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Federalized Corporate Governance: The Dream of William O. Douglas as Sarbanes-Oxley Turns 20
Get PDFThe federalization of U.S. corporate governance has been a topic of conversation among policymakers from the very beginning of federal securities law in the New Deal era. Among the early proponents of a federalized system of corporate governance oversight was William O. Douglas—perhaps best known as the longest-serving U.S. Supreme Court justice, but who also was a former commissioner and chair of the U.S. Securities and Exchange Commission. Reflecting on Douglas’s federal corporate governance ideas, Professor Roberta Karmel wrote a law review article for the Delaware Journal of Corporate Law, published in 2005, commenting on the extent and nature of federalized corporate governance in the wake of the enactment of the Sarbanes-Oxley Act of 2002. This essay effectively picks up where Professor Karmel’s article leaves off, highlighting a number of key legal happenings since the adoption of Sarbanes-Oxley that extend and supplement the work accomplished by that landmark federal securities legislation in forwarding federalized corporate governance. The essay also offers related observations about the future of federalized corporation governance. In the main, however, the essay is a tribute to Professor Karmel—a personal and professional heroine in my life who, as it turns out, was researching and writing about the federalization of corporate governance at the same time I was, but from a different angle. The structure of the essay parallels key aspects of Professor Karmel’s 2005 article
What Counts as Data?
Get PDFWe live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in legal corpus linguistics, a method of interpretation that uses large datasets of actual language use to give empirical heft to claims about how “ordinary people” would use or understand legal terminology—claims that pervade legal interpretation. Unlike corpus linguistics in the field of linguistics, however, legal corpus linguistic analysis tends not to articulate or examine just what its datasets can reveal. Practitioners are thus liable to make large claims on the basis of materials that don’t support them—materials that provide information, but do not constitute data that answers the questions legal corpus linguistics poses. This essay undertakes a more careful parsing of what the corpora preferred by legal corpus linguistics can, and cannot, reveal. Although I conclude that legal corpus linguistics currently faces a mismatch between information and aspiration, I also suggest areas of legal work where it can be of real use
An Analysis of the Patent Linkage System and Development of the Biosimilar Industry in Taiwan
Get PDFIn 2019, as an effort to join the Trans-Pacific Partnership (TPP) Agreement (now Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)), Taiwan has implemented the patent linkage system which covers both small molecule generic drugs and large molecule biosimilar into the Pharmaceutical Affair Act. The system modeled after the U.S.’s patent linkage system designed for small molecule drugs under the Hatch Waxman Act (HWA). Based on the experience of the patent linkage system under the HWA, biosimilar industry representatives in Taiwan contended that the adoption of the patent linkage system will be detrimental to the development of local industry. By adopting patent linkage system, foreign biologics company would implement evergreening strategies to delay the marketing of locally produced biosimilar, conduct improper patent listing, and to abuse the granting of automatic stays. This article critically evaluates whether Taiwan’s patent linkage system could serve the dual goal of fostering biologic innovation and promoting biosimilar industry development by examining patent linkage systems for biosimialrs in the U.S, South Korea and Taiwan. This article argues that this dual goal could be achieved if the method of manufacturing patents could be included in patent listings and through a wider institutional collaboration between Taiwan Food and Drug Regulation Agency and Taiwan Intellectual Property Office
Level-Up: Towards a More Competitive & Labor-Friendly E-Sports Industry
Get PDFDespite humble beginnings, the advent of the modern internet has seen the explosion of e-sports into an industry commanding hundreds of millions of annual viewers and nearly a billion dollars in annual advertising revenue. Facilitating this expansion has been a shift from independently run competitive e-sports leagues to leagues created and operated by the developers of the league’s underlying game. This vertical integration by developers increases e-sports accessibility to viewers, but at the cost of decreased player bargaining power and professional flexibility. The integration further incentivizes ever-increasing working hours and self-destructive or rule-breaking behavior by players to stay competitive. This Note first examines the current e-sports regulatory apparatus of several nations and Non-Governmental Organizations, before contrasting them against the potential application of the International Labor Organization’s standards for association and collective bargaining with respect to protecting player working conditions. Accordingly, this Note argues that an e-sports regulatory scheme rooted in the International Labor Organization’s Core Conventions will more effectively protect the labor rights of players and downstream actors, as opposed to a completely centralized governing body or a regulatory scheme rooted entirely in antitrust law
A REJECTION OF ABSOLUTIST DUTIES AS A BARRIER TO CREDITOR PROTECTION: FACILITATING DIRECTORIAL DECISIVNESS SURROUNDING INSOLVENCY THROUGH THE BUSINESS JUDGMENT RULE
Get PDFThis Article draws attention to the difficulties that directors may face when seeking to discharge their duties as a corporation approaches insolvency, in particular when directors must discern the point at which a corporation has become insolvent. It argues that discretion allowed to directors by the business judgment rule will be crucial to overcoming these difficulties. To do this, this article examines the nature of duties owed by directors both before and after insolvency, and accepts the stance taken by Delaware courts in recent years towards an expansive understanding of a corporation’s interests upon insolvency. It then considers unresolved issues arising from how insolvency is defined and argues that the current view of insolvency as a bright-line threshold is overly simplistic and overlooks the multitude of metrics used to measure a corporation’s financial condition. In its stead, this Article posits that the business judgment rule provides sufficient latitude for directors to navigate commercial activity nearing insolvency