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A Rose is a Rose: Electronic Commerce Spawns Word Confusion
Get PDFE-commerce provides consumers many new ways to transact business. These include clickwrap contracts, digital wallets, and bitcoin. Courts and agencies are struggling to determine if consumer protection statutes apply
Business Secrecy Expansion and FOIA
No full textExpansive trade secrecy claims (such as those regarding voting machine software and government contractor pricing) can negatively impact government transparency and democratic accountability. In one important context--Freedom of Information Act (FOIA) cases--courts have addressed these concerns by imposing constraints on the definition of “trade secrets” and “confidential” commercial information that can be lawfully withheld from requesters, such as journalists and watchdog groups, under FOIA\u27s Exemption 4. But, the U.S. Supreme Court\u27s 2019 decision in Food Marketing Institute v. Argus Leader Media toppled these constraints. Wiping away four decades of circuit court precedent, the Court held that commercial information can be withheld under Exemption 4, provided that the submitter customarily treated it as private. Prior to this decision, such information typically could not be withheld unless its disclosure would cause the submitter substantial competitive harm. Food Marketing\u27s permissive new standard will dramatically expand the private sector\u27s ability to shield from public view information provided to the government. This Article is the first to explore Food Marketing and its consequences through the lens of trade secrecy law. I demonstrate that Food Marketing\u27s expansion of exempt business secrets under FOIA is consistent with the broader pattern of trade secrecy expansion in common and statutory law. In both contexts--FOIA and civil trade secret litigation--courts have replaced strict constraints on the definition of proprietary secrets with a more open-ended analysis that focuses on a firm\u27s privacy practices and preferences. This newfound consistency is ironic, given that courts considering FOIA requests spent many decades rejecting the more expansive definition of trade secrecy in civil litigation and opting instead for a narrower definition that aligned with FOIA\u27s disclosure mandate. Ultimately, I suggest that Food Marketing\u27s new test may sweep even more broadly than its civil trade secrecy counterpart, for the latter\u27s focus on employee-defendants comes with inherent restrictions on firms\u27 overbroad claims that the FOIA context lacks. These differences and FOIA\u27s unique role in promoting government accountability suggest the need for additional constraints on firms\u27 assertions of business secrecy
Symposium 2020 Hindsight: Reflections on the Pandemic, Protests, and Political Perils: Clinicians Reflect on COVID-19: Lessons Learned and Looking Beyond
No full textAs a result of the unprecedented COVID-19 pandemic, clinical faculty had to abruptly adapt their clinical teaching and case supervision practices to adjust to the myriad restrictions brought on by the pandemic. This brought specialized challenges for clinicians who uniquely serve as both legal practitioners and law teachers in the law school setting. With little support and guidance, clinicians tackled never before seen difficulties in the uncharted waters of running a clinical law practice during a pandemic. In this report, we review the responses of 220 clinicians to survey questions relating to how law clinics and clinicians were treated by their institutions as they navigated these changes. Were clinical courses treated differently than other courses? Were clinical faculty treated differently than other faculty? Were some clinical courses treated differently than others? Did clinical faculty and staff experience pressure by their institutions to teach in-person or hybrid courses? In addition to summarizing the findings to these questions, this report examines the disparate impact of the COVID-19 pandemic on clinicians and sheds light on some of the distinct challenges they faced. The report concludes with a list of recommended actions that law schools may take to equip themselves to provide appropriate support for clinical faculty during inevitable future emergencies, emphasizing the importance of autonomy and discretion for clinicians; specialized attention for diverse and vulnerable clinicians; and the very serious ethical and legal obligations of clinical law practices
Spring et al., v. McMillin et al., Order on Pending Motions, Granting Temporary Stay and Requiring Certain Status Reports
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Insuring the Uninsurable : Business Interruption Insurance Coverage & COVID-19
Get PDFThe COVID-19 pandemic has impacted virtually every facet of life in the United States, including the insurance industry. In particular, the number of business interruption insurance coverage lawsuits has continued to climb since March 2020, as insurers are denying coverage for pandemic-related losses and policyholders are seeking indemnification. Courts across the country are faced with answering difficult, novel questions about the interpretation and scope of business interruption insurance policies. Collectively, the conclusions the courts reach are critically important because they will determine the fate of policyholders and the insurance industry, respectively. This Note explores business interruption insurance coverage during COVID-19 by examining past and current judicial opinions, as well as legislative and industry proposals for the future. This Note proposes a framework for courts across the country, state governments, and the federal government to use as guidance for solving problems related to COVID-19 business interruption insurance coverage
Contracts with (Social) benefits: The implementation of impact investing
No full textWe draw on new data and theory to examine how private market contracts adapt to serve multiple goals, particularly the social-benefit goals that impact funds add to their financial goals. Counter to the intuition from multitasking models (Holmstrom and Milgrom, 1991), few impact funds tie compensation directly to impact, and most retain traditional financial incentives. However, funds contract directly on impact in other ways and adjust aspects of the contracts such as governance. In the cross-section of impact funds, those with higher profit goals contract more tightly around both goals
