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The Delaware-Inspired Next Step Toward Brazil Becoming the South American Leader in Corporate Law: Making Public Company Arbitrations a Matter of Public Record
Get PDFBrazil is South America’s leading domicile for listed public companies and has enjoyed substantial economic growth in the last generation. But it remains a nation constrained by limited resources to address all of its challenges and opportunities. Because of this reality, Brazil has chosen to use arbitration as the method to resolve disputes between the stockholders of public companies about critical issues such as the fairness of interested transactions and other claims for breach of fiduciary duty or compliance with statutory law and securities laws.
Likewise, important commercial disputes involving public companies are also resolved in arbitration. This is problematic in one hugely important way: Brazil has not yet recognized that arbitration of this kind that affects public companies, their stockholders, and other stakeholders is distinct from purely private arbitration. As a result, the arbitration process for public companies lacks the accountability and integrity that accompanies public adjudication and also fails to create a body of decisional law that provides a basis for the evolution of sound corporate governance best practices and that encourages arbitrators to base their decision on principled and coherent interpretations of commercial, corporate, and securities law. Recognizing that one of the primary reasons Delaware has emerged as an international leader in corporate and commercial law is that its system of adjudication resolves cases promptly, expertly, and publicly, and provides practitioners, academics, regulators, stockholders, corporate leaders, and the public with reasoned decisions about important determinations affecting public companies, we argue that features of Delaware’s approach could be usefully employed within Brazil’s system of public company arbitration. We thus support and encourage recent reforms in Brazil to open up the system of public company arbitration and provide specific suggestions for making the new movement toward public arbitration in public company cases effective. By capitalizing on the speed and expertise that can be brought to bear by arbitration, but combining it with credibility- and consistency-enhancing features, Brazil can further its ambitions to be an international leader in the market for incorporation and better encourage investment in its economy
Regulatory Managerialism and Failures of Inaction: A Case Study of Bank Regulation and Climate Change
No full textWe live in a great country. But there are real threats to it. Three-quarters of all voters – left, right, center – believe our democracy is in peril. Extremism, anti-Semitism, racism, violence against LGBTQ people, and political violence persist. It is part of the reason I chose “Defending Democracy” as the theme for my tenure as AALS President.
Law schools can play a critical role in the future of our country and our democracy. The legal profession has never had a higher profile and greater exposure than over the last few years. Lawyers are everywhere in places of prominence, power, and policy. Lawyers have shaped and will continue to shape our democracy.
What, then, is our responsibility as educators of future lawyers? What role do we play in helping to ensure that our democracy endures? Our work begins with three pillars that define every law school: curriculum, scholarship, and culture. We are teaching the courses, writing the scholarship, and shaping the cultures that propel legal education.
When we raise our collective voice, people listen. Defending democracy is not about politics. It’s about what we can do together. Throughout the next year and beyond, I look forward to working with all of you to advance this ever-important work
Review of Veterans Law Decisions of the Federal Circuit 2022-2023 Edition
Get PDFIn 2022 to 2023, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) continued its conversation with the Court of Appeals for Veterans Claims (“Veterans Court”), Department of Veterans Affairs (“VA”), and veterans to help sculpt the jurisprudence coming from the youngest of the federal courts, the Veterans Court. The Federal Circuit’s jurisprudence addressed ten main legal issues: class actions, petitions for writ of mandamus under the All Writs Act, defining standards of proof with the term “results from,” the benefit of the doubt doctrine post-Lynch, education benefits, less than honorable discharges, the rating schedule, implicit denials, equitable tolling and estoppel, and prejudicial error post-Tadlock
Prison Administrative Law
Get PDFThis Article examines a matching pair of gaps in the legal literature on prisons and the administrative state. On the one hand, prison law focuses on constitutional protections for prisoners. As such, it emphasizes the minimum conditions the Constitution ensures for the nearly two million individuals currently incarcerated throughout the United States. What this focus misses, however, is the administrative nature of these institutions. With vast powers delegated to prison departments, prison law often fails to fully engage with the administrative nature of power and decision-making within prison departments. This administrative structure shapes the conditions that prevail inside American prisons.
On the other hand, because scholarship on administrative law is written from a transsubstantive perspective, it tends to ignore prisons and focus instead on paradigmatic administrative agencies. In doing so, it fails to recognize the extent to which the protections deemed essential to, and legitimizing of, the administrative state fail either to properly function or even exist in the carceral state. Doctrines of judicial deference, a lack of political will on the part of legislatures to check prison departments, and a general failure to implement a system of internal checks and balances ensure that American prisons function with only limited substantive oversight or accountability.
After identifying and tracing the contours of these gaps in the literature, this Article argues that more direct engagement with the administrative nature of the carceral state could clarify significant shortcomings in both bodies of literature. Prison law, which has found the Constitution to provide a decreasing amount of protection for prisoners, may find a focus on administrative forms of accountability to be a new avenue for improving the conditions of confinement. Scholarship on administrative law, which tends to prefer substantial deference to administrative officials, must grapple with the full breadth of the administrative state and include prisons within its gambit. Doing so may force scholars of the administrative state to admit a greater need for oversight and accountability of some agency administrators, especially when those administrators have power and control over especially vulnerable populations like prisoners
Reinventing Operational Risk Regulation for a World of Climate Change, Cyberattacks, and Tech Glitches
Get PDFAround 30 years ago, banking regulators began to construct the concept of “operational risk,” and devise rules to manage this newly created risk category. This “invention” of operational risk assembled a grab-bag of otherwise uncategorized risks associated with banking operations; this Article argues that the resulting operational risk regulation framework isn’t very well suited to some of those risks. In particular, this Article demonstrates that the existing operational risk regulation framework is becoming an increasingly inadequate response to banks’ exposure to operational losses following damage to their physical assets and business disruption and system failures. This is so for two reasons. First, the current iteration of operational risk regulation does not respond to the significant uncertainty affecting banking system operations, which is being exacerbated by increasing technological complexity, cyberattacks, and climate change. Second, existing regulation doesn’t contemplate that operational risks can be transmitted to and from banks through technological and other non-financial channels, and so the potential for systemic contagion is underestimated.
This Article therefore sketches the beginnings of a “reinvented” approach to regulating for the operational threats of damage to physical assets and business disruption and system failures. The proposed framework places much less emphasis on risk-weighted capital regulation, favoring the alternative of simple buffers of equity that are more robust to uncertainty. In the absence of risk-weighted capital regulation, banking supervision will take on even greater importance. This Article therefore provides some guidance on what a “macro-operational” approach to banking supervision might look like, taking into account the possibility of technological and other forms of transmission of operational risk among banks. The Article concludes by recognizing that macro-operational supervision will not succeed in preventing all operational problems and therefore considers what new types of operations-specific emergency tools might need to be devised as a response
The EU-China CAI and the Uyghur Challenge in the Context of China\u27s Domestic Law Barriers to International Labor and Human Rights Standards
Get PDFWhile China engages in world commerce as a global player and is signatory to international labor and human rights standards, at the same time it uses treaty reservations and its own domestic laws to limit and undermine the full application of those standards. Concern from Western governments and global human rights groups regarding China’s longstanding treatment of the Uyghur people has resulted in a freeze in negotiations for the EU-China Comprehensive Investment Agreement (CAI). This was also a result of China’s failure to ratify or implement relevant United Nations (U.N.) covenants and International Labour Organization (ILO) conventions and placing reservations or domestic legal barriers on them, as well as foreign accusations of forced labor. Now that China has recently ratified ILO Convention Nos. 29 and 105 prohibiting forced labor, what will be the effect on the currently frozen negotiations of the EU-China CAI, now at an impasse due to issues relating to China’s alleged discrimination and forced labor treatment of Uyghurs in Xinjiang, China? In unbundling the legalities of this stalled draft agreement, this paper progressively examines the global obligations of the U.N. covenants and ILO conventions, as well as relevant provisions in the draft CAI, in the context of the Chinese approach to international labor and human rights standards, including the EU’s emerging due diligence laws and the 2021 Uyghur Forced Labor Prevention Act in the U.S.
Following Part I, Part II of this paper outlines the key international labor and human rights obligations of which China is a signatory, such as the Declaration of Human Rights, U.N. treaties, ILO labor standards, free trade agreements, and national legislation. Part III addresses the legal consequences of alleged non-compliance as it may affect the Uyghurs; and Part IV provides analysis and presents the dichotomy between international standards and Chinese practices. Part V offers a conclusion suggesting the use of national legislation and more effective remedies in international standards
The Secret\u27s Out: The Role of Restrictive Covenants in Trade Secret Law
Get PDFTrade secrets derive economic value from their classified nature, which leads companies to implement legal measures to prevent the spread of their confidential company information to the public. Restrictive covenants within employment agreements are a common form of these legal measures. However, because of employers’ restrictive terms, states are placing regulations on the scope of these agreements. With limited ability to contract their employees away from sharing their confidential information with direct competitors, companies utilize alternate methods to protect their trade secrets
U.S. Securities and Exchange Commission and the Deep Administrative State : A Case Study of Its ESG Rules
Get PDFThis study examines the highly controversial “environmental, social, and governance” (ESG) rules that were adopted by the Securities and Exchange Commission (SEC) in 2024. Those rules require large public companies to disclose their policies for dealing with climate change and report their greenhouse gas emissions. Critics charge that those rules are the product of a “deep state” administrative agency that is operating outside the checks and balances imposed by the Constitution on other government actors. The study relates the background for these deep state concerns and the constitutional and statutory restraints that were intended to prevent the development of such unaccountable government agencies. The study then turns to the SEC and describes how it was created by Congress to act as a professional, non-partisan “administrative” body with the mission of requiring “full disclosure” of financial information for the protection of “retail” investors. The study shows how, at the behest of progressive activists and with the support of large institutional money managers, the SEC used the full disclosure concept to promote “green” investing strategies through its ESG rulemaking that led to widespread “green washing” fraud. The study concludes that, while recent Supreme Court decisions have strengthened judicial review of the SEC’s rulemaking, the agency is likely to continue to use its full disclosure mandate as a pretext to promote social programs that have little to do with investor protection. In order to prevent such overreaching, the study recommends that Congress require its prior approval of “major” SEC rules and proposes a practical approach for that process
The New Governance of Climate Change: Reconceptualizing Common Concern to Embrace Non-State Actors
No full textThe current global governance of climate change involves a wide range of state and non-state actors interacting in a variety of international and national processes. At its center is the global climate treaty regime, which, as an international treaty-making forum, is formally viewed as a primarily state-centered exercise. Yet, the Conferences of the Parties of the global climate treaty regime includes a wide and dynamic mix of non-state participants, including representatives from civil society organizations, youth coalitions, indigenous groups, academia, and the private sector. These representatives raise important perspectives on the disproportionate impacts of climate change and climate change policies. Amplifying these non-state voices and integrating them further into policy-setting discussions is imperative for addressing climate change and allocating limited resources in an effective, fair, and equitable manner.
However, during the last 30 years since the adoption of the first climate convention, and even as the evolution in global climate governance has diversified to other forums and reflected the engagement of such a wide variety of non-state actors, the climate change regime has formally remained a solely state-centered enterprise. The regime operates only on states’ participation—responsibility and accountability do not extend beyond the states. This narrow view, reinforced by the traditional view of international law, bifurcates the global response to climate change according to the outdated views of sovereignty and hard law.
To integrate non-state actors\u27 participation in and contribution to climate mitigation and adaptation, this thesis argues that the boundaries of international climate law should be expanded through reconceptualization of the common concern principle. By analyzing the limitations of the state-centered approach and reinterpreting the narrative of international law-making through the lens of constructivism, this thesis clarifies the meaning and implications of common concern and introduces a conceptual model that harmonizes spatial (state actors), social (non-state actors), and temporal (future generations) elements. Whereas the current function of common concern assumes a traditional view of the concept as a call for states to cooperate towards a common objective, the conceptual model presented here further develops the concept of common concern into a socially constructed principle. Thus, redefined, common concern both explains and justifies the new governance of climate change, in which non-state actors play an equally important role as state actors in contributing and responding to the constant formation and deformation of what international environmental law is and what it should be.
The last chapter includes specific examples of how the common concern principle can serve as a guiding framework for the new governance of climate change. The thesis focuses on the private sector and civil society, highlighting the different roles they play; the private sector bears the responsibility to reduce business impact on the environment while civil society participates in global climate action to ensure that safeguards are in place and the rights and interests of vulnerable groups are protected. For the private sector, the author suggests establishing Corporate Determined Contributions (CDCs) to align and catalyze private climate efforts alongside the existing Nationally Determined Contributions (NDCs). Lastly, the chapter provides some practical recommendations to empower civil society under the new governance of climate change, including mobilizing non-state coalitions to respond to urgent environmental crises with global effects, strengthening the civil society\u27s role in the UNFCCC reporting framework, and amplifying the voices of those affected by climate change within international institutions to ease plaintiffs\u27 burden of proving standing in climate lawsuits
Why the Supreme Court Rejected the Prospect Theory of Copyright Scope
Get PDFIn Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith (“Warhol”), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner\u27s right to make derivative works from a protected work and a user\u27s right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright. This Essay argues that these arguments were instead grounded in a form of ““prospect theory” of copyright scope that would give the copyright owner the right to stake a claim to nearly all secondary works created from a source work. The Court rejected these arguments, first in Google v. Oracle and then again in Warhol. Instead, both cases reaffirmed that the user-centered transformative use analysis focuses on the public benefit that flows from the secondary use of a copyrighted work. This Essay calls attention to these arguments grounded in prospect theory because, even though they have been soundly rejected, they are likely to be repeated in future fair use litigation. Prospect theory is not the law, nor should it be