jose A. Cabranes improperly                             Second U.S. Circuit Court of Appeals issued
characterized the issue of protecting                         its ruling which dismissed all of Kiobel‟s
corporate accounts and good will from suit                    claims. Judge Cabranes reasoned as
under the ATS by way of the idea that                         follows: (1) the ATS can provide
corporate liability is not something that the                 jurisdiction for alleged violations of
“norms of international law” have yet to                      established norms of international law; (2)
embrace.124                                                   torture is such a violation; (3) murder is such
        Enacted in 1789 as part of the                        a violation; and (4) brutal violence against
original Judiciary Act, the ATS reads, “[t]he                 civilians for no reason other than money is
[federal] district courts shall have original                 such a violation. He concluded by reasoning
jurisdiction over any civil action by an alien                that because Shell Oil is a company and not
for a tort only, committed in violation of the                an individual, murder, torture, and violence
Law of Nations or a treaty of the United                      are not such violations in this case.131
States.”125 Modernly, the ATS has been                                 In 2004, the Supreme Court in Sosa
used to assert claims against those on                        v. Alvarez-Machain, reiterated the general
American soil for torts committed outside                     principle that only violations of universally
the United States, when those torts amount                    recognized norms of international law can
to a violation of universally accepted human                  create jurisdiction under the ATS.132 The
rights principles.126 The ATS is the main                     Second Circuit U.S. Court of Appeals,
vehicle by which aliens can establish human                   decided thirty years ago in Filartiga v.
rights claims in the United States for crimes                 Pena-Irala, that acts of torture violate
committed outside of the country.127                          customary norms of international law,
        In Kiobel, Esther Kiobel, on behalf                   regardless of whether those acts are state-
of herself, her deceased husband, and other                   sponsored.133 Every declaration, resolution,
deceased Nigerians, sued Shell Oil                            and published opinion on the topic
subsidiaries Royal Dutch Petroleum Co. and                    establishes that murder, torture, and violent
Shell Petroleum Development Company of                        conspiracies such as the one alleged in
Nigeria.128 Kiobel alleged that the Shell Oil                 Kiobel violate international law.134 It is
subsidiaries provided funding, protection,                    apparent that corporations, specifically oil
food, supplies, and other general support to
the Nigerian military. In exchange, the                       129
Nigerian military intimidated, beat, tortured,                    See EarthRights International,
and murdered Nigerian citizens who                   (click “legal” tab, then click
opposed Shell‟s presence and oil operations                   “Wiwa v Shell”) (Wiwa is the last name of an
                                                              additional Plaintiff in this case and prior to
                                                              consolidation, the litigation was commonly referred
                                                              to as “Wiwa v Shell”) (last visited Oct. 11, 2010).
123                                                           131
    See Kiobel, at 8.                                             Kiobel, supra note 1, at 48-49.
124                                                           132
    Id. at 16.                                                    See, e.g., Hamblett, supra note 1.
125                                                           133
    Alien Tort Statute, 28 U.S.C. § 1350, available at            See, e.g., Kiobel, supra note 1, concurrence at 2.
                                                              134                 See, e.g., “The Universal Declaration of Human
    Hamblett, supra note 1.                                   Rights,” available at (click “Human
    Id.                                                       Rights” tab on top, then click “Documents” tab on
    Id.                                                       left).

The Comment                                                                           Volume XIV, Issue I

corporations, can have a direct and tortuous                      In Kiobel, the Second U.S. Circuit
impact on the world and commit acts that                  Court of Appeals was given an opportunity
violate international legal norms.135 Judge               to provide an avenue for redress for Esther
Cabranes seemed to disagree, stating that                 Kiobel, and make Shell Oil answer for its
international law has not developed a set of              brutal and heinous international crimes.138
norms for “abstract entities,” such as the                Instead, Judge Cabranes somehow
Shell Oil Corporation.136                                 concluded that companies such as Shell Oil
        However, as Judge Pierre Leval                    have not yet been sufficiently identified by
wrote in Kiobel,                                          international law as „persons,‟ and,
                                                          therefore, are incapable of being held liable
        “The majority opinion deals a                     for tortuous activity under the ATS.139
        substantial blow to
        international law and its                                       Alternative Dispute
        undertaking to protect                                  Resolution and Fantasy Sports
        fundamental human rights.                                      Daniel Cieslak, Interim Publicity
        According to the rule my                                Editor, Thomas M. Cooley Law Review
        colleagues have created, one
        who earns profits by                                       Law schools across the country offer
        commercial exploitation of                        courses on mediation, arbitration,
        abuse of fundamental human                        facilitation, and almost every form of
        rights can successfully shield                    alternative dispute resolution (“ADR”).140
        those profits from victims‟                       Still, the lucrative and varying careers
        claims for compensation                           available to an attorney who is also trained
        simply by taking the                              in ADR seem less than obvious, given the
        precaution of conducting the                      “firm or shingle” mindset common to many
        heinous operation in the                          aspiring esquires.141 In taking a closer look
        corporate form. Without any                       at one of the many ADR niche markets, law
        support in either the                             students may begin to see just how many
        precedents or the scholarship                     options ADR has to offer.142
        of international law, the                                  The National Football League
        majority takes the position                       (“NFL”) is the most popular spectator sport
        that corporations, and other                      in the United States.143 “Fantasy Football,”
        juridical entities, are not                       is a statistical game played by 30 million
        subject to international law,                     NFL fans in the United States and
        and for that reason such
        violators of fundamental
        human rights are free to
        retain any profits so earned                          Kiobel, supra note 1, at 2.
        without liability to their                            Kiobel, supra note 1, at 48.
                                                              See e.g., Thomas M. Cooley Law School,
        victims.”137                             (last
                                                          visited Oct. 10, 2010).
                                                              See e.g., U.S. News: Money,
                                                          9/12/28/mediator-mediator.html (last visited Oct. 10,
    See, e.g., Save Our Gulf,        2010).
(last visited Oct. 11).                                        Id.
136                                                       143
    Kiobel, supra note 1, at 35.                               TV by the Numbers,
    Kiobel, supra note 1, concurrence at 1.               (search “NFL Ratings”) (last visited Oct. 10, 2010).

The Comment                                                                                  Volume XIV, Issue I

Canada.144 Fans join fantasy leagues often              is another site dedicated
with friends or co-workers, and the game is                      to fantasy dispute resolution: “Fantasy
based on the performances of actual NFL                          Dispute Resolution, LLC consists of a group
players.145 The object of the game for each                      of people with years of experience in both
“fantasy manager” is to draft and trade, with                    fantasy sports and dispute resolution.”153
the other fantasy managers in the league, the                    is yet another
NFL players they think will be most                              lawyer promulgated, fantasy-dispute
successful in each week of the NFL                               website.154 Michael Stein, a 2004 graduate
season.146 The rules for each fantasy                            of NYU Law, is the “Chief Justice” at
football league vary, and are enforced by the                    Fantasy Judgment, and also its creator.155
managers themselves and by the                                   Stein also handles “excess insurance claims
“commissioner”.147 The commissioner of a                         for one of the world‟s largest insurance
fantasy football league is usually one of the                    companies,” according to Fantasy
managers in the league, often the one who                        Judgment.156 Fantasy Judgment issues
started the league and collects the dues.148                     opinions on disputes complete with factual
         Like any good sport, fantasy football                   and procedural background, and an order
is rich in dispute and controversy.149 To                        from the court (i.e. “the Court hereby
ensure fairness and impartiality, more and                       decides that the trade between George and
more fantasy leagues are turning to, and                         Joker‟s Wild should be upheld as it is both
paying for, ADR.150 Marc Edelman, a                              fair in value and was made in compliance
graduate of the University of Michigan Law                       with the LOEG‟s rules”).157
School, began Sports Judge in 2007.151 The                       It may seem inane to some, but fantasy
website offers dispute resolution for $15 per                    football is an $800 million per year business,
dispute, or $100 for the entire season.152                       with league dues ranging from five dollars
Edelman works as a sports law professor in                       to $50,000.158 Fantasy managers stand to
addition to running Sports Judge.                                gain much from having disputes ruled on
                                                                 fairly.159 With that kind of money on the
                                                                 line, many of the high-priced players are
    Sean Gregory, Fantasy Football: Is it Going to               willing to pay for a reasonable resolution.160
Our Heads? TIME, August 31, 2009, available at (search “fantasy
football,” scroll until article appears in results) (last
visited Oct. 11, 2010).
    See e.g., Wikipedia,
can) (last visited Oct. 11, 2010).
146                                                              153
    Id.                                                              See,,
    Id. See also, Yahoo! Sports,                        (last visited Oct. 10, (for an                 2010).
example of a fantasy football interface) (last visited               See, Fantasy Judgment,
Oct. 10, 2010).                                         (last visited Oct.
    Id.                                                          10, 2010).
149                                                              155
    Gregory, supra note 5.                                           Id.
150                                                              156
    Id.                                                              Id.
151                                                              157
    Eriq Gardner, The Umpire, ABA JOURNAL,                           Id.
August 1, 2010, available at                                         See, e.g., Darren Rovell, Fantasy Football Time, (search “The Umpire”)                  CNBC.COM, August 25, 2010, available at
(last visited Oct. 10, 2010).                           (search “Fantasy Football
    See,,                                        Time”) (last visited Oct. 10, 2010).
                                                                 159 (last visited Oct. 10,                   Id.
2010).                                                               Id.

The Comment                                                                               Volume XIV, Issue I

         Fantasy football ADR begins with a                  the future.168 Law schools offer courses on
fantasy owner contacting the website.161 At                  how to become a skilled ADR professional,
Sports Judgment, for example, the site asks                  and thereby take advantage of a growing
for a description of the problem and all                     career field.169 Most lawyers won‟t “grow
applicable rules. The person against whom                    up” to resolve trade disputes in fantasy
the complaint is made is contacted so that he                football. But the emerging phenomena of
or she can respond with any additional                       mediation and facilitation make it more and
information, and the league commissioner is                  more likely that at least some of them will
encouraged to provide input.162 After                        end up as ADR professionals.170
hearing both sides of the story, the “judge or
justice” from the website makes a
determination from his or her neutral
position as to the fairness of the trade,
interpretation of the rule, distribution of
winnings, or whatever the case may
         Fantasy football ADR is not the
business in which most lawyers will end up
working.164 However, the use of ADR
processes such as mediation and facilitation
is on the rise.165 Various forms of these
processes exist, sometimes involving a
single ADR professional, sometimes
several.166 Courts almost notoriously point
civil litigants to the door, instructing them
to, “go to case evaluation,” or to “go to
mediation,” before clogging the docket with
their litanies of pre-trial motions.167
         Maybe judges are making the right
call. After all, in court, there are winners
and losers, whereas many forms of ADR
focus forward, trying to resolve the past
through an agreement to change conduct in

    See, Fantasy Judgment, (last visited on Oct.
10, 2010).
    See e.g., U.S. News: Money,
                                                             168               See e.g., CPR International for Conflict Prevention
9/12/28/mediator-mediator.html (last visited Oct. 10,        & Resolution, (last visited
2010).                                                       Oct. 10, 2010).
165                                                          169
    Id.                                                          See e.g., U.S. News: Money,
    See e.g., Harvey Slentz Attorney at Law,        (click “Civil Mediation”)           9/12/28/mediator-mediator.html (last visited Oct. 10,
(last visited Oct. 10, 2010).                                2010).
167                                                          170
    Id.                                                          Id.


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