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Chancery Court Employs Revlon Analysis in Assessing Whether Corporate Sale Process Was Reasonable
Get PDFAnalysis of Environmental Law Scholarship 2019-2020
Get PDFThe goal of this Comment is to highlight the results of the ELPAR article selection process and to report on the environmental legal scholarship for the 2019-2020 academic year, including the number of environmental law articles published in general law reviews versus environmental law journals, and the topics covered in the articles. We also present the Top 20 articles that met ELPAR\u27s criteria of persuasiveness, impact, feasibility, and creativity, from which four articles were selected to re-publish in condensed form with commentaries from leading practitioners and policymakers. Two additional articles received an honorable mention. Thus, this Comment provides an empirical snapshot of the environmental legal literature during the past academic year and information on the top articles chosen by ELPAR
Re-Emphasizing African Bioethics in Light of Potential CRISPR-Based Treatment for HIV and Sickle Cell Disease
Get PDFRecent genetic studies indicate that CRISPR-Cas9, a biological gene-editing mechanism derived from bacteria, may be capable of curing HIV and Sickle Cell Disease. Clinical research for HIV and SCD is prevalent in African nations because of the high incidence of those diseases in all forms. Because past research studies in Africa demonstrate how Western companies can abuse lax ethics regulations in developing African nations, ethics systems must prevent this new, potentially far-reaching CRISPR technology from being prematurely and unethically used on African research participants. In updating current international bioethics frameworks, drafters should pay particular attention to its application in African nations. International bioethics agreements cannot fully protect African research participants, however, until developing countries accord those agreements the power of law. African nations should accelerate the development of unitary systems of ethics laws and education programs unique to the cultural underpinnings of each nation. Only with both the reappraisal of international frameworks to better incorporate traditional African ideals and the development of coherent regional bioethics systems will African research participants be adequately protected
The Pandemic Legacy: Accounting for Working-from-Home Emissions
Get PDFThe COVID-19 pandemic has resulted in millions of employees working from home, a development that is challenging public and private standards for reporting and reducing greenhouse gas emissions. Under these standards, corporations disclose the emissions from large buildings and the power plants that supply them with energy, but most do not report other types of emissions. When employees shift from working at an office to working at home, the corporate emissions appear to have decreased even though they have simply shifted beyond the boundary of the reporting requirement. This move creates greenwashing risks--the ability to claim that corporate greenhouse gas emissions have declined when they have just shifted to non-reporting sources-- and undermines incentives for corporations to induce employees to reduce emissions. Although the working-from-home transition has been underway for some time, it accelerated dramatically during the COVID-19 pandemic, and it may lead to permanent shifts in the workplace for millions of employees. Using an efficiency and justice lens, this Article examines the standards regarding working-from-home emissions and concludes that undercounting could occur, could unfairly burden workers, and could increase net emissions. The Article proposes changes in emissions reporting standards to address these concerns, including amending or interpreting the standards to require employers to account for employee working-from-home-related emissions in corporate emissions reports. The Article focuses on greenhouse gas emissions, but it has implications for other types of emissions, worker health and safety, taxation, and other fields that have been affected by the working-from-home transition
Team Production Revisited
Get PDFThis Article reconsiders Margaret Blair and Lynn Stout’s team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by a description of principal-agent relationships among shareholders and managers. This Article shows that the model retains descriptive robustness, despite the substantial accretion of shareholder power during the two decades since its appearance. The Article also shows that the model taught three groundbreaking lessons to corporate legal theory. First, nothing binds microeconomic analysis together with a theory of the firm rooted in shareholder primacy. Second, microeconomics, with its emphases on efficiency and maximization, can be deployed in the service of an allocatively sensitive description of corporate governance, providing a more capacious methodological tent than anyone in corporate law understood prior to Blair and Stout’s intervention. Third, it is not only possible but arguably necessary to take corporate law seriously when articulating a microeconomic theory of corporate production. To the extent an economic model’s description of the appropriate legal framework differs materially from the inherited legal framework, there is a possible, even a probable, infirmity in the model
Federal Corporate Law and the Business of Banking
Get PDFThe only profit-seeking business enterprises chartered by a federal government agency are banks. Yet there is barely any scholarship justifying this exception to state primacy in U.S. corporate law.
This Article addresses that gap. It reinterprets the National Bank Act (NBA) the organic statute governing national banks, the heavyweights of the financial sec- tor-as a corporation law and recovers the reasons why Congress wrote this law: not to catalyze private wealth creation or to regulate an existing industry, but to solve an economic governance problem. National banks are federal instrumentalities charged with augmenting the money supply-- a delegated sovereign privilege. Congress recruited private shareholders and managers to run these instrumentalities as a check on monetary overissue and to prevent politicized asset allocation by government officials-a form of premodern agency independence.
Viewing the NBA as a corporation law yields surprising dividends. First, it exposes a major flaw at the heart of U.S. banking jurisprudence. In recent decades, the Supreme Court and the Office of the Comptroller of the Currency (OCC), the chartering authority for national banks, have interpreted national banks\u27 corporate powers expansively, allowing them to enter a vast range of new business lines. But the corporate powers provision of the NBA is not a regulatory statute to which courts should apply Chevron deference, nor is it part of the OCC\u27s enabling act. It is part of the corporate charters of national banks. Accordingly, the opposite, settled rule of construction applies: ambiguity is construed strictly against the corporation. Second, interpreting the NBA as a corporation law reveals that the OCC\u27s current campaign to unhitch national bank charters from the deposit business lacks a statutory basis and threatens an unprecedented colonization of U.S. enterprise law by a federal government agency that is ill-suited to this mission and was never congressionally tasked with it
BROWN, Massive Resistance, and the Lawyer\u27s View: A Nashville Story
Get PDFEvery grassroots story complicates what we already know, and the history of Cecil Sims and his world48 stands out in at least two important ways. First, Sims\u27s work on issues relating to segregated education predates Brown. In the late 1940s, as Southern states responded to Supreme Court decisions desegregating graduate education, Sims assumed a central role in developing nominally race-neutral proposals that involved a series of complex transactions and legal forms. Just as the Civil Rights Movement began years before Brown and the Montgomery Bus Boycott, Sims is emblematic of the segregated South\u27s long history of resistance to civil rights. Scholars have discussed how massive resistance moderated in the mid-1960s and assumed more race-neutral forms. But that transformation was not a simple story of evolution and reactive change, necessitated by passage of the Civil Rights Act of 1964 or the exigencies of litigation and its chastening effect after years of countering civil rights lawsuits, challenging statutes, and losing in court.\u27 Sims\u27s story suggests that the arguments that massive resistance mellowed into were there all along-lost in the glare, perhaps, but taking root in the shadows
Is Labor Arbitration Lawless?
Get PDFLabor arbitration is often viewed as a more peaceful, productive, and private alternative to workplace strikes and violence. On the other hand, statutory laws are intended to protect all workers, and contract law default rules and rules of interpretation often serve a protective role that could be harmful if ignored in this private dispute resolution setting. To provide more insight into how arbitrators decide labor disputes, we utilize our newly crafted data set of hundreds of labor arbitration awards spanning a decade. Unlike prior data sets, our data are more inclusive: they include both published and unpublished awards as well as cases decided by non-AAA arbitrators and industrial boards, enabling a fuller-and thus potentially more credible-study of differing types of labor arbitration. We find-counter to previous research-that the vast majority of awards do not cite to external authority such as statutes, administrative authorities, or case law, or to secondary sources. Yet, our awards provide little evidence that arbitrators explicitly declined to address a statutory issue raised by one of the parties. These findings indicate there is perhaps much more room for labor arbitrators to refer to external authority in their decision- making. Our results also indicate that reference to governing law depends on factors like attorney representation and service provider guidance. If so, our study has potential implications for the structure and desirability of arbitration for labor disputes as well as for other types of arbitration, including employment, consumer, and securities arbitrations. The inherent tension between peaceful, quick, private dispute resolution and the risks of potential lawlessness might be greater for the resolution of statutory claims, and if so, our study has implications for the desirability and structure of the arbitration of such claims. For example, examination of external authority and written reasoning could be required for the binding resolution of statutory claims in labor arbitration. Moreover, our more inclusive study indicates that there remains an inherent tension between peaceful, quick dispute resolution and the risks of potential lawlessness. More broad studies are warranted
Praxis and Paradox: Inside the Black Box of Eviction Court
Get PDFIn the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.
For many tenants facing eviction, elements of the “typical” formal legal process are absent, resulting in an experience that only loosely resembles what is taught in law school. This Article is based on a first-of-its-kind interdisciplinary, multi-year, mixed-methods study of suburban and rural dispossessory (eviction) courts in Georgia that aims to contribute to the knowledge gap described above. Through detailed quantitative analysis of case files and qualitative data gleaned from court observation and stakeholder interviews, and its unique focus on courts outside of a major city, it provides a clearer picture of how eviction court in such jurisdictions operates in practice and what resulting variations in process mean for case outcomes.
Ultimately, this Article demonstrates that while one set of laws may govern throughout the state, the process for applying and enforcing those laws is highly localized, dependent on the nature of place and the attitudes of the stakeholders involved. While smaller, lower-volume courts have fewer caseload pressures and appear to prioritize procedural justice, the process they conduct functions less like a traditional legal proceeding and more as a vehicle for rent collection. Paradoxically, elements typically associated with fair process—like the opportunity to respond to legal claims through filing an answer or the scheduling of a hearing on the merits—do not always manifest in substantively improved outcomes for tenants, given the structure of the underlying law. The Article concludes by reflecting on what these observations suggest about the limitations and effectiveness of different forms of legal assistance and how court processes, regardless of their locale and the people who operate within them, can maximize access to justice
Quilombo Land Rights, Brazilian Constitutionalism, and Racial Capitalism
Get PDFThe 1988 Brazilian Constitution, the first in a wave of new democratic and multicultural constitutions in Latin America, contains a transitory provision guaranteeing collective land rights to quilombo communities. These communities are composed of quilombolas, primarily descendants of formerly enslaved Africans, many of whom had escaped slavery. A 2003 executive decree to implement the land title provision became the subject of a constitutional challenge lasting over fifteen years. When the Brazilian constitutional court eventually upheld the decree in 2018, it relied heavily on the work of US political theorist Nancy Fraser to justify quilombo land title as both recognition and redistribution. Although in many ways progressive, the court\u27s decision offers a vision that is less transformative than its reliance on Fraser might imply. Using theories of racial capitalism and drawing from the thought and activism of quilombolas and other Afro-Brazilians, particularly since the mid-1980s, this Article argues for a richer understanding of three concepts that circulate through the court\u27s decision: resistance, expropriation, and heritage