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Beyond Unprecedented S2 Ep3: The Rise – and Results – of Shareholder Activism
Get PDFThe coronavirus pandemic has unfolded alongside two other crises confronting the nation and the world – climate change and racial justice. That’s given energy to shareholder activists who are pressing corporations on the business risks posed by a warming planet and by the lack of diversity in corporate board membership. Engine No. 1, a small hedge fund, surprised Exxon by winning a proxy battle over climate risk. But it needed the votes from big institutional investors to do it. Are giant asset managers like Vanguard and BlackRock willing to get into the fray over climate and equity issues?
Anne E. Robinson ’94, Vanguard general counsel, joins co-hosts Professor Eric Talley and Research Fellow Kate Waldock \u2723 to talk about environmental, social, and governance (ESG) issues and the role of institutional investors in supporting shareholder proposals.https://scholarship.law.columbia.edu/beyond_unprecedented_2/1003/thumbnail.jp
Beyond Unprecedented S2 Ep1: You Can’t Hire Me, I Quit!
Get PDFIt\u27s being called the Great Resignation: Reports show that millions of American workers have disappeared from the labor force since the onset of the COVID-19 crisis. A record number of people are quitting their jobs. Restaurants can’t find wait staff, retailers are searching for seasonal sales help, and airlines have canceled flights. At the same time, a wave of workers is unionizing and even going out on strike, and public support for labor unions is at a 55-year high. Have Americans looked at the current economy and decided they want work to be fundamentally different?
Professor Kate Andrias, a scholar on labor law and a commissioner and the rapporteur for the Presidential Commission on the Supreme Court of the United States, joins co-hosts Professor Eric Talley and Research Fellow Kate Waldock ’23 to discuss how workers are asserting their rights and the future of work in the post-pandemic era.https://scholarship.law.columbia.edu/beyond_unprecedented_2/1001/thumbnail.jp
China and the WTO: Why Multilateralism Still Matters
No full textChina’s accession to the World Trade Organization (WTO) in 2001 was rightly hailed as a huge step forward in international cooperation. However, China’s participation in the WTO has been anything but smooth, with China alienating some of its trading partners, particularly the United States. The mismatch between the WTO framework and China’s economic model has undermined the WTO’s ability to mitigate tensions arising from China’s size and rapid growth. What has to change? China and the WTO demonstrates that unilateral pressure, by the United States and others, is not the answer. Instead, Petros Mavroidis and André Sapir show that if the WTO enacts judicious reforms, it could induce China’s cooperation, leading to a renewed confidence in the WTO system.
The WTO and its predecessor, the General Agreement on Tariffs and Trade, are predicated on liberal domestic policies. They managed the previous accessions of socialist countries and big trading nations, but none were as large or powerful as China. Mavroidis and Sapir contend that for the WTO to function smoothly and accommodate China’s unique geopolitical position, it needs to translate some of its implicit principles into explicit treaty language. To make their point, they focus on two core complaints – that Chinese state-owned enterprises (SOEs) benefit from unfair trade advantages, and that domestic companies, private as well as SOEs, impose forced technology transfer on foreign companies as a condition for accessing the Chinese market – and they lay out specific proposals for WTO reforms.
In an age of global trade disputes, China and the WTO offers a timely exploration of unprecedented challenges to the current multilateral system and fresh ideas for lasting solutions.https://scholarship.law.columbia.edu/books/1293/thumbnail.jp
Principles of International Law and the Adoption of a Market-Based Mechanism for Greenhouse Gas Emissions from Shipping
Get PDFEmissions from shipping are a significant driver of human-induced climate change. International action to date has not succeeded in setting those emissions on a sustainable trajectory. The International Maritime Organization has committed to implementing an effective, international approach to tackle international shipping’s contribution to climate change.
This paper considers international law principles, exploring whether and how these principles may provide a basis for the IMO to address those contributions. The polluter pays principle, which counsels that whoever produces pollution should cover the costs their pollution imposes on others, is a doctrine of international law that offers strong support for the IMO to adopt a market-based mechanism to reduce greenhouse gas emissions. Other principles of international law provide that any market-based mechanism the IMO adopts should be consistent with international climate agreements, responsive to the different contributions that nations and companies have made to the climate problem, built on the best available science while resolving any uncertainties in favor of less risk to the environment, and respectful of universally-recognized rights – both individual and national – to equity, life, and fair treatment
The Impact of Particular Provisions of the 2017 Tax Cuts and Jobs Act on the United States Economy Amidst the Covid-19 Pandemic
Get PDFThe Tax Cuts and Jobs Act is the most significant overhaul of the U.S. federal tax system in the last two decades. This paper seeks to discuss some of its most significant provisions and examine their overall impact on the U.S. economy, especially throughout the ongoing coronavirus pandemic.
This paper begins by undertaking an overview of the legislative history of the Act and then proceeds to discuss three provisions of the Tax Cuts and Jobs Acts which have had a tremendous impact on the U.S. economy by altering some major provisions of the United States Internal Revenue Code of 1986. I conclude my review and discussion of each provision by providing a critique of the provision and proposing recommendations and amendments which should be made to the Act, if these provisions are to remain viable, in light of recent developments
Discharging the Discharge-for-Value Defense
Get PDFDespite its massive size, the corporate debt market is often considered a sleepy refuge for the risk-averse. Yet, corporate debt contracts are often mind-numbingly detailed. That complexity – when coupled with the financial stakes in play – can be a recipe for calamity. And in late 2020, calamity struck in the form of an accidental $1 billion payoff sent to Revlon Inc.’s distressed creditors – not by Revlon itself but rather by Citibank, the administrative agent for the loan. When several lenders refused to return the cash, Citibank commenced what many reckoned would be a successful (if embarrassing) lawsuit to claw it back. But in a dramatic 2021 opinion, a New York federal court sided with the creditors, applying an obscure equitable doctrine known as the Discharge-for-Value defense. The lenders could keep their wayward windfall, and Citibank got stuck with a sizeable write-down. Regardless of how it comes out on appeal, the case seems destined to feature prominently in contracts classes and textbooks for years to come.
Against this backdrop, this Article makes three contributions. First, it spotlights several doctrinal and logical irregularities in the district court’s opinion. Second, it builds on these inconsistencies to critique the opinion from an economic policy perspective. Third (and most substantially), it presents novel empirical data to analyze how market participants have reacted to the opinion. Consistent with the policy critique, I document a rapid, precipitous trend towards writing and/or amending debt contracts to nullify the Citibank opinion in its entirety, manifested in a variety of “Revlon blocker” provisions that have appeared in hundreds of publicly disclosed contracts. The firms that adopt Revlon blockers are systematically the largest and most sophisticated companies in the public markets, and their rejection of Citibank appears to have met with general market approval. Beyond demonstrating how legal theory and empirical evidence can helpfully interact, this analysis underscores the critical role that default rules play in contract law and policy, and the high stakes involved in getting them right
The Future of International Commercial Arbitration
Get PDFAlthough international commercial arbitration is not subject to as much criticism as investor-State arbitration, it is nonetheless facing challenges going forward. These challenges are several, and only some can be addressed in this chapter. Some relate to concerns that have been with international arbitration for a long time. These include costs, delay and excessive formality, as well as arbitrator neutrality. Others – arbitration ethics, diversity, and transparency – are not new, but are taking on greater urgency. Still others simply represent new developments more or less extrinsic to international arbitration but with which international arbitration must cope. Among these changes to the broader international arbitration landscape are the data protection movement and the rise of both settlement agreements and international commercial courts
US Second Circuit Court of Appeals Tames \u27Transformative’ Fair Use; Rejects ‘Celebrity-Plagiarist Privilege’; Clarifies Protectable Expression in Photographs
No full textThe Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.
In addition to analyzing the Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith, this Comment also addresses the relevance to transformative use of the Supreme Court’s ruling in Google v. Oracle, and concludes that the highly software-specific context of that case cabins its fair use analysis to functional code far from the “core of copyright.
Elaine Massacre: How a Black Labor Movement Was Met with a Violent White Mob
No full textIn 1919 in Elaine, Arkansas, white mobs and federal troops killed hundreds of Black residents – and America has tried to forget the story.https://scholarship.law.columbia.edu/ross_smith_red_summers/1005/thumbnail.jp
The Big Data Regulator, Rebooted: Why and How the FDA Can and Should Disclose Confidential Data on Prescription Drugs and Vaccines
Get PDFMedicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all safety and efficacy data for drugs and vaccines with minimal redactions, deploying data use agreements to ensure the most sensitive data is handled appropriately. In line with the literature that has been critical of simplistic calls for “transparency,” we urge a more contextual form of “data publicity.” We also show that clinical trial data publicity can be achieved without legislative reform, while respecting privacy, protecting any legitimate trade secrets, and maintaining or improving incentives to innovate. The FDA must adapt to protect and expand structural accountability and to protect the public and its trust. The model we offer here could guide similar action at other regulatory agencies as well, enabling better oversight of information-intensive industries and helping safeguard the agencies themselves