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The Other Janus and the Future of Labor’s Capital
Get PDFTwo forms of labor’s capital—union funds and public pension funds—have profoundly reshaped the corporate world. They have successfully advocated for shareholder empowerment initiatives like proxy access, declassified boards, majority voting, say on pay, private fund registration, and the CEO-to-worker pay ratio. They have also served as lead plaintiffs in forty percent of federal securities fraud and Delaware deal class actions. Today, much-discussed reforms like revised shareholder proposal rules and mandatory arbitration threaten two of the main channels by which these shareholders have exercised power. But labor’s capital faces its greatest, even existential, threats from outside corporate law. This Essay addresses one of those threats: the direct and indirect challenges posed to labor’s capital by the Supreme Court’s holding in Janus v. American Federation of State, County, and Municipal Employees, Council 31. These threats may have spillover effects in the corporate arena. This Essay discusses these developments in light of Randall Thomas’s early and prescient work on labor as a shareholder
Data First – Tax Next: How Fiji’s Technology Can Improve New Zealand’s \u27Netflix Tax\u27 (Part 2)
Get PDFThis is the second in a four-part series addressing VAT/GST avoidance schemes involving remote sales of services. These schemes have been growing in importance. The IMF reports that the services component of cross-border trade has been on the rise for fifty-years or more, making the Internet a serious threat to revenue. Technology has accelerated tax avoidance.Statutory draftsmen in New Zealand have looked at this problem directly with what has been called the Netflix Tax. Technologist in Fiji have been struggling with similar problems and have developed technology-based security systems that would seem to address remote sales of services more effectively than traditional approaches. Fighting technology with technology has some distinct advantages over a traditional statute and regulation approach. In a very real sense, computer code can be law, and can function as a tax regulation.Three additional aspects of the New Zealand Netflix Tax will be considered in this part:(a) threshold rules;(b) remote enforcement; and(c) double taxation of remote services. In each case the New Zealand rules will be considered, followed by an overlay of Fiji’s technological solution to show how inherent problems with traditional statutory solutions adopted by New Zealand can be mitigated with technology.The two papers following this part will consider four remaining issues:(a) placing tax responsibility for reporting and collecting VAT/GST with an electronic marketplace;(b) how to deal with domestic agents of remote service providers;(c) how to detect and respond to false information sent to the tax administration; and(d) how to deal with dual-status taxpayers
Why the Duty to Research Falls on Institutions Rather than Individuals
No full textOne often-overlooked task for applied ethics is to determine not just what must be done, but who should do it. It may be true that someone ought to perform clinical research on innovative forms of health care practice, but it is not necessarily the case that any particular innovating clinician has an obligation to do so. We argue that an affirmative duty to conduct research would redirect scarce clinical resources and compel clinicians to perform tasks outside of their scope of training, expertise, and professional expectation, infringing upon beneficence and justice. It may also produce poorer quality science with a greater risk of bias. Instead, this need for research would be better served by a division of labor and an institutional response, at the level of health care networks and national investments
Federalism in Health Care Reform
Get PDFThroughout American history, protecting states’ rights within federal health reform laws has served purposes other than the needs of the poor, such as excluding those deemed undeserving of assistance, the “able-bodied.” This chapter explores the role of federalism in health reform, paying particular attention to the importance of universality in programs meant to aid the poor, such as Medicaid. American federalism is dynamic, involving separate state negotiations with the federal government rather than the fixed dual sovereignty imagined by the Supreme Court. Such negotiations lead to variability, which in health care may lower the baseline for reform-resistant states and thus the nation as a whole. This is especially significant when the federal government attempts to improve conditions nationwide, as it did with the Affordable Care Act’s (ACA’s) universal health insurance coverage. The example of Medicaid expansion under the ACA demonstrates how state variability can improve coverage but also jeopardize it; keeping states in the picture sometimes results in restricting access to the safety net rather than strengthening it. The debates of the twentieth century about the role of government in health and who is deserving of aid are bound to repeatedly arise without fully gauging federalism’s mixed effects in health reform
Copyright in a Global Information Economy, Fifth Edition
No full textCopyright in a Global Information Economy, Fifth Edition provides both comprehensive topic coverage and integrated treatment of doctrinal, theoretical, international, and policy questions. It seamlessly facilitates a variety of teaching styles and preferences ranging from the more theoretical to the more practice-oriented. Each section includes practice exercises that enable students to apply what they have learned and to practice skills relating to advocacy, drafting, and client counseling.
New to the Fifth Edition: Updated and streamlined introductory materials on copyright’s context and justifications Revised coverage of doctrines relating to authorship and copying in fact to emphasize problems that arise in organizational settings Coverage of the Music Modernization Act of 2018 and its implications for the specialized system of music copyright rules New case law on the extent of online service providers’ duty to maintain and implement procedures for terminating accounts of repeat infringers Coverage of the European Union’s Digital Single Market directive and its implications for online service provider obligations to copyright holders Revised coverage of materials relating to termination of transfers to reflect current controversieshttps://scholarship.law.bu.edu/books/1354/thumbnail.jp
Data Generated by New Technologies and the Law: A Guide for Massachusetts Practitioners
Get PDFThis brief paper, created as part of a training on new technologies and evidence for MCLE New England, outlines the standards used to compel disclosure of information under the Stored Communication Act, and reviews the types of data stored on various consumer devices and their likely custodians, as well as cases and notes relevant to each devices. The paper serves as a quick introduction and checklist for those considering gathering information from these devices in the course of investigations in Massachusetts. The devices outlined include cell phones, social media platforms, secure messaging services, fitness trackers, home assistant devices (or smart speakers ), and in-home Internet of Things devices. The 2019 edition updates and expands on the prior edition, with an expanded discussion of facial analysis technology
Skyrocketing citizenship backlog — politics at play?
No full textIn 1952, at the height of McCarthyism, the U.S. Supreme Court upheld legislation that rendered deportable former members of the Communist Party. The plaintiffs at the center of the case, Peter Harisiades, Luigi Mascitti and Dora Coleman, had lived as lawful permanent residents in the United States for over 30 years, and they challenged on due process and other grounds the notion that they could be kicked out of the United States on their political allegiance alone
Existential Copyright and Professional Photography
Get PDFIntellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More importantly, our data call for an expansion of the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in up-front negotiations with clients but not much benefit in anticopying protection afterwards. Beyond that, copyright also serves as part of photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Identifying these unrecognized and surprising functions of copyright in creators’ accounts is separate from evaluating their desirability. But we argue that the real-world functions of copyright are better candidates for justification and better subjects for policy discussion than chalkboard theories. In this way, our study of photographers moves the longstanding debate over intellectual property law’s purpose to a new and more informed place
Tax Reform, Mixed‐Entity Markets, and Hospitals: How the 2017 Tax Cuts and Jobs Act Favors the For‐Profit Hospital Model
Get PDFWhen the U.S. Congress passed the Tax Cuts and Jobs Act in 2017 (the “TCJA”), it achieved a significant tax cut for corporations. In doing so, however, Congress simultaneously reshaped the landscape for mixed‐entity markets—that is, industries like healthcare and education in which nonprofit, for‐profit, and government entities coexist and compete. This is particularly true for the hospital market in which the TCJA’s provisions have subtly but decidedly tilted market conditions towards a for‐profit hospital model.
While scholars may debate the benefits of a nonprofit versus a for‐ profit entity model, the reality is that the majority of U.S. hospitals, and nearly all critical access hospitals, are nonprofits. Increased financial pressure from for‐profit competitors will likely compel these hospitals to cut critical but unprofitable services—or otherwise find ways to reduce their provision of uncompensated care. This Article contends that, by failing to adequately account for the complex interactions of a mixed‐ entity hospital market, the TCJA will increase the disparity of healthcare services in America. As mixed‐entity markets increase in prevalence, policymakers should carefully consider the nuances of such markets as they debate and implement policies that may not only trickle down but also inadvertently restructure entire industries
The Procedure of Patent Eligibility
Get PDFA decade ago, the patent-eligible subject matter requirement was defunct. Several recent Supreme Court decisions, however, have made eligibility the most important issue in many patent cases. To date, debates over the resurgent doctrine have focused mainly on its substance. Critics contend that the Supreme Court’s case law makes patents too easy to invalidate and discourages innovation. Supporters emphasize that the Court’s decisions help eradicate the overly broad patents often asserted by so-called patent trolls.Yet one important consequence of eligibility’s revival has been procedural. Because district courts often view eligibility to present a pure question of law, they are—for the first time ever—invalidating patents on motions to dismiss, ending infringement cases before the costly discovery process begins. The test for eligibility adopted by the Supreme Court, however, compares the claimed invention to the technology that predated the patent. That comparison, this Article argues, often involves disputes of fact, which means that courts should be more cautious about deciding eligibility on the pleadings than they currently are.In two noteworthy decisions issued in early 2018, the Federal Circuit held that the question of patent eligibility does indeed have factual underpinnings, brushing aside precedent that seemed to treat eligibility as a purely legal matter. But these new decisions may go too far. By making it extremely easy for plaintiffs to create a factual dispute that prevents pre-trial adjudication, they threaten to nullify what this Article identifies as a key policy function of the eligibility requirement: providing a means for courts to quickly and cheaply dismiss infringement claims so plainly lacking merit that discovery is unwarranted.In addition to examining the legal-versus-factual nature of eligibility doctrine, the Article analyzes several other important questions about procedure in eligibility cases that the lower federal courts—including judges and panels of the Federal Circuit—have answered in wildly divergent ways. Those questions range from the role of claim construction in the eligibility analysis, to the relevance of the statutory presumption of patent validity, to whether courts should decide eligibility when a case can be terminated on another ground. By engaging these vexing issues, the Article sketches a procedural framework for resolving eligibility that would allow courts to quickly invalidate “bad” patents while reducing the danger they will erroneously invalidate a “good” patent on an inadequately developed record