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Codetermination in Theory and Practice
Get PDFA system of shared corporate governance between shareholders and workers, codetermination has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and an example of corporate deviance. However, over the last twenty years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders. This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures predicted by our law-and-economics framework of shareholder primacy, codetermination has fared better than alternative systems, particularly with respect to the ravages of the Global Financial Crisis. At a time when corporate leaders, politicians, and academics are rethinking the shareholder primacy model, the Article presents an updated perspective on codetermination and invites U.S. scholars to reexamine their prior assumptions
Vaccine Clinical Trials and Data Infrastructure
Get PDFWe find ourselves at a momentous turn in the history of vaccines. The COVID-19 pandemic triggered a quasi-global vaccine race that not only compressed vaccine research and development (R&D) timelines, but also paved the way for the administration of a new type of vaccine technology – mRNA vaccines, which work in substantially different ways from the vaccines in use before the pandemic.While the process of bringing emerging COVID-19 vaccines to market has taken place in an unusually short timeframe, it was largely predicated on the same scientific and regulatory processes that govern the development, approval and deployment of new vaccines. For decades, these processes have encompassed several phases of vaccine testing – first without and subsequently with the involvement of human subjects – followed by an analysis of the emerging data.This Essay reflects on the evolution and status quo of the ways in which these data are gathered and disseminated within the context of the development of new vaccines. It treats information stemming from clinical trials as the initial building blocks of our vaccine data infrastructure, and surveys problems related to data collection and disclosure that have long been pervasive in the vaccine R&D ecosystem.Part I of the Essay situates the discussion of vaccine clinical trial data within historical boundaries. Part I.A travels back in time to the polio vaccine trials of the 1950s in the United States, which were one of the main catalysts of the adoption of the clinical trial structure now in place throughout the world. Part I.B then charts the formalization of the modern vaccine clinical trial model through legislation adopted between the polio and the COVID-19 vaccine races.Even though this formalization has resulted in a seemingly robust legal framework, there remain multiple problems that affect both the ways in which vaccine clinical trial data is actually generated and then utilized. Using examples from both past vaccine clinical trials and the COVID-19 vaccine race, Part II.A focuses on data collection issues, with an emphasis on the under-representation of minority populations in vaccine clinical trials. Part II.B then considers how imperfectly generated data meet further roadblocks in the form of delayed reporting or lack of reporting of clinical trial results, as well as restrictions to data sharing often attributable to agency interpretations of trade secrecy provisions that have long been disputed by several legal scholars.These problems affect both the transparency and accountability of vaccine innovation processes, and pose significant hurdles to follow-on R&D. Moreover, and relatedly, they can impair public trust on vaccine innovation processes at a time in which vaccine misinformation is quickly eroding overall levels of trust in vaccination as a public health tool. Part III concludes the Essay by pointing towards emerging ways to enrich the existing vaccine clinical trial data infrastructure. Specifically, it provides a short case study on the COVID-19 data sharing policy implemented in the European Union by its counterpart to the U.S. Food and Drug Administration, the European Medicines Agency. This ad hoc policy quickly expanded the disclosure of information about emerging COVID-19 drugs and vaccines in response to mounting pressure for more transparency about the drug and vaccine approval process. As such, it may be used as a blueprint by regulators elsewhere, as well as by proponents of a more robust system for the disclosure and sharing of clinical trial data
The Duty to Correct Another’s Material Misrepresentations: A Contextual Approach for Analyzing Fraudulent Behavior Under Rule 10b-5
Get PDFSection 10(b) of the 1934 Securities and Exchange Act is the broadest anti-fraud provision within securities laws and is enforced through Rule 10b-5, which makes it unlawful for any person, in connection with the purchase or sale of any security, to defraud, misrepresent material facts, omit material facts, or engage in any practice which operates as fraud or deceit upon any person. In promulgating Section 10(b) and Rule 10b-5, Congress, and the SEC by way of Congressional authority, designed these laws to encompass the infinite variety of devices by which undue advantage could be taken of investors and corporations. Another goal of Section 10(b) and Rule 10b-5 is the need to protect the security market’s integrity from abuses by those with access to material nonpublic information that would affect the price of a corporation’s securities upon public disclosure.
Individuals are capable of finding creative ways to manipulate the market, and in turn, courts must also be creative in holding those individuals accountable for their fraudulent behavior. While the concept that an issuer has a duty to correct their own statements has widespread judicial and academic acceptance, when does an issuer have a duty to correct misleading statements made by third parties, such as reporters and financial analysts? What about statements made by coworkers or fellow executive officers? The diversity of circuit opinions demonstrates that any given Rule 10b-5 claim is unique and rarely allows for a single coherent answer. Thus, this Note proposes that the Supreme Court should adopt a case-by-case, contextual approach for analyzing Rule 10b-5 violations
Teaching Law Online: Yesterday and Today, But Tomorrow Never Knows
Get PDFAlthough the role of “online” in legal education has grown over the past several decades, online teaching became a lifeline in Spring 2020 when the COVID-19 pandemic shuttered classrooms nationwide. Online teaching is now necessary, but also problematic. Schools and teachers therefore need to carefully consider how to make effective use of online tools and techniques. This essay reflects on the author’s career-long experiences in online law teaching, much of which predates the COVID-19 pandemic. “With a little help” from a Beatles song or two, the essay reflects the yesterday, today, and tomorrow of online legal education. It closes with that most scholarly of prescriptions: The Beatles’ Top Ten hits relevant to teaching online
Adaptable Design: Building Multi-Modal Content for Flexible Law School Teaching
Get PDFThis essay discusses ways to build course content that can easily toggle between face-to-face and online modes of instruction. It is meant as a quick, practical guide for law professors faced with challenging teaching circumstances due to COVID-19 and campus closures, but with long-term applicability as law schools continue to expand online and hybrid course offerings. This idea for “adaptable design” is based largely on my own experience moving face-to-face courses online. I try to avoid delving too much into technical definitions and pedagogical theory, instead focusing on personal experience and examples. Although COVID-19 has created an immediate need for adaptable design, I hope this essay proves to be a resource beyond our immediate reactions to a global pandemic and can be useful for anyone seeking to innovate in their law school courses
Some Thoughts on the Corona Semester
Get PDFThe COVID-19 pandemic presented educators across the world with a unique set of challenges. In this Article, I reflect on my experience of transitioning to the online medium mid-semester without much preparation. I compare the vastly dissimilar experiences of conducting classes “physically” and remotely, highlighting the difficulties I experienced in translating to the online realm, and the pedagogical methods I usually employed while teaching Contract law to first-year students
Chambers v. District of Columbia and the Future of Title VII
Get PDFCan blatant workplace discrimination escape the grasp of Title VII? In Chambers v. District of Columbia, the D.C. Circuit is considering whether to revisit a rule that employment discrimination must result in “objectively tangible harm” to give rise to a Title VII claim. In this article, the authors argue that the D.C. Circuit should stay true to the language and purpose of Title VII and adopt a standard similar to the simple “treated less well” test used under the NYC Human Rights Law.https://scholarship.law.slu.edu/lawjournalonline/1083/thumbnail.jp
Protecting Patients from Physicians Who Inflict Harm: New Legal Resources for State Medical Boards
Get PDFState medical boards (SMBs) protect the public by ensuring that physicians uphold appropriate standards of care and ethical practice. Despite this clear purpose, egregious types of wrongdoing by physicians are alarmingly frequent, harmful, and under-reported. Even when egregious wrongdoing is reported to SMBs, it is unclear why SMBs sometimes fail to promptly remove seriously offending physicians from practice. Legal and policy tools that are targeted, well-informed, and actionable are urgently needed to help SMBs more effectively protect patients from egregious wrongdoing by physicians.
Past reviews of SMB performance have identified features of SMBs associated with higher rates of severe disciplinary actions against physicians, including political and professional independence and adequate funding and staffing. However, there has been little attention paid to elements of the state-level legal framework that governs SMB licensing and disciplinary function, or what legal or policy tools would make SMBs more effective at protecting patients in serious cases.
This Article offers solutions in the form of model language with commentary for five high-impact statutory provisions that address board composition and function, reporting to the board, and adjudication of disciplinary matters. It brings together consensus recommendations from an expert panel, the results of legal mapping of relevant state laws, and original legal and policy analysis. The model provisions and commentary are intended to serve as a new resource for SMBs, state legislatures, and other policymakers to encourage and support examination of existing medical practice acts to improve SMB function and better protect patients from harmful physicians