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The Case for the CCB: A Defense of the Constitutionality of the Copyright Claims Board
Get PDFCopyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act, thus creating the Copyright Claims Board (“CCB”) to adjudicate small copyright disputes.
Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress cannot set up non-Article III courts to hear cases involving public rights. Critics renewed their concerns in the aftermath of the Supreme Court’s June 2021 decision in United States v. Arthrex, in which the Court found that the Patent Trial and Appeal Board administrative patent judges (“APJs”) wielded unreviewable authority that violated the appointments clause. Furthermore, a possible challenge to the constitutionality of the CCB could be forthcoming since the CCB is now operational.
This Note analyzes the evolution of Appointments Clause and Article III jurisprudence and finds that the CCB is constitutionally constructed. While copyright is likely a private right, the CCB is still constitutionally permitted to hear these claims because the parties voluntarily consent to use the CCB. The voluntary nature of CCB proceedings plus the fact that these small cases are typically not heard by federal courts ease Article III and reviewability concerns.
Part I provides background information to the passage of the CASE Act and explores arguments for the necessity of the CCB. Part II outlines the structure of the CCB. Parts III and IV respectively detail relevant Appointments Clause and Article III jurisprudence then apply it to the CCB. Parts V and VI discuss the possible arguments critics may lodge against the CCB in a constitutional challenge and how these invariably fall short. Finally, Part VII takes a practical look at how the Supreme Court as currently constructed might analyze the CCB’s constitutionality
Barbarians Inside the Gates: Raiders, Activists, and the Risk of Mistargeting
Get PDFThis Article argues that the conventional wisdom about corporate raiders and activist hedge funds — raiders break things and activists fix them — is wrong. Because activists have a higher risk of mistargeting — mistakenly shaking things up at firms that only appear to be underperforming — they are much more likely than raiders to destroy value and, ultimately, social wealth.
As corporate outsiders who challenge the incompetence or disloyalty of incumbent management, raiders and activists play similar roles in reducing “agency costs” at target firms. The difference between them comes down to a simple observation about their business models: raiders buy entire companies, while activists take minority stakes. This means that raiders are less likely to mistarget firms underperforming by only a slight margin, and they are less able to shift the costs of their mistakes onto other shareholders. The differences in incentives between raiders and activists only increase after acquiring their stake. Raiders have unrestricted access to nonpublic information after acquiring ownership of a target company, which allows them to look under the hood to determine whether changing the target’s business strategy is truly warranted. Activists, by contrast, have limited information and face structural conflicts of interest that impair their ability to evaluate objectively what’s best for the target company.
This insight has profound implications for corporate law and policy. Delaware and federal law alike have focused on keeping raiders outside the gates, but they ignore the real threat: activists that are already inside. This Article proposes reforms to both state and federal law that would equalize the regulation of raiders and activists
The Contribution of International Commercial Arbitration to Investment Arbitration
No full textInternational commercial arbitration is an old and venerable form of international dispute resolution for commercial disputes arising out of contract. Much more recently there has grown up an entirely new species of international arbitration, known as investor-State arbitration, for disputes arising out of bilateral international treaties for the mutual protection of investors and investments. This chapter examines the extent to which the practices of international commercial arbitration are apt for the resolution of treaty-based international investment disputes and the extent to which they are not
Our Kind of People 4
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Contractual Evolution
Get PDFConventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each of these factors contributes to the underlying evolutionary process, and their relative prominence bears directly on the speed, direction, and desirability of how contractual innovations diffuse. Using a formal model of bargaining in a sequence of similar transactions, we demonstrate how different evolutionary patterns can manifest over time, in both desirable and undesirable directions. We then take these insights to real-world dataset of over 2,000 merger agreements negotiated over the last two decades, tracking the adoption of several contractual clauses, including pandemic-related terms, #MeToo provisions, CFIUS conditions, and reverse termination fees. Our analysis suggests that there is not a “one size fits all” paradigm for contractual evolution; rather, the constituent forces affecting term evolution appear manifest in varying strengths across differing circumstances. We highlight several constructive applications of our framework, including the study of contract negotiation unfolds when price cannot easily be adjusted, and how to incorporate other forms of cognitive and behavioral biases into our general framework
Duty and Diversity
Get PDFIn the wake of the brutal deaths of George Floyd and Breonna Taylor, lawmakers and corporate boards from Wall Street to the West Coast have introduced a slew of reforms aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope, and degree of legal obligation and practical effects.
In this Article, we provide an old answer to the new questions facing DEI policy and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that corporate fiduciaries are bound by their duties of loyalty to take affirmative steps to make sure that corporations comply with important civil rights and antidiscrimination laws and norms designed to ensure fair access to economic opportunity. We also show how corporate law principles like the business judgment rule do not just authorize, but indeed encourage American corporations to take effective action to reduce racial and gender inequality and increase inclusion, tolerance, and diversity given the rational basis that exists connecting good DEI practices, corporate reputation, and sustainable firm value. By both incorporating requirements to comply with key antidiscrimination laws and enabling corporate DEI policies that go well beyond the legal minimum, corporate law offers critical tools with which corporations may address DEI goals that other reforms do not — and that can embed a commitment to diversity, equity, and inclusion in all aspects of corporate interactions with employees, customers, communities, and society generally. The question, therefore, is not whether corporate leaders can take effective action to help reduce racial and gender inequality — but will they
Looking Out, Looking In: How India can Respond to a Carbon Border Adjustment Mechanism on the Principles of Justice and Equity in the Net-Zero Transition
Get PDFThe net-zero transition is a curious term. It is multi-dimensional. It must be inclusive, equitable, and just—considering the different realities of various economies and various pathways to achieving net-zero. One of the merits of global climate action since the Paris Agreement in 2015 has been its attempt to balance climate change justice with inter-generational justice and environmental justice. But as evidenced from the international momentum brewing in a post-Paris world leading up to Glasgow, the problems of justice are not abated with a net-zero transition — they are indeed being rendered more poignant by it. While it is just to argue that the urgency of climate change can be considered vast enough to accelerate the global energy transition regardless of ideological differences, it is a textbook answer — the problems of justice, fairness, and equity cannot be ignored when rubber hits the road. How does then one draw a ‘line’ between this justice and that justice? Today, one throws around concerns of “just sustainability” only in the context of a post-development era and agenda. Addressing this struggle requires us to understand the perspectives of the developing countries viewing capitalism as the driver of a nation’s development and balancing their goals to eradicate poverty, provide all citizens access to electricity, basic healthcare, infrastructure, food and livelihood — with their duties to adopt policies to reduce greenhouse gas emissions by businesses extracting fossil fuels, clearing forests, and engaging in other activities that contribute to global warming. All the talk and action concerning the possible new global economic order after the announcement of the European Union’s proposal on the ‘Carbon Border Adjustment Mechanism’ has only implicitly rekindled this anxiety around global justice in global economic change policies on climate change. Carbon border adjustments are becoming an increasingly important topic owing to growing concerns on greenhouse gas emissions, particularly in energy intensive industries like cement and steel — areas that are particularly hard to decarbonize without requisite technological advancement and are also the essential elements to an economy’s development aspirations.
This essay will explore the ramifications of the Carbon Border Adjustment Mechanism proposal on the developing country of India and its individualized pathways to achieving their commitments under the Paris Agreement. At one end of the spectrum, we will analyze this global trade-restrictive environmental measure against the expansive notions of fairness and climate justice in international responses to climate change that were committed by the developed world under the Paris Agreement, which specifically recognizes that the parties may be affected not only by the impacts of climate change but also by the impacts of the measures taken in response to it. At the other end, we will address the question of whether political ideologies in India can still use their international law “right to develop” as an excuse from imposing similar environmental and other restrictions that developed countries observe. Would sacrificing climate change goals for development quickly become a bad trade-off for India if failure to reduce emissions leads to dire consequences
What Comes Now? Religious Liberty and the End of Roe
Get PDFNew York, NY – The Law, Rights, and Religion Project at Columbia Law School, an academic think tank that conducts research and policy analysis on the complex ways in which religious liberty rights interact with other fundamental rights, has a number of materials that can help to shed light on three key issues around the possible end of Roe v. Wade in light of the draft Supreme Court opinion released yesterday
Curriculum-Based Professional Learning: The State of the Field
Get PDFProviding curriculum-based professional learning at scale is challenging, complex, and contextualized. It requires time, people, money, and expertise at the systems-level and at the ground-level. No single school system, organization, or actor can accomplish it alone. Instead, scaling the curriculum-based professional learning on which HQIM relies requires a field of diverse, interdisciplinary actors from across the education sector who collectively co-produce improved professional learning through research, strategy, policy, and direct service. Put another way, to strengthen educational experiences and outcomes for students, proponents of HQIM and curriculum-based professional learning must build a strong, resilient field of individuals and organizations working together to transform teaching and learning.
Building on an analysis of information provided by 146 people over the course of 122 interviews, as well as an extensive review of secondary sources, this research reveals that the field of curriculum-based professional learning is emerging. While its impact is not yet consistently felt across the education ecosystem, its infrastructure and field-level agenda are fairly well-developed. Its actors, knowledge base, and resources are still in more nascent stages and require focused attention for the field to reach its potential for impact
Regulation of Polyfluoroalkyl Chemicals in New York
Get PDFPerfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are two polyfluoroalkyl chemicals (PFAS) – a class of over 7,000 compounds with unique chemical structures that repel lipids and water. As a result, PFOA and PFOS have been used in numerous household products, such as nonstick cookware and stain-resistant carpets, and commercial applications such as firefighting foam. PFOS and PFOA are frequently referred to as “emerging contaminants,” a label with no precise regulatory definition but generally understood to refer to chemicals for which there are few published standards designed to protect human health and the environment from perceived hazards. Many PFAS compounds are also often referred to as “forever chemicals” because of their persistence in the environment.
Manufacturers started phasing out the production and most uses of PFOS in 2002. In 2012 the Environmental Protection Agency (EPA) began requiring certain public water supply systems to monitor for several PFAS chemicals pursuant to the Safe Drinking Water Act. However, federal and state environmental agencies did little to regulate PFAS for several more years. However, in the mid-2010s, New York moved on multiple fronts to regulate PFAS. The Legislature has adopted several statutes, the New York State Department of Environmental Conservation (DEC) has promulgated regulations and issued guidance, and the New York State Department of Health (DOH) hasput in place Maximum Contaminant Levels (MCLs) for drinking water. All these actions are aimed at lowering exposure to PFOA and PFOS. At present, New York regulates PFAS in water, soil, air, food packaging, children’s products and fire-fighting foam.
In this article we survey some of the key developments in this area and consider how these requirements are impacting site remediation, environmental permitting and environmental due diligence in New York