New Law Review Comments Cover Social Networking, Wind Farms, Deceptive Trade Practices Act, Open Records Law, and Purchase Money Security Interests

Now available online, the recently published student comments in the Marquette Law Review cover a wide range of topics.  They include Nathan Petrashek’s comment on the impact of online social networking on Fourth Amendment privacy.  Since social networking sites like Facebook and MySpace attract both criminals (e.g., sexual predators, identity thieves) and the police who investigate them, the question whether users have a reasonable expectation of privacy in their voluntary disclosures under the well-established Katz test is poised to become a significant issue in the near future.  Petrashek relies on Fourth Amendment doctrine, as well as the First Amendment right of association and good public policy, to argue that user content should be shielded from police scrutiny in the absence of a warrant.

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

Bynum begins his analysis by describing Europe’s commitment to renewable energy and the highs and lows of the offshore windpower industry abroad.  He then explores the federal and state regulatory regimes that govern such projects in Wisconsin and observes that there are significant obstacles facing developers.  Bynum argues that we should learn from the European experience and concludes by offering several proposals, such as providing federal loan guarantees and creating a new state office of “offshore wind coordinator,” to promote the development of offshore wind projects in Wisconsin.

Donald Stroud’s comment, which garnered the Silver Quill Award last spring, focuses on the use of Wisconsin’s Deceptive Trade Practices Act (DTPA) to adjudicate simple breach of contract claims in commercial transactions.  He describes the Wisconsin Supreme Court’s decision in K & S Tool & Die Corporation v. Perfection Machinery Sales, Inc. (2007), which created a way for a contracting party to avoid legitimate but unfavorable terms (in K&S, a restrictive forum selection clause) in the contract by asserting a DTPA claim.  Stroud observes that indiscriminate applications of the DTPA may (1) disrupt expectations and risk allocations that are fairly negotiated into contracts, (2) conflict with UCC provisions, and (3) go beyond the intent behind DTPA.  He recommends the adoption of a “public interest standard” to distinguish between cases that fall within the ambit of the DTPA and those that should be governed by ordinary contract law.  He also suggests that the UCC should trump the DTPA whenever the two are in conflict.

Jessica Farley’s comment undertakes an examination of the conflict between Wisconsin’s open records law and the intellectual property interests of private companies that keep public records on behalf of municipalities in a copyrighted format.  Farley criticizes the state supreme court decision in WIREdata, Inc. v. Village of Sussex (2008), which held that a municipality complied with the state’s open records law when it provided the plaintiff with PDF versions of requested records, even though the data contained in such files were not manipulable and, therefore, useless to the plaintiff.  She observes that the court dodged the central issue in the case – whether the open records law requires a municipality to provide records in a more usable format when so requested – and argues that the statutory language and purpose of the open records law demand meaningful access to information.  Farley concludes that in light of this important public interest copyright must yield, and proposes an amendment to the law that would include usability as a factor for determining compliance with the open records law.

Last but not least, Rachel Helmers has written a comment critiquing federal courts’ treatment of negative equity that is rolled into a new car loan as a purchase money security interest (PMSI).  PMSI status not only grants super-priority on the collateral (here, the car) to the lender under the UCC, but it also protects the lender from cramdown under the 2005 amendments to the Bankruptcy Code.  Helmers argues that shielding the negative equity portion of a car loan from cramdown in a Chapter 13 bankruptcy does not effectuate congressional intent in the 2005 amendments and fails to treat similarly-situated creditors alike.  She urges courts to follow the “dual status” rule, which would separate the negative equity from the remaining amount of the loan used to purchase the car and treat only the latter as a PMSI.

This Post Has One Comment

  1. Mark Aalam

    The dual status rule is reflected in the Code at Section 506(a), however Congress clearly expressed its intent to exempt recently acquired vehicle loans (less than 910 days before bankruptcy filing date) when it enacted 1325(a) via the 2005 amendments to the Code, also known as the New Bankruptcy Law (which isn’t really so new anymore it is almost 6 years old). Mark Aalam, Bankruptcy Legal Center, San Diego, California.

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