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<title>Golden Gate University Law Review</title>
<copyright>Copyright (c) 2013 Golden Gate University School of Law All rights reserved.</copyright>
<link>http://digitalcommons.law.ggu.edu/ggulrev</link>
<description>Recent documents in Golden Gate University Law Review</description>
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<lastBuildDate>Fri, 03 May 2013 14:09:17 PDT</lastBuildDate>
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<title>Thirty Minutes or Less: The Inelasticity of Commuting</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss2/7</link>
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<pubDate>Mon, 29 Apr 2013 11:24:44 PDT</pubDate>
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	<p>This Comment urges the legislature to manipulate travel time in order to reduce GHGE (greenhouse gas emissions). Specifically, the legislature must incentivize mass transit by creating easier, quicker transit systems while simultaneously disincentivizing personal automobiles by increasing automobile travel time. By manipulating the travel time for various modes of travel, the legislature can effectively reduce GHGE while increasing individuals’ quality of life by creating an infrastructure that costs less and provides transportation systems not dependent on the automobile.</p>
<p>This Comment explains why the Sustainable Communities Act will fail to significantly reduce vehicle emissions, and this Comment proposes legislative action to reach the goals established in the Global Warming Solutions Act. Part I of this Comment discusses the relationship between the automobile and urban decentralization in America. Part II discusses legislation in California targeting automobile emissions, including regional smart-growth measures and state legislative actions targeted at reducing GHGE.</p>
<p>Part III explains the impacts on travel mode choice from urban design, temporal components, and individual components such as attitude, preferences, costs, and the duration of the trip. To demonstrate the power of time, Part III also explains the inelasticity of travel time, the relationship between primary and substitute goods, and how different transportation modes have different values of quality. Part IV proposes changes to make public transit a “close substitute” for the personal automobile and describes savings these policies can bring. Part V demonstrates the viability of these policies by discussing several cities with similar policies. The Conclusion calls the California legislature to act by making funding changes. In order to make significant reductions in GHGE from the transportation industry, as set out in the Global Warming Solutions Act and in the Sustainable Communities Act, the legislature must make meaningful funding changes that significantly reduce automobile infrastructure while making other modes of travel more viable options.</p>

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<author>John Andrew Brunner-Brown</author>


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<title>The Inability of Intellectual Property to Protect the New Fashion Designer: Why the ID3PA Should Be Adopted</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss2/6</link>
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<pubDate>Mon, 29 Apr 2013 11:24:43 PDT</pubDate>
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	<p>This Comment argues that Congress should adopt legislation that affords copyright protection to new fashion designers. The present state of the intellectual property regime leaves a new designer without any legal protection against blatant copying and can easily result in the designer’s business demise. Part I of this Comment provides a brief background of copyright law, as well as other doctrines of intellectual property law, and the limited protection these doctrines provide for fashion designs. Part I also explains how the limited protections afforded to fashion designs vis-à-vis intellectual property law are rarely, if ever, applicable to the new designer. Part II provides a more thorough history of the predecessor bills discussed above, including the recent ID3PA (Innovative Design Protection and Piracy Prevention Act) and IDPA, and explains why the IDPA ignores the needs of the new fashion designer. Part III claims that common arguments by those against the adoption of the ID3PA and future proposed legislation, including increased and frivolous litigation, are unwarranted. Ultimately, the enactment of the ID3PA or similar legislation would ensure a level playing field for new designers and the possibility that they too can realize the American Dream.</p>

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<author>Jessica Rosen</author>


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<title>Decoding Student Speech Rights: Clarification and Applica-tion of Supreme Court Principles to Online Student Speech Cases</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss2/5</link>
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<pubDate>Mon, 29 Apr 2013 11:24:42 PDT</pubDate>
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	<p>This Comment identifies the underlying principles of Supreme Court precedent governing student speech rights and applies those principles, as appropriate, to analyze online student speech. Part I provides a background of the four Supreme Court cases governing student speech. Four factors are identified from the Supreme Court decisions that continue to guide the analysis of student speech rights: sponsorship, location, effect, and content. Part II explores lower courts’ confusion in applying the four factors to online student speech cases. Finally, Part III examines the factors applicable to online student speech and provides guidance for future courts to analyze online student speech rights. As the predominant Supreme Court precedent, the Tinker standard should be used to analyze online student speech cases because it correctly addresses the effect of a student’s speech felt within the school. Further, three categories are presented that should guide courts’ assessment of the content of online student speech: outrageous or inherently offensive speech; speech that is focused or targeted toward the school, students, or faculty; and general school-related speech. Lower courts need a standard to analyze student speech, but until the Supreme Court specifically rules on online student speech, the principles set forth in previous rulings must be consistently applied.</p>

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<author>Courtney M. Willard</author>


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<title>Castle in the Cloud: Modernizing Constitutional Protections for Cloud-Stored Data on Mobile Devices</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss2/4</link>
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<pubDate>Mon, 29 Apr 2013 11:24:42 PDT</pubDate>
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	<p>This Comment argues that the current state of Fourth Amendment law vis-à-vis searching cloud-stored documents on a mobile device is untenable. Part I of this Comment defines cloud storage and cloud computing, and it provides background information on the Stored Communications Act (SCA). Part II discusses the intricacies of applying the SCA to computers and email, which is to date the best analog for applying the SCA to cloud computing. Part III details the legislative and judicial solutions to the problems raised by new technology and concludes that, while new legislation is the most desirable response, in the meantime courts must rethink their notions of what it means to search a mobile device. If either the legislature or the judiciary can reform a troubled Fourth Amendment jurisprudence as it relates to new technology, hope remains that reports of the Fourth Amendment’s death have been greatly exaggerated.</p>

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<author>Mark Wilson</author>


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<title>Equality Standards for Health Insurance Coverage: Will The Mental Health Parity and Addiction Equity Act End the Discrimination?</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss2/3</link>
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<pubDate>Mon, 29 Apr 2013 11:24:41 PDT</pubDate>
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	<p>Congress enacted the Mental Health Parity and Addiction Equity Act in 2008 to end discriminatory health insurance coverage for persons with mental health and substance use disorders in large employer health plans. Adopting a comprehensive regulatory approach akin to that of other civil rights laws, the Parity Act requires “equity” in all plan features, including cost-sharing, durational limits and, most critically, the plan management practices that are used to deny many families medically necessary behavioral health care. Beginning in 2014, all health plans regulated by the Affordable Care Act must also comply with parity standards, effectively ending the second-class insurance status of persons with these disorders. With the legal framework in place, this Article examines whether the Parity Act will achieve its promise of equitable health care coverage. It concludes that two structural features—the complexity of the Act’s standards and the health plan’s control of all data needed to assess compliance—render enforcement by consumers exceedingly difficult. Enforcement is further jeopardized by the federal regulators’ failure to articulate a standard to implement the most fundamental aspect of the law—the required scope of behavioral health services—and to provide sufficient guidance on the law’s most contentious provision—regulation of plan management practices. To address these enforcement limitations, this Article provides a detailed explanation of the Parity Act’s standards, offers interpretive guidance to resolve key questions, and recommends implementation strategies to enhance consumer notification and demonstration of parity compliance. Additional, yet modest, compliance requirements are needed to ensure that the Parity Act achieves its remedial goal.</p>

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<author>Ellen Weber</author>


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<title>Table of Contents</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss2/2</link>
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<pubDate>Mon, 29 Apr 2013 11:24:40 PDT</pubDate>
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<title>Masthead</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss2/1</link>
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<pubDate>Mon, 29 Apr 2013 11:24:39 PDT</pubDate>
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<title>United States v. Nosal: Separating Violations of Employers&apos; Computer-Use Policies from Criminal Computer Hacking Invations</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/10</link>
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<pubDate>Tue, 26 Feb 2013 11:41:55 PST</pubDate>
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	<p>Computer crimes are a worldwide threat. Any individual with access to a computer may become victim to a computer crime. In the summer of 2010, the Pentagon alone received over six million hacking and security threats per day, or 250,000 an hour. One of many measures to prevent computer crimes is the Computer Fraud and Abuse Act (CFAA), a federal statute that prohibits the unauthorized access of a computer or computer data, such as when a hacker obtains bank account information from a financial institution’s network. There is currently disagreement among appellate courts as to the scope and application of the CFAA. Some circuits apply the CFAA only to hacking crimes, while others include violations of a webpage’s terms of service or an employer’s computer-use policy.</p>
<p>A violation of an employer’s computer-use policy could be as minor as checking a personal Facebook page or personal bank account while at work. On the other hand, the violation of an employer’s computer-use policy could be more egregious, as in the case of <em>United States v. Nosal</em>. In <em>Nosal</em>, an en banc panel of the Ninth Circuit examined the scope of the CFAA as applied to an employee who used a work computer for personal purposes, addressing the issue of whether a violation of an employer’s computer-use policy can be considered criminal hacking.</p>

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<author>Colette Thomason</author>


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<title>Maya v. Centex: Potential Liabilities for Developers Related to Speculative Injuries</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/9</link>
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<pubDate>Tue, 26 Feb 2013 11:41:54 PST</pubDate>
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	<p>The Ninth Circuit’s decision in <em>Maya v. Centex</em> addresses the impacts of the sub-prime mortgage crisis on fiscally responsible homeowners. <em>Maya</em> is the first appellate decision to potentially permit homeowners to assert claims against developers for injuries related to market-wide decline in property values. In <em>Maya</em>, the Ninth Circuit decided only the narrow question of whether plaintiff-homeowners have constitutional standing to pursue claims against defendant-developers for injuries that were allegedly caused by the defendants’ high-risk marketing and financing behaviors. Although the Ninth Circuit did not resolve the plaintiffs’ claims, it held that the plaintiffs have constitutional standing to assert their claims against the defendants. In doing so, the Ninth Circuit may have extended liability to developers for speculative injuries that may not be fairly traceable to the developers’ challenged conduct.</p>

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<author>Alexander Cheung</author>


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<title>Ninth Circuit Rules Against Scientology Ministers&apos; Forced-Labor Claims in Headley v. Church of Scientology International</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/8</link>
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<pubDate>Tue, 26 Feb 2013 11:41:53 PST</pubDate>
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	<p>In <em>Headley v. Church of Scientology International</em>, the Ninth Circuit faced a particularly sensitive question involving the limits of the TVPA and the application of the ministerial exception. In <em>Headley</em>, former ministers brought TVPA forced-labor claims against the Church of Scientology (the “Church”). The Church argued before the district court that the plaintiffs’ labor was not forced, and that the ministerial exception applied to effectively bar the plaintiffs’ claims. The district court agreed, holding that the instances of physical abuse alleged did not raise a triable issue of fact as to the Headleys’ forced-labor claims. The court also waded into constitutional waters, finding that the ministerial exception formed a second bar to the plaintiffs’ forced-labor claims.</p>
<p>On appeal, the Ninth Circuit agreed with the district court’s position that courts may not scrutinize certain aspects of the minister-church relationship. Nevertheless, the Ninth Circuit avoided the question of whether the First Amendment’s ministerial exception—usually invoked only in employment-law contexts—also applies to forced-labor claims under the TVPA. Instead, the court simply looked to the text of the TVPA to find that the plaintiffs’ labor was not, within the meaning of the statute, forced "by means of’ serious harm, threats, or any other improper methods.” In affirming the district court’s grant of summary judgment, the Ninth Circuit found that the Headleys had voluntarily joined and worked for the Church because they believed in the Church’s doctrine and in the personal commitments they made to the Church. Pointing to the Headleys’ ability to leave the Church, and their failure to do so for well over a decade, the court found that the plaintiffs simply were not forced to remain in their respective conditions.</p>

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<author>Jeffrey W. Tye</author>


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<title>An Argument for Child Pornography Victim Restitution in the Ninth Circuit: United States v. Kennedy</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/7</link>
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<pubDate>Tue, 26 Feb 2013 11:41:52 PST</pubDate>
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	<p>This Note argues that the Ninth Circuit erred in <em>United States v. Kennedy</em> by vacating restitution damages for the victims to be paid by the possessor of their images, because denying victims such restitution offends traditional understandings of the limits of proximate cause and the legislative intent behind § 2259.44 There are alternative legal tests currently used by other circuits that establish proximate cause in child-pornography-possessor cases that the Ninth Circuit should have applied in <em>Kennedy</em> to ensure that those responsible for harming children would not escape due liability.</p>
<p>Part I of this Note explains why the possession of child pornography falls within the scope of § 2259, which requires mandatory restitution awards for victims. Part II explains why the majority of courts have found that proximate cause is necessary before such awards can be ordered. Part III explores the existing circuit split regarding whether proximate cause can be established in cases where a defendant is a mere possessor of child pornography and describes the various tests for establishing such cause. Part IV provides the facts and procedural history of <em>United States v. Kennedy</em> and explains the reasoning behind the court’s decision to overturn the restitution order. Part V argues that the Ninth Circuit erred in its holding in <em>Kennedy</em> because proximate cause was established in the case and that the amount of restitution sought was proper under § 2259.</p>

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<author>Amber Pruitt</author>


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<title>Long Live the King: United States v. Bagdasarian and the Subjective-Intent Standard for Presidential &quot;True-Threat&quot; Jurisprudence</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/6</link>
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<pubDate>Tue, 26 Feb 2013 11:41:51 PST</pubDate>
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	<p>This Note argues that the Ninth Circuit found the proper balance between protecting speech and the President by interpreting the true-threats doctrine and the construction of presidential-threat statutes to require a subjective intent to threaten, in addition to one of the traditional objective standards for true threats. The application of a solely objective standard to threats against the President leads to unsettling results that punish speech without need. Harmless but misguided individuals have been held criminally responsible for ludicrous statements based on the sensitivities of the fabled “reasonable person,” regardless of the speakers’ actual motivations for their statements. More importantly, this nation’s historic dedication to free expression demands a policy under which citizens need not whisper when referring to the Chief Executive they elected. Even when the language used in reference to the President is crude, violent or racist, it must nevertheless be allowed into the marketplace of ideas. As Noam Chomsky said, “If we don’t believe in free expression for people we despise, we don’t believe in it at all.”</p>
<p>In Part I, this Note introduces the primary presidential-threat statutes and explains why Presidents and presidential candidates should be treated the same for the purposes of true-threat jurisprudence. Part II traces the history of the true-threats doctrine and introduces the relevant tests of intent developed among the federal courts for evaluating presidential true threats. Part III discusses <em>Bagdasarian</em>, its procedural history, and the Ninth Circuit’s interpretation and application of the true-threats doctrine. Part IV explains the shortcomings of using only an objective test for measuring true threats. Next, Part V argues the strengths of adding a subjective-intent element to the doctrine, and the special status of the President that necessitates its inclusion. Finally, this Note concludes by arguing that when the subject of a threat is the President or a candidate for the office, despite precedent to the contrary, the Ninth Circuit in <em>United States v. Bagdasarian</em> correctly interpreted the true-threat doctrine.</p>

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<author>Kyle A. Mabe</author>


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<title>If You Give a Mouse a Cookie: California&apos;s Section 11135 Fails to Provide Plaintiffs Relief in Darensburg v. Metropolitan Transportation Commission</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/5</link>
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<pubDate>Tue, 26 Feb 2013 11:41:50 PST</pubDate>
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	<p>This Note examines <em>Darensburg</em> and the evidentiary problems faced by plaintiffs entangled in the bus-versus-rail controversy that are inherent to disparate-impact litigation. Part I discusses the factual background of <em>Darensburg</em> and relevant federal and state law concerning claims of both intentional and disparate-impact discrimination. Part II examines disparate-impact jurisprudence in the context of the unequal distribution of municipal services as background to the complexity of the issues presented in <em>Darensburg</em>. Part III analyzes the <em>Darensburg</em> opinion in light of that background and shows that the burden-of-proof issues faced by plaintiffs are illustrative of the lack of effective guidance to plaintiffs seeking relief from institutional disparities.</p>

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<author>Kate Baldridge</author>


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<title>Introduction</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/4</link>
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<pubDate>Tue, 26 Feb 2013 11:41:49 PST</pubDate>
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<author>The Hon. Morgan Christen</author>


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<title>Preface</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/3</link>
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<pubDate>Tue, 26 Feb 2013 11:41:49 PST</pubDate>
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<author>Kate Baldridge</author>


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<title>Table of Contents</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/2</link>
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<pubDate>Tue, 26 Feb 2013 11:41:48 PST</pubDate>
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<title>Masthead</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol43/iss1/1</link>
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<pubDate>Tue, 26 Feb 2013 11:41:47 PST</pubDate>
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<title>Mediating Disputes Arising Out of Troubled Companies - Do It Sooner Rather than Later</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss4/11</link>
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<pubDate>Wed, 08 Aug 2012 15:12:26 PDT</pubDate>
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	<p>Over the last several years, there has been much academic debate on the subject of “vanishing trials”—whether the settlement rate in bankruptcy and other courts is accelerating, and whether that is a healthy trend for our justice system. A more interesting question is why disputes in chapter 11 cases are not resolved sooner. Why does it take so much time and so much money for parties to settle their differences and arrive at a consensual chapter 11 plan?</p>
<p>Cite as 42 Golden Gate U. L. Rev. 661 (2012).</p>

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<author>The Hon. Randall J. Newsome</author>


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<title>Obtaining the Release of Grand Jury Evidence in Ponzi Cases</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss4/10</link>
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<pubDate>Wed, 08 Aug 2012 15:12:25 PDT</pubDate>
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	<p>Evidence that law enforcement authorities obtain through the grand jury process is generally secret. Nevertheless, case law can provide a powerful basis for a trustee, a receiver or any party in a Ponzi case to obtain evidence that the government has in its possession as a result of its investigation of a Ponzi scheme. This Article considers the extent to which parties in a Ponzi scheme insolvency proceeding might be able to obtain evidence presented in a criminal grand jury proceeding relating to the Ponzi scheme.</p>
<p>Cite as 42 Golden Gate U. L. Rev.657 (2012).</p>

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<author>The Hon. Steven Rhodes</author>


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<title>Overcoming Administrative, Procedural and Evidentiary Hurdles in Ponzi Scheme Litigation</title>
<link>http://digitalcommons.law.ggu.edu/ggulrev/vol42/iss4/9</link>
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<pubDate>Wed, 08 Aug 2012 15:12:24 PDT</pubDate>
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	<p>The unfortunate reality that comes with a Ponzi scheme case in bankruptcy is a mass of deceived unsecured creditors clamoring for their money back, and few, if any, present assets within the bankruptcy estate with which to pay them. The sheer size of most Ponzi schemes cases necessarily presents unique evidentiary, procedural and administrative challenges to professionals seeking to sort out the failed Ponzi enterprise. Ponzi scheme cases are riddled with litigation, which generally falls into four categories: (1) litigation against the Ponzi scheme operator(s), (2) litigation against parties who enabled the scheme to continue (such as professionals), (3) litigation to recover assets (such as legitimate accounts receivable or proceeds from the sale of property), and (4) avoidance actions against those who received property from the Ponzi scheme. This fourth category (and sometimes the third) may involve hundreds of defendants, who may be located throughout the country (or even the world).</p>
<p>This Article provides strategic suggestions and practical applications for Ponzi scheme litigation, including filing a procedures motion, seeking substantive or administrative consolidation, and utilizing and overcoming evidentiary hurdles.</p>
<p>Cite as 42 Golden Gate U. L. Rev. 641 (2012).</p>

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<author>Sharon Z. Weiss et al.</author>


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