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IRS Ruling Limits Exclusion to COD Income

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In their Taxation column, Ezra Dyckman and Daniel Stahl write: While cancellation of indebtedness generally results in ordinary income for the debtor (COD income), the Internal Revenue Code provides for several exceptions under which COD income can be excluded. Of particular importance for owners of real estate is Section 108(c), under which a taxpayer can elect to exclude COD income that results from the discharge of "qualified real property business indebtedness" under certain circumstances. The IRS recently interpreted one of the requirements for debt to constitute QRPBI in a manner that will cause debt secured by condominium units held for sale to fail to qualify.

A Step Toward Protection From Sexual Orientation Discrimination Under Title VII

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In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss a recent decision that indicates the court's willingness to expand Title VII to prohibit sexual orientation discrimination, or at least to view gender stereotyping more broadly, an issue the Supreme Court is likely to take up soon.

Streaming of Appellate Arguments at the First Department

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David B. Saxe and Danielle C. Lesser write: The First Department's reluctance to provide the level of transparency other state appellate courts and federal courts in New York provide sets it apart and, given its commercial prominence in resolving high profile disputes, its refusal to provide live streaming is an unfortunate loss for the legal community.

Mootness Protections May No Longer Preclude Review or Protect Counsel

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In her Distress Mergers and Acquisitions column, Corinne Ball writes: The importance of finality of bankruptcy court orders has been confirmed once again. Statutory mootness protecting §363 sales may not prevent or preclude an appeal or subsequent lawsuit, but the good faith purchaser and the transfer nevertheless continue to be insulated from appellate relief or collateral attack. The extent of that protection to other parties is unclear.

A Two-Step Climate Plan for Trump to Address U.S. Obligations

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International Environmental Law columnist Stephen L. Kass reviews the legal and "moral" obligations of the United States under the 1992 U.N. Framework Convention on Climate Change and the Paris Agreement and summarizes the multiple reasons why the United States must not simply walk away from those obligations. It then proposes a two-part climate plan that the Trump administration could undertake to meet those commitments without relying on the Obama Clean Power Plan that Trump pledged to rescind and without asking for continuing Congressional appropriations to help developing countries adapt to climate change.

Oral Settlements in Open Court Enforceable Without Follow-On Writing

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In his Settlement and Compromise column, Thomas E.L. Dewey writes: An agreement to settle a case is generally not binding until it is put into writing and either signed or entered as a court order. But as a recent case in the U.S. District Court for the Southern District of New York illustrates, there is an important exception: Agreements made between counsel in open court are enforceable, even if one party changes her mind before an anticipated written agreement is complete.

So You've Been Hacked: The Changing Landscape of Post-Data Breach Liability

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Joseph Facciponti and Joseph Moreno discuss the potential for regulatory and civil liability for corporations in the aftermath of a data breach.

Rising to the Challenge: Junior Attorneys in the Courtroom

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Michael Rader writes: Creating opportunities for young lawyers to take an active role in today's trials is not just a way of preparing the legal profession for the future. It is also an important strategy for serving clients in the present. Young lawyers often work more closely than senior lawyers with the witnesses who will testify and invariably bring an outstanding level of preparation in their eagerness for trial experience. Moreover, advocacy by young lawyers can be refreshing—and most importantly, persuasive—to judges and juries.

President Trump and the 25th Amendment

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Government and Election Law columnists Jerry H. Goldfeder and Myrna Pérez write that any attempt to remove a sitting president is obviously an extraordinary and constitutionally fraught act—especially pursuant to a provision whose central term is so opaque. What does it mean to be "unable" to discharge one's duties?

In Two Cases, Court Addresses Bankruptcy and Arbitration Provisions

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In her Western District Roundup, Sharon M. Porcellio writes that the court, in the context of a Title VII reverse-race discrimination claim, analyzed whether a corporation is an individual under a bankruptcy provision excepting plaintiff's claim from discharge. In another case, a judge refused to compel arbitration, finding the arbitration provisions substantively unconscionable in a decision chock full of interesting footnoted related discussions.

Seventh Circuit Holds DOJ Report Admissible on Municipal Liability Claim

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Section 1983 Litigation columnist Martin A. Schwartz writes that a municipality sued under §1983 may not be held liable solely because it employed a constitutional wrongdoer. Rather, the plaintiff must demonstrate that the violation of her constitutional rights was attributable to the enforcement of a municipal policy or practice. Recently, the admissibility of U.S. Department of Justice reports on the issue of municipal liability has been central to several cases.

The 14th Amendment and Our Present Day Democracy

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Peter Tom, Acting Presiding Justice of the Appellate Division, First Department writes: Our country's founding principle of equality, ingeniously crafted in the 14th Amendment, has evolved throughout the past century in many meaningful ways which our founding fathers could not have foreseen.

'Jack v. Martin' and State Law Roots of Equal Protection Theory

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Gerald J. Whalen, Presiding Justice of the Appellate Division, Fourth Department, writes: The great import and utility of the equal protection clause of the 14th Amendment cannot be overstated, and its accomplishments in spreading our founding ideals to every corner of this nation are well known. For these accomplishments, the federal courts deserve much credit. But it is also important to remember that, at one point in American history, it was the state courts, deploying state law, that lead the charge for equal and evenhanded justice.

Toward Liberty and Justice for All

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Claire P. Gutekunst, president of the New York State Bar Association, writes: In the past 150 years, the 14th Amendment has gone from needing fixing to having power and reach. In particular, the Supreme Court has relied on the due process clause in identifying and protecting fundamental rights involving personal liberty, including rights to privacy and to marry, and it has used the equal protection clause to protect individuals from disparate treatment based on suspect classifications such as race and gender.

New York: A Leader in Ensuring a Fair and Just Society

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Randall T. Eng, Presiding Justice of the Appellate Division, Second Department, writes: While the framers of the 14th Amendment were motivated by the goal of eliminating the racial discrimination that remained as a vestige of slavery, the New York State Human Rights Law reflects a recognition in our state that the principle of equal protection of the laws applies not only to race, but to all human characteristics that are immutable or otherwise not a proper basis for disparate treatment. With its expansive equal protection requirements, the state of New York is now in a position to be a leader in ensuring a more just and fair society.

Preserving Due Process and Preventing Wrongful Convictions

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Janet DiFiore, Chief Judge of the State of New York, discusses the due process clause and the requirement that states provide fair and just legal proceedings before any person may be deprived of life or liberty.

Scallops vs. Wind Energy: Consideration of Alternative Sites for Off-Shore Wind Farms

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Philip E. Karmel and J. Kevin Healy discuss a recent lawsuit brought by the scallop industry and its allies to challenge the Bureau of Ocean Management's lease to Statoil of a designated Wind Energy Area off the south shore of Long Island in an attempt to keep offshore turbines from being located in the vast ocean areas they claim to be important fishing grounds for scallops and squid.

Non-Lawyers Help to Bridge the Justice Gap

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Lawrence K. Marks, Chief Administrative Judge of the Unified Court System, writes: The aid of a trained non-lawyer can be immensely beneficial in guiding a confused litigant through filling out paperwork, providing moral support in a courtroom setting and giving valuable information regarding an individual's case. Non-lawyers can greatly improve a litigant's court experience and also affect outcomes.

Photo Essay: Naturalization Ceremony

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Magistrate Judge Peggy Kuo swore in 180 new citizens at a naturalization ceremony held at the Eastern District Courthouse on Cadman Plaza in Brooklyn on April 18, 2017.

Upholding Justice Close to Home

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Karen K. Peters, the Presiding Justice of the Appellate Division, Third Department, writes: Considering the small places where transformative cases began reminds us not only of the grave importance of every case to the individuals involved, but also of the role of state courts as the first bulwark for human rights.
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