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The Impact of Banning Confidential Settlements on Discrimination Dispute Resolution
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’ 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’ 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
Breaking Cultural and Financial Barriers in Olympic Sports
Get PDFNelson Mandela has said that “[s]port has the power to change the world. It has the power to inspire. It has the power to unite people in a way that little else does . . . . It is more powerful than governments in breaking down barriers.” Sports can have tremendous value, not only to the individual participants in promoting physical and mental health, skills, and teamwork, but also to society in fostering community, civic pride, and a sense of belonging, even among the fans. Sports have significant economic, political and cultural impacts at the local, national, and international spheres.
This Article considers a new addition to the Olympic Programme, “breaking,” as a potential means to expand Olympian demographics and “break” cultural, racial, and economic barriers. It examines the governing structure and fundamental principles of the Olympic Movement, analyzing whether breaking is itself a sport; it explores issues of defining what is a sport, who decides whether a sport fits that definition, and the process for recognizing an Olympic sport employed within the United States and at the international sport level. Finally, the Article considers whether breaking can achieve and sustain expanded opportunities and access for diverse athletes worldwide
Regulating Business and Human Rights through Soft and Hard Law: Lessons from International Nuclear Law
No full textFor half a century, States and international organizations have made efforts to regulate the conduct of transnational business entities through international standards. However, all attempts to adopt binding international rules on business and human rights (BHR) have failed so far, mainly due to the diverging interests of States from the Global North and the Global South. Instead, States and other relevant stakeholders, such as international organizations, transnational corporations, and civil society, have adopted non-binding soft law instruments to curb corporate human rights abuses. Still, the continuous and often flagrant human rights violations by corporations speak against the effectiveness of these soft law instruments. In 2014, only three years after the adoption of the widely commended United Nations (UN) Guiding Principles on Business and Human Rights, the Human Rights Council passed a resolution to start the negotiations of a legally binding instrument (LBI) on BHR. While some see the LBI negotiations as a historic opportunity, States continue to disagree on the need for the international harmonization of standards, with major players like the United States and the European Union being highly skeptical of adopting a BHR treaty. By drawing lessons from international nuclear law, this Article argues that BHR should be regulated through a mix of soft and hard law instruments. It seeks to contribute to the scholarship on BHR that has sought inspiration from other fields of international law that regulate corporate activities, such as anti-corruption law, environmental law, and the law of the sea. The regulatory regime in the nuclear field is well-established and consists of an increasingly dense web of soft law and hard law instruments covering corporate conduct in the nuclear sector. This Article first examines past failed attempts to adopt binding international standards on BHR and gives an overview of the applicable BHR soft law instruments (II). Based on insights gained from international nuclear law, the Article then discusses the upsides and downsides of soft law in regulating corporate conduct (III). The Article concludes by addressing the trend toward taking more BHR hard law measures at the national level. Building on international nuclear law, the Article makes a case for the international harmonization of legally binding standards, which would benefit States from the Global South and Global North (IV)
MFW Defense Available despite Control Stockholder\u27s Refusal to Negotiate with Credible Competing Bidder
No full textIn Smart Local Unions and Councils Pension Fund v. BridgeBio Pharma, Inc., C.A. No. 2021-1030-PAF (Del. Ch. December 29, 2022) ( BridgeBio Pharma ), the Delaware Court of Chancery ( Chancery Court ) examined the negotiation and approval process underlying a control stockholder\u27s buyout of minority shares via a freeze-out merger. As usually is the case in control stockholder-related litigation in Delaware, the key gating issue for Vice Chancellor Paul A. Fioravanti, Jr. was selection of the appropriate standard of judicial review.
I. LEGAL BACKGROUND
Traditionally, the Chancery Court reviewed challenges to control stockholder-related transactions under the entire fairness standard-the most exacting standard of review. In this context, the control stockholder bears the heavy burden of establishing the transaction\u27s entire fairness. See Robert S. Reder, MFW Framework Requires Majority-of-Minority Stockholder Approval Even When Controller Structures Transaction to Avoid Statutory Stockholder Vote, 75 Vand. L. Rev. En Banc 157 (2022)
Toward a South African Fair Use Standard
No full textIn the midst of the twentieth century, a South African musician and composer named Solomon Linda wrote Mbube. Mbube never prospered to the heights reached by its foreign progeny, The Lion Sleeps Tonight. Disney accrued millions of dollars capitalizing on Linda\u27s magnum opus, while Linda died a pauper. In the aftermath, the post- colonial Republic of South Africa remains scarred and reminiscent of the abject atrocities of Western encroachment. Thus, when the American-incubated doctrine of fair use, a provision that allows for the usage of copyrighted works for an infinite number of purposes, introduced itself at the doors of the National Assembly of Parliament, it was to no one\u27s surprise that the South African public strongly resisted the doctrine which they feared would expose their works to Western exploitation. As a result, President Ramaphosa reserved the fair use doctrine, and referred the Bill back to parliament for breach of international law and deprivation of the constitutional right of property. This Article examines these two postulations, inter alia, and confutes the omnipresent misconceptions of fair use that have been promulgated throughout South Africa by several competing interest groups. It begins by delving into the history of copyrights in South Africa all the way to the introduction of the fair use doctrine in 2015. The Article then discusses the context revolving around the introduction of fair use, which portrays the numerous perceptions projected by the South African copyright industry, the academic sector, tech companies and conglomerates, the print disabled, and US and European delegates. Those that impugn the doctrine conjecture that it is in breach of the Berne Convention\u27s Three-Step Test, deprives authors of their constitutional right to property, is incongruous with other specific copyright exceptions, and is incoherent and uncertain. This Article proves that these postulations are baseless and stem exogenously from competing copyright industries and alliances to generate a dubiety vis- a-vis its legal status. This dubiety is devised to repel the proliferation of the fair use doctrine globally, while it remains intact and unimpinged domestically. This Article concludes that South Africa should base its legislative affairs solely on its own interests, impervious to the cynical perspectives of exogenous nations and alliances that could care less about its affluence or the welfare of its people
Principles of Prosecutor Lenience
No full textOnce the Darth Vader of academic writing, \u27 American prosecutors are making a comeback. In recent years, progressive prosecutors have leveraged prosecutors\u27 one true superpower-lenience-to reform the criminal justice system from the inside. There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: yes. But there is surely more to say. American criminal law covers a broad array of offenses with vast differences in punitiveness across jurisdictions and courts. And even harsh critics of the system\u27s severity tend to pivot when it comes to certain offenses, like crimes committed by police. Plus, some scenarios call for lenience but not necessarily prosecutor lenience. Prosecutors may be poorly positioned relative to police, judges, legislators, and governors for some exercises of lenience, and poorly suited by demeanor or experience to recognize the need for equitable discretion
Is Sunlight the Best Disinfectant? The Role of Regulation in Addressing Cybersecurity Concerns
Get PDFThe technological landscape in the United States is changing rapidly, and this transformation carries with it unprecedented challenges for administrators, companies, and investors alike. In particular, cybersecurity concerns are growing in light of the new opportunities for cyber malfeasance in this landscape—opportunities to pillage corporate databases and exploit the sensitive consumer information housed therein. For administrators, these new threats challenge prevailing regulatory frameworks and demand novel solutions. For companies, this landscape brings financial and reputational threats. For stakeholders, the cyber era presents the risk of investment losses and, in some cases, loss of personal data.
The Securities and Exchange Commission has responded to these changes by applying increased scrutiny to corporate cybersecurity disclosures, according to its guiding maxim that sunlight—that is, transparency—is the best disinfectant. Specifically, the Securities and Exchange Commission recently adopted new reporting requirements in an effort to keep in step with technological advances. However, applying old regulatory frameworks to a novel context may trigger unintended consequences, and thereby fall short of providing the Securities and Exchange Commission’s hoped-for benefits.
This Note critically analyzes one of the Securities and Exchange Commission’s new reporting requirements, Form 8-K’s Item 1.05 disclosure obligation, and seeks to determine whether sunlight is the best disinfectant in the cybersecurity context. Ultimately, this Note answers that question in the negative, instead advocating for the adoption of a more nuanced regulatory approach to navigate this uncharted territory
The Missing T in ESG
Get PDFEnvironmental, social, and governance (“ESG”) philosophy is the zeitgeist of our time. The rise of ESG investments came against the perceived failure of the government to adequately promote socially important goals. And so, corporations are now being praised and credited for stepping up where the government has fallen short. In this Essay, we contend that the standard narrative of ESG suffers from a major flaw. The reason for this discrepancy is taxes. The companies that are widely perceived as saviors of the ESG era are in fact the cause of some of the main deficiencies ESG seeks to redress. Astoundingly, public corporations—many of which have the highest ESG scores and are the largest recipients of ESG fund investments—are also the biggest tax avoiders. As this Essay shows, through the exploitation of legal loopholes and other grey areas, these companies increasingly deprive governments of the funding needed for the provision of public goods and the promotion of important societal policies, exacerbating administrative inefficiencies and deepening societal inequality—outcomes that are starkly at odds with ESG principles. To address this paradox, this Essay advocates incorporating tax-avoidance behavior into ESG ratings. It also argues that tax considerations should be accorded considerable weight not only by ESG rating agencies but also by institutional investors who shoulder part of the fault for the existing state of affairs. Implementation of this proposal would not only rectify incongruities within ESG investment but also provide the public with a more robust and accurate representation of a company’s genuine ESG standing
Anti-Transgender Constitutional Law
Get PDFOver the course of the last three decades, gender identity anti-discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens.
This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures date back much further, anti-transgender constitutional litigation was virtually nonexistent prior to 2016. Moreover, as late as 2018, the few victories in such cases were almost always either temporary or predicated on arguments with only limited application. In contrast, the most recent wave of anti-transgender constitutional litigation has seen increasing success in invalidating or limiting transgender equality measures, based on increasingly broad and potentially impactful rationales
