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Thoughts on Corporate Law and the Problem of Human Capital
Get PDFThe theme of this Symposium takes me back more than thirty years to work I did on corporations and human capital at the Brookings Institution in the 1990s. Although I have been on the faculty of law schools since 2000, I am not a lawyer, and in fact, never went to law school. I did my Ph.D. in economics, and I wrote my dissertation on merger waves-in particular, I developed a macroeconomic theory to explain the wave of corporate mergers and takeo- vers that happened in the 1980s. The most prominent and popular idea about takeovers at the time was that corporate takeovers were driven by runaway agency costs that caused the shares of target firms to trade at prices well below their potential value, opening up room for savvy investors to bid for control, and make money by reducing the agency costs in the acquired firms. This theory never seemed right to me because historical data suggests that corporate mergers had mostly occurred in distinct waves over the prior century. I couldn\u27t think of any good reason why agency costs, or any other form of bad management behavior, would happen in waves, or be cyclical. Moreover, many of the mergers of the 1980s involved substantial financial restructuring. Why was there such a sudden surge of hostile takeovers and leveraged buyouts in the 1980s, when these sorts of transactions had not hap- pened to a significant extent in earlier decades? Could it be that bad manage- ment happens in waves
Fragmentation in Global Climate Governance: What Lessons from COVID-19?
No full textThe evolving climate crisis is a cross-sectoral and cross-border crisis, whose causes and effects span all sectors of society and all regions of the globe. International law and institutions are, therefore, expected to play a key role in determining our ability to cope with the mounting crisis and mitigate its multifaceted impacts. However, runaway climate change has emerged into a reality of fragmentation in international law and governance, where aspects of the crisis are covered by a growing number of international norms and international institutions with distinct, but interrelated jurisdictions. The aim of this Article is to expose critical challenges that this reality of fragmentation holds for international law and organizations in their attempt to counter the multisectoral climate crisis challenges that have so far largely gone unnoticed in the existing legal debate on the fragmentation of international law and governance. This Article does so by taking a comparative look at another cross-border and multisectoral crisis, the recent COVID-19 pandemic, which revealed the pressing gaps facing international organizations when called upon to cooperate around a global problem that traverses sectors and issue-areas gaps that hindered the ability of these institutions to meet the coronavirus challenge and deliver a cohesive and timely global response. Against this backdrop, this Article argues that the COVID-19 pandemic and the deficient cooperation marked by the response of international organizations to the crisis offer important lessons that can be used to better tackle the growing climate crisis under conditions of fragmentation. Above all, these lessons suggest that, as we chart our way out of the waning COVID-19 crisis, we must expand the bounds of the existing fragmentation debate, as well as reconstruct the legal and institutional structures governing cooperation between international organizations to ensure that they are well situated to tackle the climate crisis and the emergencies it is expected to generate. The COVID-19 crisis provided us with a critical reality check for climate policy and international governance. This reality check and the lessons it offers should not go unnoticed
Why Tennessee’s ELVIS Act Is the King of Artificial Intelligence Protections
Get PDFArtificial intelligence (AI) is evolving and advancing quickly. As AI advances, it presents novel legal issues for individuals and industries alike. For example, AI can now mimic the voices of famous musicians so well that it can be almost impossible for listeners to discern whether the vocals are from those musicians or generated with AI. Yet under the current legal framework, new works that mimic a famous artist’s voice can be created and distributed by anyone without the consent of the musician and without any legal repercussions.Fortunately, lawmakers are proposing legislation to protect against the unauthorized use of another’s voice, image, or likeness in the face of AI. The first AI-focused state law, Tennessee’s Ensuring Likeness Voice and Image Security Act (ELVIS Act), was passed on March 21, 2024, and went into effect on July 1, 2024. Multiple state and federal legislators have since proposed similar laws. This Article argues that the ELVIS Act is a gold standard for AI protections in general and for sound recording artists in particular, and that the protections that it provides should be incorporated into a federal right of publicity law. Indeed, many of the ELVIS Act’s key provisions are included in introduced federal legislation relating to AI protection of voice, image, and likeness. Federal legislation that includes many of the themes from the ELVIS Act would protect artists from having their voice unfairly appropriated by emergent AI technology and used in ways that they did not authorize. It would provide uniform protections and thereby prevent the current patchwork system of publicity laws from growing even further apart. With AI evolving faster than any other sector in American society, including the law, lawmakers can shore up the gaps now by quickly passing national legislation
Tackling Bias in Sport: Recognizing the Impact of Identities
Get PDFStudies suggest participation in organized sports--from childhood to adulthood--promotes positive physical, social, emotional, and intellectual benefits that impact individuals and their communities over a lifetime. Sports participation in early childhood and adolescence also leads to higher self-esteem, greater wage-earning potential, lower health costs, reduced chronic disease, and lower levels of depression. In adulthood, participating in sports provides social connection, personal enjoyment, and improved health. In US society, sports are often viewed as a popular, viable, and sustainable avenue for social mobility. While the benefits of sports participation are unequivocal, the visibility and influence of star athletes, along with the way sports are embedded in US culture, may perpetuate the impression that sports—and their benefits—are broadly accessible to all people. While this is true for some, access to organized sports and associated benefits vary widely by sex, race, sexual orientation, and gender identity. More specifically, women, persons of color, and members of the LGBTQ+ community may be less likely to participate in organized sports due to discrimination and harassment experienced in various settings. This Article illustrates the intersectionality of social identities, institutions, and law as they inhibit a person or group’s access to sports based on race, sex, gender identity, or sexual orientation and explores how existing legal antidiscrimination frameworks might help promote access to sports, particularly for historically disadvantaged groups
Eavesdropping: The Forgotten Public Nuisance in the Age of Alexa
Get PDFAlways-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.
Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: privacy violations by always- listening devices. Plaintiffs have sued Google, Amazon, and Apple for their smart devices that listen and record snippets of conversations. But not one of these cases cites public-nuisance law as a basis for liability, even though the underlying wrong eavesdropping was one of the categories of conduct that fell within the earliest definitions of public nuisance.
This Article explores the history of eavesdropping as a public nuisance at common law and throughout U.S. history. It explains the public nature of the wrong underlying eavesdropping and why actions that invade individuals\u27 privacy should be understood as wrongs against the public at large. It then applies public-nuisance law to always-listening devices, arguing that public nuisance could serve as a basis for addressing privacy issues arising from modern technology or as a common-law analogue to make intangible privacy harms justiciable in federal court
Res Judicata and Multiple Disability Applications: Fulfilling the Praiseworthy Intentions of the Fourth and Sixth Courts
Get PDFIn the United States, the application process to receive disability benefits through the Social Security Administration is often a tedious, multistep procedure. The process becomes even more complex if a claimant has filed multiple disability applications covering different time periods. In that circumstance, the question arises as to whether an administrative law judge hearing a claimant’s second application must make the same findings as the administrative law judge who heard the first application. In other words, how should res judicata function in the administrative law context when a claimant has filed for disability multiple times? Currently, circuits differ on this question. This Note proposes a solution aimed at providing uniformity and ensuring disabled people receive the benefits they need. It proposes that res judicata should not bind findings that would harm a claimant on a future application, while res judicata should bind findings that would aid a claimant on a future application unless new clear-and-convincing evidence indicates the claimant’s condition has improved. The Note then details how such a proposal is within the Social Security Administration’s authority and is consistent with Supreme Court jurisprudence on the matter
The Impact of Banning Confidential Settlements on Discrimination Dispute Resolutio
Get PDFThe #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop secret settlements by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.
But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public forum. The onus is therefore on victims to go public, and understandably, many victims are wary of doing so. After all, even from a pro-victim perspective, if employers cannot require confidentiality in settlement, claimants could be made worse off through a lower likelihood of settlement and a lower ultimate payout. In this situation, unless victims\u27 allegations are made public, bans on secret settlements may not deter discrimination.
At the time states enacted confidentiality bans, there was no empirical evidence supporting these bans\u27 deterrent effects. This Article offers the first empirical assessment of laws barring confidentiality provisions in employment discrimination settlements. Using data on large samples of employment disputes, we leverage the variation in state legislation to empirically test the effects of these bans on filing and disposition of discrimination claims in arbitration and courts. Our results suggest an increase in the filing of claims in federal court, which is encouraging evidence of the overall deterrence value of the laws. However, the results also show a small decrease in settlement in federal court and arbitration, which may weaken the deterrence value of confidentiality bans unless plaintiffs are more likely to prevail. To achieve a higher deterrent effect, legislatures should couple these bans with additional measures, such as increasing the likelihood that a victim prevails in court and increasing the amount of damages that a victim can be awarded
