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Rural Health Care in the Age of Hospital Bankruptcies
Full text linkIn recent years, the United States has witnessed a surge in bankruptcy filings within the healthcare sector. Inflation, rising expenses, shifts in payment models, labor shortages, legislative uncertainty, and mounting pharmaceutical costs have impacted all healthcare organizations, casting a shadow over communities. This is particularly evident in rural America where hospital closures have shrunk access to healthcare services. This Comment delves into the challenges and interests at play when healthcare entities and nonprofit organizations navigate bankruptcy proceedings, paying particular attention to the challenges faced by health care business bankruptcy proceedings.
This Comment argues that the current bankruptcy framework requires adjustments to meet the pressing needs of contemporary nonprofit health care businesses. This Comment examines the critical role nonprofit healthcare bankruptcies play in safeguarding the health and well-being of communities, and explores the issues that have left debtors, creditors, the public, and courts frustrated.
The bankruptcy system must acknowledge public interests in health care and ensure the provision of essential healthcare services. By advocating for targeted modifications within the bankruptcy framework, this Comment promotes a more equitable and effective resolution for the complex issues surrounding healthcare bankruptcy proceedings
Class Action Waivers in Arbitration Agreements: The Twenty-First Century Arbitration Battleground and Implications for the E.U. Countries
Full text linkWithout doubt the U.S. Supreme Court in the twenty-first century has been obsessed with the problem of corporate attorneys’ inclusion of class action waivers in arbitration agreements. This article traces the emergence of the class action waiver issue, which developed in tandem with the plaintiffs’ embrace and proliferation of class action litigation at the end of the twentieth century. The discussion comments on plaintiffs’ initial attempts to request and secure class arbitration where the arbitration clauses were silent, culminating in Supreme Court’s opinion permitting arbitrators to determine this issue. With the Court opening the door to possible classwide arbitration, corporate lawyers regrouped to rethink the wording of their mandatory arbitration agreements, to specifically prohibit classwide arbitration. These corporate efforts and the successive redrafting of arbitration agreements prompted a series of class action waiver appeals to the Supreme Court, with the Court construing ever changing class action waiver formulations. Since 2010, the Court has decided eight class action appeals dealing with issues relating to class action waivers in arbitration agreements. The article analyzes the Court’s series of decisions relating to class action waiver provisions, focusing on the Court’s consistent repudiation of classwide arbitration as antithetical to the original concept of bilateral arbitration. The article observes that despite the Court’s clear rejection of almost all class action waiver provisions, plaintiffs’ attorneys regroup and repeatedly seek classwide arbitration by state legislative initiatives and construing arbitration agreements within the contours of the Court’s evolving class waiver jurisprudence. The article concludes with observations about class arbitration in other countries, and the implications of class action waivers for European Union countries that have recently implemented class action and collective redress procedures
Global Value Chains and Workers: Reconstructing an Epistemology for the Transnational Labor Question
Full text linkThis article examines transnational labor governance and contractualization in global value chains, arguing that framing the transnational labor question is essential to encapsulate workers’ needs for protection. At the same time, this question is fundamentally epistemological. Framing the question requires an epistemological reconstruction that moves beyond the dominant dichotomies inherent in evolving transnational private law – dichotomies that marginalize workers and obscure the role of employment contracts within transnational regulatory frameworks. The article points not only to the inadequacy of the transnational epistemological foundation, but also to the epistemic imbalance between the Global North and the Global South and the need to decolonize knowledge structures. Using the employment contract as a conceptual tool, this article identifies shortcomings in approaches to labor protection and explores the consequences of expanding party autonomy in the transnational legal environment. It argues that transnational contractualization in global value chains undermines labor protections and has significant implications for the protection of fundamental labor rights
Human Capital Disclosure & Corporate Governance: The New Evidence
Full text linkThis Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some areas and decreased in others. HCM-focused shareholder proposals have proliferated and now cover a range of heretofore unexplored topics. This dynamic new landscape raises important analytical and normative questions: Has the SEC’s disclosure intervention from 2020 been effective and, if not, what should a revised HCM disclosure framework look like? More broadly, does the increased visibility of labor in corporate filings indicate that its role and status within corporate governance, which had been static for decades, have now changed?
To answer these questions, the Article examines six complementary types of evidence selected through an original “mixed methods” research design—a methodological approach popular in the social and behavioral sciences but underutilized in corporate law. The new evidence includes: (1) a meta-analysis of large-scale quantitative studies examining the incidence and characteristics of HCM disclosure; (2) hand-collected data from the SEC review process for initial public offering (“IPO”) filings; (3) an original case study showing the existence of material disclosure gaps in regulatory filings; (4) evidence from HCM-related shareholder proposals; (5) evidence from recent labor market developments; and (6) a new line of Delaware fiduciary duty cases focused on board oversight of “mission-critical” matters. While these six lines of inquiry in isolation offer only fragmented depictions, combining them through the mixed methods approach generates a more nuanced and comprehensive picture that can inform both policy and academic discourse.
The principal implications are twofold. With respect to securities law, the analysis highlights the need for a revised HCM disclosure framework that: (1) elicits more detailed, standardized, and, where appropriate, quantitative information; (2) covers both traditional employees and the so-called shadow workforce comprised of contingent workers; and (3) pays much-needed attention to the complementarities and substitutability between human capital and AI-enabled technology. With respect to corporate governance writ large, the analysis underscores the enduring precarity of labor’s status within the firm, which will likely be deepened by the AI revolution
Law in Books Versus Law in Action in the Landmark Shenzhen, China, Personal Bankruptcy Regime
Full text linkThe first personal bankruptcy regime in Mainland China celebrated its second anniversary on March 1, 2023. An empirical assessment of the law in action during these first two years reveals some troubling deviations from the early promises of the new law on the books. In the first year, a handful of judges were charged with an arduous in-person review process for over 1,000 applicants, and they accepted only twenty-five for case initiation. In the second year, initial case review was delegated to an administrative body—an important efficiency enhancement that tripled the number of opened cases. Nonetheless, most debtors continue to be dissuaded from applying at all, and hundreds of applications have been rejected, in part on the non-statutory grounds that the court is admitting only business-related cases. Moreover, the default gateway of liquidation-and-discharge has been successfully used only once, secretly relegated to “last resort” status. Debtors are effectively limited to proposing that creditors accept a payment plan offering full repayment of principal within five years, and creditors have rejected many such plans. While most admitted restructuring cases have led to confirmed plans, many of these “successes” are built on very shaky foundations that portend likely struggle and repeat default ahead. The new system, thus, seems to be operating in quite a skewed fashion: admitting only a very small fraction of applicants and offering relief on narrow and demanding grounds. This is a disappointing abandonment of the textual promise of broad, standardized relief consistent with international best practices. As national authorities in China (and elsewhere) consider adopting a country-wide personal bankruptcy law, Shenzhen’s experience illustrates the challenges of striking the right balance between relief and responsibility in personal insolvency regulation
Climate, Clarity, Controversy: A Constitutional, Statutory, and Policy Analysis of the SEC’s Proposed Climate Disclosure Rules
Full text linkThe burgeoning ESG movement has heightened investors’ interest in how companies steward the environment in which they operate; manage their human capital; and implement strategies to effectively manage and fulfill the desires of stakeholders. As a result, the SEC has sought to implement a mandatory climate-related disclosure regime to provide investors with public companies’ climate-related data to assist in the investment decision-making process. The proposed climate-related disclosure rule has faced criticism from businesses, politicians, and legal scholars on constitutional, statutory, and policy grounds. This Comment concludes that based on the statutory language of the Securities Act of 1933 and Securities Exchange Act of 1934, the SEC has both the constitutional and statutory authority to establish and promulgate climate-related disclosures. The implementation and enforcement of the climate-related disclosure rule not only ensures that investors\u27 demands are satisfied, but also directly aligns with the SEC\u27s mission of “protecting investors, maintaining fair, orderly, and efficient markets, and facilitating capital formation.