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Ranking Season: Combating Commercial Banks' Systemic Discrimination of Consumers American Business Law Journal (IF 1.533) Pub Date : 2022-04-06 Nizan Geslevich Packin, Srinivas Nippani
The recent disbursement of COVID-19 pandemic-related federal relief funds to businesses and individuals under the CARES Act exposed significant problems in the U.S. system of money and payments. U.S. banks' wealth maximization objectives clashed with the federal government's goals of diversity, equity, and inclusion (DEI). The discriminatory, self-interested behavior of banks, which essentially served
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Text Mining for Bias: A Recommendation Letter Experiment American Business Law Journal (IF 1.533) Pub Date : 2022-04-06 Charlotte S. Alexander
This article uses computational text analysis to study the form and content of more than 3000 recommendation letters submitted on behalf of applicants to a major U.S. anesthesiology residency program. The article finds small differences in form and larger differences in content. Women applicants' letters were more likely to contain references to acts of service, for example, whereas men were more likely
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Who's Keeping Score?: Oversight of Changing Consumer Credit Infrastructure American Business Law Journal (IF 1.533) Pub Date : 2022-04-06 Janine S. Hiller, Lindsay Sain Jones
Access to credit in the United States is contingent upon an individual obtaining the “right” credit score. Yet the opaque scoring system makes it nearly impossible for an individual to break out of a cycle of low credit ratings and participate in the benefits of the American economy. Partially as a response, alternative credit rating products now use personal nonfinancial data for automated credit
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Forfeiting IP American Business Law Journal (IF 1.533) Pub Date : 2022-04-06 Deepa Varadarajan
Can IP rights be lost? That is, once IP rights are acquired, what—if anything—must owners do to keep those rights or risk forfeiting them. The answer varies widely across the IP landscape and has important consequences for follow-on innovation, competition, and the public domain. This article takes the first close look at forfeiture mechanisms throughout the five major IP regimes—utility patent, trade
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Legal Strategy Disrupted: Managing Climate Change and Regulatory Transformation American Business Law Journal (IF 1.533) Pub Date : 2021-12-10 Stephen Kim Park
The effects of climate change on the natural, economic, political, and social environments of business will be broad and substantial. The legal environment of business is not immune from these forces. In fact, as this article explores, law is both a necessary means to address climate change disruption and itself a source of disruption. Regulatory measures to buffer the shocks of climate change and
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The Management and Oversight of Human Rights Due Diligence American Business Law Journal (IF 1.533) Pub Date : 2021-12-10 David Hess
The COVID-19 pandemic showed how vulnerable workers in global supply chains are to adverse human rights impacts. Protecting such workers must be a primary policy goal in the efforts to “build back better” from the crisis, and businesses conducting human rights due diligence (HRDD) is a primary means to do so. In Europe, there is a fast-moving trend toward legislatively mandating HRDD, and there is
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Leading a Healthier Company: Advancing a Public Health Model of Ethics and Compliance American Business Law Journal (IF 1.533) Pub Date : 2021-12-10 Todd Haugh
This article advances a public health model of ethics and compliance. It argues that corporate leaders should draw from the successful lessons of public health to promote ethical behavior more effectively in their companies. With its attention to data-driven risk mitigation and behaviorally cognizant processes, a public health model can move compliance from the faulty assumption on which it is based
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Strategic Surrogates or Sad Sinners: U.S. Taxation of Bartering in Digital Services American Business Law Journal (IF 1.533) Pub Date : 2021-12-10 Mark J. Cowan, Joshua Cutler, Ryan J. Baxter
The COVID-19 pandemic caused both a surge in technology use and a deterioration in government finances. At the same time, big tech companies are under scrutiny by lawmakers for tax avoidance, antitrust issues, and other concerns. These realities call for governments to reassess tax policy toward tech companies and for tech companies to reassess legal strategy toward taxes. State and federal governments'
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Reforming Dodd-Frank from the Whistleblower's Vantage American Business Law Journal (IF 1.533) Pub Date : 2021-09-29 Justin W. Evans, Stephanie R. Sipe, Mary Inman, Carolina Gonzalez
Whistleblowing is a critical component of corporate integrity and economic stability in the United States. It is unsurprising, then, that policy makers and observers have directed considerable attention to the improvement of whistleblower laws. This article assesses potential improvements to the most visible recent addition to the federal whistleblower regime—the Dodd-Frank Act, passed in the wake
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Is Legal Harmonization Always Better? The Counter-Case of Utility Models American Business Law Journal (IF 1.533) Pub Date : 2021-09-29 Daniel R. Cahoy, Lynda J. Oswald
Policy makers and international institutions have long maintained that the global business environment is best supported when countries harmonize by adopting substantially uniform legal structures. This is particularly true in the context of intellectual property rights. When such national systems are similar, we believe that investment is undergirded and market participation is facilitated. However
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The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison American Business Law Journal (IF 1.533) Pub Date : 2021-09-29 Rachel Chambers, Gerlinde Berger-Walliser
Imposing legal liability on corporations for their involvement in human rights violations remains problematic. In the United States, civil liability in such circumstances developed in a series of Alien Tort Statute cases. This evolution came to an abrupt end with the cases of Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank. As corporate human rights litigation declined in the United States
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Regulation of Crypto: Who Is the Securities and Exchange Commission Protecting? American Business Law Journal (IF 1.533) Pub Date : 2021-09-29 Carol R. Goforth
SEC v. Telegram and SEC v. Kik, both decided in 2020, establish some ground-breaking rules about how the federal securities laws apply to cryptotransactions. In both cases, the court concluded that a large, reputable social media company had conducted a crypto offering in violation of federal law. In neither case was fraud or other criminal conduct an issue; the sole problem was failure to register
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Does Conjoint Analysis Reliably Value Patents? American Business Law Journal (IF 1.533) Pub Date : 2021-07-23 Bernard Chao, Sydney Donovan
Modern technology products are often covered by thousands of patents. Yet awards for a single component have averaged a surprisingly high 9.98% of the infringing product's price. To curb such disproportionate awards, the law insists that damages reflect the contribution made by the patent. But determining how to apportion damages in this way has proved to be elusive. One emerging technique that appears
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Damages for Breach of a Forum Selection Clause American Business Law Journal (IF 1.533) Pub Date : 2021-07-23 Tanya J. Monestier
When a party breaches a forum selection clause, a court will normally dismiss the action, therefore forcing the breaching party to re-file in the appropriate forum, or the court will transfer the proceedings to the chosen court. Either way, the nonbreaching party appears to have gotten what he wanted: litigation to proceed before the designated court. However, to get there, the nonbreaching party had
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Protecting Third Parties in Contracts American Business Law Journal (IF 1.533) Pub Date : 2021-07-23 Kishanthi Parella
Corporations routinely impose externalities on a broad range of non-shareholders, as illustrated by several unsuccessful lawsuits against corporations involving forced labor, human trafficking, child labor, and environmental harms in global supply chains. Lack of legal accountability subsequently translates into low legal risk for corporate misconduct, which reduces the likelihood of prevention. Corporate
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Deconstructing Fallacies in Products Liability Law to Provide a Remedy for Economic Loss American Business Law Journal (IF 1.533) Pub Date : 2021-07-23 Alissa del Riego
For years, products liability law has failed to provide a remedy for consumers who suffer financial injury as a result of purchasing defective products manufacturers place and keep in the marketplace. The economic loss rule and defect manifestation requirements have, to date, foreclosed products liability claims when consumers suffer only economic injury and severely hampered recovery through other
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Aligning National Bank Priorities with the Public Interest: National Benefit Banks and a New Stakeholder Approach American Business Law Journal (IF 1.533) Pub Date : 2021-04-28 Lindsay Sain Jones
Banks have particular characteristics that set them apart from other business entities, including being more highly leveraged, benefiting from government safety nets, and generating massive negative externalities when they fail. These attributes mean that in addition to shareholder interests, bank directors should be allowed to carefully consider the interests of nonshareholders, such as creditors
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Caremark Compliance for the Next Twenty‐Five Years American Business Law Journal (IF 1.533) Pub Date : 2021-04-28 Robert C. Bird
One of the most influential cases in corporate governance is In re Caremark International Inc. Derivative Litigation (Caremark). In 1996, Caremark imposed a novel duty on boards of directors to make a good faith attempt to implement and exercise oversight over obligations leading to liability. Breach of this minimal duty has been difficult for plaintiffs to plead and prove, and the case law is littered
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Free Agency for the Front Office: How Data Analytics and Noncompete Agreements Threaten to Disrupt Competitive Balance in U.S. Professional Sports Leagues American Business Law Journal (IF 1.533) Pub Date : 2021-04-28 Nathaniel Grow
U.S. professional sports teams are increasingly relying on sophisticated forms of data analysis to identify potential areas of competitive advantage over their league rivals. Indeed, emerging evidence suggests that the most sophisticated teams in this area are using the insights that they derive from data analytics to establish durable and significant gains over their competition on the playing field
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Up in Smoke: International Treaty Obligations and Marijuana Reform in the United States American Business Law Journal (IF 1.533) Pub Date : 2021-04-28 Kevin J. Fandl
As the number of U.S. states that seek to loosen restrictions on marijuana rapidly increases, a heated debate over state and federal regulation has ignited. But an important component of that debate has been largely absent—are these state efforts placing the United States in violation of its international treaty obligations? This article attempts to answer this question by tracing the history of
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The Quality of Information Provided by Dual‐Class Firms American Business Law Journal (IF 1.533) Pub Date : 2020-10-29 Dov Solomon, Rimona Palas, Amos Baranes
When Google went public with a dual‐class capital structure in which shares owned by the founders confer greater voting rights than shares issued to public investors, its cofounders, Larry Page and Sergey Brin, promised to provide investors with high‐quality information about the company. Using the words of Warren Buffett, the chairman and CEO of Berkshire Hathaway, another dual‐class firm, they promised
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Anticompetitive Employment American Business Law Journal (IF 1.533) Pub Date : 2020-10-29 Gregory Day
Scholars, antitrust agencies, and policy makers have historically paid little attention to anticompetitive practices in labor markets. This was largely due a misconception that antitrust law is meant to govern conventional markets in which goods and services trade, rather than govern labor markets. Antitrust law may also offer a poor remedy to redress employers who enter no‐poaching agreements or otherwise
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The Trouble with Boycotts: Can Fossil Fuel Divest Campaigns Be Prohibited? American Business Law Journal (IF 1.533) Pub Date : 2020-10-29 Inara Scott
Organizations like 350.org, Insure Our Future, and DivestInvest are leading campaigns to urge boycott and divestment from fossil fuels as a means to address climate change. Increasingly, they are finding success, from individual consumers to massive pension and sovereign wealth funds. However, as organized group boycotts, divest campaigns may be vulnerable to prosecution under antitrust law. This article
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Squeezing linkLine: Rethinking Recoupment in Price Squeeze Cases American Business Law Journal (IF 1.533) Pub Date : 2020-07-20 Patrick Kennedy
The Supreme Court's decision in Pacific Bell Telephone Co. v. linkLine Communications, Inc. removed an important tool from competition regulators’ arsenals. Not only did the Court express skepticism about the existence of a price squeeze cause of action, but it also applied the economically mismatched predatory pricing test to price squeeze cases. Unfortunately, the lack of clarity on linkLine's reach
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Enhancing Rescue in Chapter 11: Lessons from Reform Efforts in the United Kingdom American Business Law Journal (IF 1.533) Pub Date : 2020-07-20 Robert J. Landry
This is a dynamic time for insolvency law. Many jurisdictions have made or are considering reforms to their insolvency regimes. The United Kingdom has proposed a new standalone restructuring mechanism that incorporates many attributes of Chapter 11, including a cross‐class cram down and the absolute priority rule. A distinctive feature of the UK proposal is the infusion of judicial discretion permitting
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Case Baiting American Business Law Journal (IF 1.533) Pub Date : 2020-07-20 Kathryn Kisska‐Schulze, Corey Ciocchetti, Ralph Flick
In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e‐commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges
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An Empirical Study of Patent Grant Rates as a Function of Race and Gender American Business Law Journal (IF 1.533) Pub Date : 2020-07-20 W. Michael Schuster, R. Evan Davis, Kourtenay Schley, Julie Ravenscraft
In this article we examine the rate at which patent applications are granted as a function of the inventor's race and gender. Empirical analysis of more than 3.9 million U.S. applications finds minority and women applicants are significantly less likely to secure a patent relative to the balance of inventors. Further analysis indicates that a portion of this bias is introduced during prosecution at
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NAFTA 2.0 and LGBTQ Employment Discrimination American Business Law Journal (IF 1.533) Pub Date : 2020-03-18 Alex Reed
Because federal law does not expressly prohibit employment discrimination on the basis of sexual orientation or gender identity, LGBTQ Americans were thrilled to learn that a preliminary draft of the United States–Mexico–Canada Agreement (USMCA) included a provision (the Provision) requiring each nation to enact LGBTQ‐inclusive nondiscrimination laws. That excitement promptly turned to despair, however
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Can Common Business Practices Ever Be Anticompetitive? Redefining Monopolization American Business Law Journal (IF 1.533) Pub Date : 2020-03-18 Konstantinos Stylianou
For most of its modern history, antitrust law distinguished between normal competition and monopolization by looking for merit, legitimate business justifications, or efficiencies in the challenged business conduct. These proxies were seen as appropriate because they served antitrust law's welfare objectives well. However, the universal adoption of these proxies has overshadowed significant shortcomings
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The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law American Business Law Journal (IF 1.533) Pub Date : 2020-03-18 Kenneth Khoo, Jerrold Soh
It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange
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Regulatory Categorization and Arbitrage: How Daily Fantasy Sports Companies Navigated Regulatory Categories Before and After Legalized Gambling American Business Law Journal (IF 1.533) Pub Date : 2020-03-18 John T. Holden, Christopher M. McLeod, Marc Edelman
This article uses the context of daily fantasy sports (DFS) to analyze how companies use strategic categorization in regulatory arbitrage. Recent actions by two leaders in the DFS industry, DraftKings and FanDuel, provide an ideal context to study this issue. DraftKings and FanDuel categorized themselves differently to different audiences at different times in a manner that evaded categorization as
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How Behavioral Science Ultimately Fails Retirement Savers: A Noble Experiment American Business Law Journal (IF 1.533) Pub Date : 2019-11-21 Dana M. Muir
Behavioral scientists boast that their insights have increased savings in 401(k) plans. Evidence shows that careful use of default decision settings and nudges can prevent decisional errors and encourage behavior that aligns with public policy while retaining individual power of choice. Indeed, even the Swedish National Academy of Sciences highlighted the effect of his behavioral science work on retirement
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Bribing the Machine: Protecting the Integrity of Algorithms as the Revolution Begins American Business Law Journal (IF 1.533) Pub Date : 2019-11-21 Philip M. Nichols
In the Industrial Revolution, machines took on the burden of physical labor; in the Big Data Revolution, machines are taking on the tasks of making decisions. Algorithms are the rules and processes that enable machines to make those decisions. Machines will make many decisions that affect general well‐being. This article addresses a threat to the efficacy of those decisions: the intentional distortion
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Trade Secrecy Injunctions, Disclosure Risks, and eBay's Influence American Business Law Journal (IF 1.533) Pub Date : 2019-11-21 Deepa Varadarajan
Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis
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New Battles and Battlegrounds for Mandatory Arbitration After Epic Systems, New Prime, and Lamps Plus American Business Law Journal (IF 1.533) Pub Date : 2019-11-21 Stephanie Greene, Christine Neylon O'Brien
The Supreme Court's recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems Corporation v. Lewis upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus, Inc. v. Varela
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The Convergence of Financial and ESG Materiality: Taking Sustainability Mainstream American Business Law Journal (IF 1.533) Pub Date : 2019-08-20 Ruth Jebe
Sustainability reporting can be seen as an attempt to bring improved environmental, social, and governance (ESG) practices to mainstream business. However, this movement to mainstream is hampered by the disconnect between financial and ESG information. Both reporting streams use the concept of materiality to shape firms’ disclosure obligations, but the term carries different meanings for different
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The Controlling Shareholder Enforcement Gap American Business Law Journal (IF 1.533) Pub Date : 2019-08-20 Itai Fiegenbaum
The regulation of controlling shareholder related‐party transactions is one of corporate law's animating concerns. A recent Chancery Court decision extends the double approval framework endorsed by the Delaware Supreme Court—independent director committees and a majority of the minority shareholders—to non‐freezeout transactions. This article explains why the Chancery Court's innovation does not decrease
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Data Analytics and the Erosion of the Work/Nonwork Divide American Business Law Journal (IF 1.533) Pub Date : 2019-08-20 Leora Eisenstadt
Numerous statutes and common law doctrines conceive of a dividing line between work time and nonwork time and delineate the activities that must be compensated as work. While technological innovations and increasing desires for workplace flexibility have begun to erode this divide, it persists, in part, because of the ways in which the division protects employers and employees alike. Nonetheless, the
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Incomplete Clearinghouse Mandates American Business Law Journal (IF 1.533) Pub Date : 2019-08-20 Colleen M. Baker
In the 2007–08 financial crisis, over‐the‐counter (OTC) derivatives triggered the collapse of colossal financial institutions. In response, global policy makers instituted clearinghouse mandates. As a result, all standardized OTC derivatives must now use clearinghouses, and global financial market stability now depends upon these institutions. Yet certain underlying legal and regulatory structures
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Litigation Migrants American Business Law Journal (IF 1.533) Pub Date : 2019-05-20 Charlotte S. Alexander
Civil law is enforced primarily via private litigation. One characteristic of private enforcement is that litigation levels tend to cycle between periods of boom and bust. This article builds a theory for explaining this fluctuation, proposing that plaintiffs’ attorneys can be understood as economic migrants. Just as workers cross borders to find jobs, lawyers “move” across case types and jurisdictions
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Equating U.S. Tax Treatment of Dividends and Capital Gains for Foreign Portfolio Investors American Business Law Journal (IF 1.533) Pub Date : 2019-05-20 Stanley Veliotis
The U.S. tax law equates the tax rate on dividends and long‐term capital gains on stock owned by U.S. citizens and residents. However, the taxation of these two types of rewards in the hands of foreign portfolio investors remains dramatically different from each other, with the capital gain being fully exempt. Several reasons support this article's proposal to no longer exempt these gains. Extending
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The Econtractor? Defining the Esports Employment Relationship American Business Law Journal (IF 1.533) Pub Date : 2019-05-20 John T. Holden, Thomas A. Baker
Esports is now a multibillion‐dollar industry that has quickly become one of the most discussed segments of the entertainment industry. There has been a rush to mention esports alongside other more traditional sports like baseball, basketball, football, and hockey, but the comparison may not be apt. Esports leagues are fundamentally different from traditional sports leagues because the competitive
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Personal Data and the GDPR: Providing a Competitive Advantage for U.S. Companies American Business Law Journal (IF 1.533) Pub Date : 2019-05-20 W. Gregory Voss, Kimberly A. Houser
The European Union's General Data Protection Regulation (GDPR) became applicable in May 2018. Due to the GDPR's extraterritorial scope, which could result in massive fines for U.S. companies, comparative data privacy law is of great current interest. In June 2018, California passed its own Consumer Privacy Act, echoing some of the provisions of the GDPR. Despite the many articles comparing the two
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Winning and Losing in Investor–State Dispute Settlement American Business Law Journal (IF 1.533) Pub Date : 2019-02-26 Tim R Samples
As tensions between investors’ rights and sovereign power escalate, investor–state dispute settlement (ISDS) has become a focal point of backlash and controversy. As a result, ISDS now embodies two opposing currents in international law: (1) the erosion of sovereignty that accompanied economic globalization, trade frameworks, and investment treaties following the Second World War and (2) more recently
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Belief v. Belief: Resolving LGBTQ Rights Conflicts in the Religious Workplace American Business Law Journal (IF 1.533) Pub Date : 2019-02-26 Elizabeth Brown, Inara Scott
Employment disputes are increasingly centered on the conflicting moral and religious values of corporations, their employees, and their customers. These conflicts are especially challenging when they involve the rights of lesbian, gay, bisexual, transsexual, and queer/questioning (LGBTQ) employees and customers contraposed against the religious beliefs of corporations and their owners. When religious
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Sampling Increases Music Sales: An Empirical Copyright Study American Business Law Journal (IF 1.533) Pub Date : 2019-02-26 Mike Schuster, David Mitchell, Kenneth Brown
The Supreme Court instructs that the most important consideration in analyzing fair use is the effect on the market for the original. Employing music sales data, this article presents evidence of digital sampling's effect on the sales of sampled songs. Our results indicate that a reassessment of fair use in the area of music sampling is needed since sales of sampled songs increased after being repurposed
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The Transparency Trap: Non‐Financial Disclosure and the Responsibility of Business to Respect Human Rights American Business Law Journal (IF 1.533) Pub Date : 2019-02-26 David Hess
This article examines the potential for transparency programs to improve corporations’ human rights performance. The primary focus is on “general” transparency programs such as the inclusion of human rights issues in sustainability reports. Regulators increasingly rely on such programs, one of which is the EU Directive on the Disclosure of Non‐financial Information, which many commentators view as
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From Schism to Prism: Equitable Relief in Employee Benefit Plans American Business Law Journal (IF 1.533) Pub Date : 2018-11-12 Dana Muir
Denials of relief for even clear violations of statutory protections have left some injured benefit plan participants and beneficiaries without compensation and failed to provide appropriate incentives for compliance. Many of the remedial failures can be traced to a 1993 U.S. Supreme Court case, which narrowly construed the relevant statute's provision for appropriate equitable relief. I argue that
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Assessing the Progress of Women in Corporate America: The More Things Change, the More They Stay the Same American Business Law Journal (IF 1.533) Pub Date : 2018-11-12 Terry M. Dworkin, Cindy A. Schipani, Frances J. Milliken, Madeline K. Kneeland
Overt gender discrimination in the workplace is now less frequent since the passage of the Civil Rights Act; however, subconscious workplace gender biases persist. These subtle biases continue to contribute to gender inequality in the employment context, hindering women's ability to reach the top ranks of corporate leadership and their ability to achieve pay equity. To combat this inequity, in this
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SLAPPed by RICO: Corporations Punishing Social Activism American Business Law Journal (IF 1.533) Pub Date : 2018-11-12 Robert Sprague
Since mid‐twentieth century, courts and state legislatures have recognized that legitimate petitioning and free speech activities should not be subject to civil litigation. Laws meant to regulate or proscribe one form of activity should not be abused to curb First Amendment activities. Over the past thirty years a number of states have enacted legislation to protect individuals and organizations active
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Whistleblowers Need Not Apply American Business Law Journal (IF 1.533) Pub Date : 2018-11-12 Leora F. Eisenstadt, Jennifer M. Pacella
Whistleblowers are severely disadvantaged when they apply for jobs. Many whistleblowers experience retaliation twofold—first, at their place of employment after they initially blow the whistle, and, second, on the job market for any subsequent employment. This negative trail follows whistleblowers, labeling them as disloyal, suspicious, and, ultimately, not ideal employees, and, thus, unable to find
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Mitigating the Harshness of FCPA Enforcement Through a Qualifying Good‐Faith Compliance Defense American Business Law Journal (IF 1.533) Pub Date : 2018-08-03 Steven R. Salbu
In recent years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have enforced the Foreign Corrupt Practices Act (FCPA) with increasing rigor. These zealous enforcement practices have been criticized for putting excessive pressure on companies to settle, often through nonprosecution or deferred prosecution agreements. The resulting proliferation of such settlements
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Nonfinancial Risk Disclosure and the Costs of Private Ordering American Business Law Journal (IF 1.533) Pub Date : 2018-08-03 Virginia Harper Ho
In 2016 the Securities and Exchange Commission (SEC) considered for the first time whether financial disclosure reform should address information on sustainability matters and other sources of nonfinancial risk. The resulting debate over these issues raised fundamental questions about how well the federal disclosure regime addresses emerging risks and about how well private ordering, through shareholder
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Atypical Accommodations for Employees with Psychiatric Disabilities American Business Law Journal (IF 1.533) Pub Date : 2018-08-03 Stacy A. Hickox, Angela Hall
People with psychiatric disabilities often need atypical accommodations to participate in today's workforce. Some of these accommodations, including structural and social changes in the workplace, can address biases against people with psychiatric disabilities, while others ameliorate deficits that may affect performance or interaction with others. Many courts have denied requests for such accommodations
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The Biggest “Have” of Them All: Wal‐Mart and Its Litigation Outcomes in Slip‐and‐Fall Cases American Business Law Journal (IF 1.533) Pub Date : 2018-05-16 Charles Penrod, Matthew Crow
Scholars have theorized that resource‐rich litigants known as the “haves” tend to succeed disproportionately in litigation when the adverse party is a “have‐not.” The traditional theory suggests that haves are able to use their wealth to secure better attorney representation and can use their frequent experience in litigation to tip the scales of justice in their favor, particularly when faced with
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How Employers Profit from Digital Wage Theft Under the FLSA American Business Law Journal (IF 1.533) Pub Date : 2018-05-16 Elizabeth C. Tippett
This study describes three types of digital wage theft, as depicted in 330 cases litigated in federal and state court. The first, known as “rounding,” occurs when employers set their timekeeping software to alter employee punch time in a preset increment (typically moving punches to the nearest quarter hour). The second, “automatic break deductions,” involves subtracting a preset increment of time
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Silencing Whistleblowers by Contract American Business Law Journal (IF 1.533) Pub Date : 2018-05-16 Jennifer M. Pacella
In 2015 the corporate world was jolted as the Securities and Exchange Commission (SEC) commenced its first enforcement action against employer‐mandated confidentiality agreements to silence would‐be whistleblowers, imposing sanctions on KBR Inc. (KBR) for contractually restricting its employees from becoming whistleblowers. Lying dormant until this action, Dodd–Frank's Rule 21F‐17, which bars restrictions
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The Firm and Common Pool Resource Theory: Understanding the Rise of Benefit Corporations American Business Law Journal (IF 1.533) Pub Date : 2018-02-02 Janine S. Hiller, Scott J. Shackelford
In September 2015, the crowdfunding site Kickstarter announced that it would adopt a new corporate form, that of a benefit corporation. Kickstarter is far from alone in this decision; in fact, it joined a growing list of tech firms that are moving toward adopting a benefit corporation designation. The result of the legal movement is that corporate governance across the nation may be changing, impacting
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Entrepreneurship and Legal Uncertainty: Unexpected Federal Trademark Registrations for Marijuana Derivatives American Business Law Journal (IF 1.533) Pub Date : 2018-02-02 W. Michael Schuster, Jack Wroldsen
Though several states have legalized marijuana use, the drug remains illegal under federal law. Not surprisingly, the United States Patent and Trademark Office (USPTO) refuses to register trademarks related to marijuana because of the federal prohibition. What is surprising, though, is the willingness to grant trademarks for cannabidiol (CBD), a marijuana derivative that is likewise expressly illegal
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The United Kingdom Right to Request as a Model for Flexible Work in the European Union American Business Law Journal (IF 1.533) Pub Date : 2018-02-02 Robert C. Bird, Liz Brown
Flexible work, the practice of giving employees some control over their working time, can transform the modern workplace. Once the province of scattered national legislation, the European Union is now considering the inclusion of flextime rights in the Working Time Directive (WTD), the leading EU legislation related to work time. In this article, we propose that the European Commission should adopt