Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
The Salary Basis Test for Overtime and Minimum Wage Laws
Get PDFResponsible businesses do their best to stay in compliance with applicable overtime and minimum wage laws. The overtime and minimum wage law that generally covers most businesses in the United States and certain other locations is the federal Fair Labor Standards Act (\u27FLSA\u27). Depending on the particular state in which the business has employees, there may be state laws that provide more overtime wage and/or minimum wage protections for employees than the FLSA
The State of the Administrative State: The Regulatory Impact of the Trump Administration
Get PDFAbraham Lincoln once stated \u27The past is the cause of the present, and the present will be the cause of the future. All these are links in the endless chain stretching from the finite to the infinite.\u27 Surely, Lincoln was not referring to the regulatory history of the country with his observation, but it is apt when \u27the state of the administrative state\u27 is being assessed. To understand the Trump Administration\u27s overall stance toward the administrative state and its particular regulatory actions, both the recent past and the likely impacts on the immediate future need to be considered. Beyond the daily attention-grabbing headlines and bold anti-regulatory rhetoric of President Donald Trump, his administration is building momentum implementing a significant amount of actual regulatory change which will have lasting impacts. The impacts are not only in the particular policy areas of focus, such as health, environmental, banking, immigration, but also on the administrative state itself in terms of its capacity
The New Legal Landscape for Text Mining and Machine Learning
Get PDFNow that the dust has settled on the Authors Guild cases, this Article takes stock of the legal context for TDM research in the United States. This reappraisal begins in Part I with an assessment of exactly what the Authors Guild cases did and did not establish with respect to the fair use status of text mining. Those cases held unambiguously that reproducing copyrighted works as one step in the process of knowledge discovery through text data mining was transformative, and thus ultimately a fair use of those works. Part I explains why those rulings followed inexorably from copyright\u27s most fundamental principles. It also explains why the precedent set in the Authors Guild cases is likely to remain settled law in the United States.
Parts II and III address legal considerations for would-be text miners and their supporting institutions beyond the core holding of the Authors Guild cases. The Google Books and HathiTrust cases held, in effect, that copying expressive works for non-expressive purposes was justified as fair use. This addresses the most significant issue for the legality of text data mining research in the United States; however, the legality of non-expressive use is far from the only legal issue that researchers and their supporting institutions must confront if they are to realize the full potential of these technologies. Neither case addressed issues arising under contract law, laws prohibiting computer hacking, laws prohibiting the circumvention of technological protection measures (i.e., encryption and other digital locks), or cross-border copyright issues. Furthermore, although Google Books addressed the display of snippets of text as part of the communication of search results, and both Authors Guild cases addressed security issues that might bear upon the fair use claim, those holdings were a product of the particular factual circumstances of those cases and can only be extended cautiously to other contexts. Specifically, Part II surveys the legal status of TDM research in other important jurisdictions and explains some of the key differences between the law in the United States and the law in the European Union. It also explains how researchers can predict which law will apply in different situations.
Part III sets out a four-stage model of the lifecycle of text data mining research and uses this model to identify and explain the relevant legal issues beyond the core holdings of the Authors Guild cases in relation to TDM as a non-expressive use
A Negligence Approach to Section 14(e) Violations
Get PDFThe tender offer is a common method used by third parties to gain control of a company. Third parties will approach a company’s shareholders with the opportunity to sell their shares at a fixed price, the result being a change in ownership and control. A company’s top executives may be threatened by this change in ownership and want to recommend that the shareholders reject the offer. However, executives have a duty to act in accordance with the shareholders’ best interests. This may lead to a conflict between the shareholders’ interests and the executives’ interests. Section 14(e) of the Securities Exchange Act of 1934 is designed to ensure that tender offers are not alienated by these conflicts of interests faced by company executives, and to ensure that shareholders are given all accurate information material to the decision of whether to accept or reject the tender offer. This Comment analyzes and critiques how circuit courts have historically taken a scienter approach to Section 14(e) claims, largely due to the appealing comparison to Rule 10b-5 and its requirements
A Bankruptcy Litigation Framework for Series LLC Eligibility, Property of the Estate and Substantive Consolidation
Get PDFThe Series LLC is a new and idiosyncratic business entity that presents unique questions of law in the bankruptcy context. The Series LLC shields its members from liability and limits liability between various business endeavors. However, this multi-faceted liability protection creates several questions. These include: whether the Series LLC is eligible for bankruptcy, how to deal with the yet untested limited liability protection of different business endeavors, and whether the Series LLC\u27s multi-directional liability protections run contrary to federal bankruptcy policy. After responding to these concerns, the author proposes a bankruptcy litigation framework to address uncertainty surrounding Series LLC bankruptcy eligibility and create a level playing field
Student Loan Discharge: Reevaluating Undue Hardship Under a Presumption of Consistent Usage
Get PDFAn increasing number of Americans are suffering from financial distress caused by educational debt. Some of those individuals seek relief from that distress through the bankruptcy system, where they must establish that repaying their educational debt would impose an undue hardship in order to obtain a discharge of such debt. The author focuses on § 523(a)(8) of the U.S. Bankruptcy Code, which sets forth educational debt as an exception to bankruptcy discharge unless the repayment of student loan obligations imposes an \u27undue hardship.\u27 The author concludes that the primary inquiry into a debtor\u27s undue hardship claim must focus on the debtor\u27s current financial circumstances without undue regard to pre-bankruptcy conduct or assurance of persisting financial distress
Unbalanced Bargaining: Trump Entertainment Resorts Unite Here Local 54 and Expired Collective Bargaining Agreements Under § 1113
Get PDFThe author explores Trump Entertainment Resorts Unite Here Local 54, in which the Third Circuit considered, as an issue of first impression, whether a chapter 11 debtor-employer is able to reject the continuing terms and conditions of an expired collective bargaining agreement with its unionized employees under 11 U.S.C. § 1113. After analyzing this decision, the author argues that expired collective bargaining agreements are not subject to rejection or modification through § 1113. The author concludes by providing recommendations for judges, debtor-employers, and unions that attempt to balance the conflicting policy concerns surround bankruptcy and collective bargaining agreements
Rogue Committees or Rogue Judges: The Limits of a Bankruptcy Judge\u27s Authority to Disband Chapter 11 Committees
Get PDFWhen confronted with a misbehaving chapter 11 committee, bankruptcy courts have a limited list of remedies available to preserve equity. Universally, courts may address committee misbehavior through the disallowance of the committee\u27s attorneys\u27 fees, or through a modification of the committee\u27s membership. Where these remedies are inadequate, a split has emerged amongst the courts as to whether bankruptcy judges have the authority to use the \u27judicial hammer\u27 of disbanding a misbehaving committee. Looking to the history of chapter 11 committees and present-day examples of committee misbehavior, the author argues that when a committee is engaged in severe misfeasance or malfeasance, bankruptcy judges must have the power to disband the committee
Coerced Choice: School Vouchers and Students with Disabilities
Get PDFThe landscape of public education, once thought to be a core function of the state, is shifting towards privatization with the expansion of vouchers and tax credits that use public dollars to fund private school tuition. This Article focuses on the impacts of such programs on students with disabilities. It argues that voucher legislation, as applied to students with disabilities, violates two principles of constitutional law: the unconstitutional conditions doctrine and equal protection. The unconstitutional conditions doctrine limits government¿s authority to require individuals to forgo their rights in exchange for a gratuitous benefit. Vouchers cross those limits, coercing students into accepting a restriction of significant rights to escape failing public schools. Voucher programs, motivated by a desire to eliminate the costs and burdens associated with educating students with disabilities, stumble into an equal protection problem because they target students with disabilities for disadvantage without sufficient justification
Sharkfests and Databases: Crowdsourcing Plea Bargains
Get PDFIn this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. We describe, for example, what happens when lawyers bargain in public, benefitting from an audience that provides information about past practices and deals. And then we speculate about what might happen if that audience were instead a widely shared database that documents plea practices in the jurisdiction. We offer a few preliminary thoughts about the potential influence of such techniques, as we are not in a position to measure empirically the actual effects of crowdsourcing (either by audience or by database) on the rate or substance of pleas. Instead, we use anecdotal data to discuss how crowdsourcing techniques might affect party behavior and alter the balance of power among prosecutors, defenders, and judges when it comes to plea deals.
We begin in Part II with a glimpse of crowdsourcing patterns that currently exist: gatherings of defense attorneys and prosecutors who negotiate with each other in the same room at the same time. During our field research, we learned that the participants in one county called their weekly group meeting a “Sharkfest”—the label we use in this Essay for group negotiation sessions generally. The attorneys who attend these meetings discuss their cases within earshot of each other, offering suggestions to their colleagues and rebuttals to their adversaries, even in cases not assigned to them. In some of these settings, the judge is even present, commenting on the viability of the evidence or on the fairness of the prosecutor’s offer. In other settings, the parties know the bench’s preferences well and bargain in light of what they expect the judge to do. In short, some non-negotiators—both judges and other attorneys—can witness and shape the marketplace of plea deals in real time.
After describing the Sharkfest meetings that we learned about in different jurisdictions around the country, we turn in Part III to the central query of this paper: Could the effects of the group negotiation setting be reproduced, institutionalized, and furthered by the creation of a database about plea negotiations and case outcomes