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The Corporate Governance of Public Utilities
Get PDFRate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high-profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal-ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they have emerged as powerful opponents of state and federal climate action.
This Article describes the unique corporate governance challenges public utilities face and argues that these governance challenges contribute to the pervasive inefficiencies and the frequency of corporate misconduct that characterize utility industries. American corporate law provides special protections to shareholders, such as the right to elect corporate boards and the requirement that directors and managers owe fiduciary duties to shareholders. The economic justification for these protections is that shareholders are the residual claimants of corporations: because they receive any value a corporation generates beyond what it owes to its fixed claimants, they have the appropriate incentives to pursue value-enhancing investments.
But the theoretical premise that underlies the American system of corporate governance does not apply to public utilities. Rate regulation limits the value shareholders receive when a firm innovates or reduces costs. It therefore converts shareholders into fixed claimants with the same incentives creditors have in non-utility industries. Because ratepayers, not shareholders, receive the residual value the firm generates beyond what it owes to its fixed claimants, standard corporate law theory suggests that public utilities should be run to advance ratepayer and not shareholder interests. The implication is that managers and directors of public utilities should owe fiduciary duties to their ratepayers, that ratepayers should be represented on the corporate boards of public utilities, and that managers of public utilities should receive less deference on business decisions than they do in other industries. As we discuss, however, these reforms are difficult, and perhaps impossible, to implement effectively. That, in turn, highlights the need for strong regulatory oversight and offers additional reasons to be skeptical of the utility model
New FirstGen student organization uniting path-breaking students
Get PDFBarbara Bernal Monnroy arrived in the United States from her native Venezuela at the age of 16, with no practical English language knowledge or skills. “Generation Zero,” as she puts it. Though she was a year behind because of the language barrier, Monnroy worked tirelessly to succeed, eventually graduating from a Florida high school with strong enough credentials to earn a place at Davis & Elkins College. She succeeded there, too, in rural West Virginia, earning valedictorian honors and serving as the college’s graduation speaker
Securities Litigation, Enforcement, and Compliance: Cases and Materials (Fifth Edition)
No full textThe Fifth Edition continues the casebook’s traditional focus on Exchange Act Section 10(b)/Rule 10b-5 securities fraud litigation initiated by private plaintiffs, SEC enforcement officials, and DOJ criminal prosecutors, and it incorporates important developments since 2017 including the U.S. Supreme Court’s decisions in Lorenzo v. SEC (primary liability for securities fraud); Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System (fraud-on-the market and class certification); and Liu v. SEC (court-ordered disgorgement as an equitable remedy in SEC enforcement actions). But in view of the recent emergence of securities compliance as its own distinct and important area of study, the casebook has also expanded its focus to encompass the prevention, detection, investigation, and remediation stages of compliance in the securities industry, with topics including the role of gatekeepers, monetary awards and statutory protections for whistleblowing, corporate internal investigations, deferred prosecution agreements, and requirements under the Foreign Corrupt Practices Act and federal anti-money laundering statutes.https://www.repository.law.indiana.edu/facbooks/1326/thumbnail.jp
The Prohibition on Extraterritorial Enforcement Jurisdiction in the Datasphere
No full textBy engaging with ongoing discussions surrounding the scope of cross-border regulation, this expansive Research Handbook provides the reader with key insights into the concept of extraterritoriality. It offers an incisive overview and analysis of one of the most critical components of global governance.Authored by central voices in the global extraterritoriality debate, the Research Handbook on Extraterritoriality in International Law offers legal, interdisciplinary, and regional perspectives on this evolving field. It covers a variety of issues, such as the economics of extraterritorial crime, judicial extraterritoriality, and extraterritorial human rights obligations.This comprehensive Research Handbook will be a valuable research resource for scholars and students of international law and politics, as well as international and domestically oriented legal practitioners who seek to grasp the difficult legal questions surrounding extraterritoriality.
Includes the chapter, The Prohibition on Extraterritorial Enforcement Jurisdiction in the Datasphere by Maurer Professor Asaf Lubin.https://www.repository.law.indiana.edu/facbooks/1327/thumbnail.jp
Fair Use Failing the First Amendment? How the Parody and Satire Dichotomy May be Stunting Political Discourse
Get PDFThe First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First Amendment jurisprudence and that the First Amendment provides strong protection for dissident voices pertaining to public officials and figures so long as they are not overtly “intrusive.”5 While First Amendment almost whole-heartedly urges for freedom of robust debate and discord over public concern, copyright creates a property interest in speech and expression, particularly as it pertains to the expressive works of public figures. As a result, “copyright laws grant a copyright owner the right to suppress or abridge another person’s freedom of speech when that person seeks to express copyrighted material.”6 This Note will evaluate how the stark differences of approaches between the doctrines may be most at odds in the expressions of parody and satire as they are now regulated by copyright law’s First Amendment “fair use” “safety valve” (which results in overlooking entirely the First Amendment issues) and suggest that the Supreme Court overrule, or Congress pass an amendment to, the common law parody-satire distinction to carve out an exception for parody and satire to be evaluated at a First Amendment standard of scrutiny.
This analysis will evaluate first, how satire is a utilitarian form of public and political expression recognized by the First Amendment; second, how the First Amendment defense operates in protecting comedic, humorous, and satiric forms of public comment; and, finally, how the First Amendment protection has been increasingly eclipsed by the intellectual property doctrines of copyright (and trademark) in litigation pertaining to such satirical works. Then, I will illustrate First Amendment protection analysis for satirical works through a survey of cases where the intellectual property doctrines certainly take legal priority over serious First Amendment concerns, and contrast those with cases that allow infringement or some form of copying that has little to no First Amendment value
Interfaces in Plant Intellectual Property Second edition
No full textWhile intellectual property rights are mostly studied in isolation, in practice the legal categories created to protect these rights provide only partial legal coverage of the broader context in which such rights are created, used, and enforced. Consequently, often multiple IP rights overlap with respect to the same underlying subject matter.This book enables readers to consider how these overlapping rights work together, facilitating a deeper understanding of how and when they may be encountered in practice. Each chapter addresses a discrete pair of IP rights and uses a hypothetical scenario to analyse particular conceptual and practical issues, giving practitioners a comprehensive understanding of the overlap.While the focus of these IP rights is on UK, US and European law, the book also contains comparison tables of overlapping IP rights in other countries around the world. These tables complement the chapters, offering a detailed overview as to how these overlaps apply in different legal jurisdictions, as well as how they differ.
Includes the chapter, Interfaces in Plant Intellectual Property by Maurer Professor Mark D. Janis.https://www.repository.law.indiana.edu/facbooks/1320/thumbnail.jp
Remembering the Hon. Viola J. Taliaferro
Get PDFJudge Viola J. Taliaferro, a pathbreaking jurist in Monroe County and renowned advocate for its children, passed away Monday, June 12 in Bloomington.
A 1977 graduate of the Indiana University Maurer School of Law, Taliaferro entered the legal profession later in life, but wasted no time making an immediate—and lasting—impact on her local community.
Viola Taliaferro earned a Master of Liberal Arts degree from Johns Hopkins University in 1969. By then she and George had four children, and the family returned to Bloomington—where George had played for the Indiana University Hoosier football team—in 1972.
Three years later she enrolled at the Law School. She went directly into private practice after earning her JD, focusing on family and criminal law. Taliaferro was named a Monroe Circuit Court Magistrate in 1989, and was appointed judge of the Monroe Circuit Court VII in 1995—a position she held until she retired in 2004
Time Off Work For Menstruation: A Good Idea?
Get PDFIn February 2023, Spain became the first European country to guarantee “menstrual leave” for workers, joining several countries, mostly in East Asia, that have long done so. It has also become increasingly common for companies to offer paid time off to menstruators as a discretionary benefit. Reports on these developments are almost always accompanied by criticism from self-identified feminists voicing concern that the policies will spur discrimination against women or reinforce stereotypes about menstruators as incapable workers. This echoes earlier arguments over maternity leave. In their groundbreaking book, Menstruation Matters, Bridget Crawford and Emily Waldman expose myriad ways in which workplaces can be inhospitable to menstruators, and they offer an extremely helpful introduction to the debate over menstrual leave. This Essay builds on their analysis to take a deeper dive into the issue. It argues that there are alternatives to leave that could address many of these problems without triggering the same concerns of backlash. These include effective enforcement of existing laws and regulations relating to restroom access, break time, and workplace accommodations for various health needs. Additionally, employers can provide free menstrual products in workplace restrooms to allows workers to handle periods with dignity—even when they start unexpectedly—and help destigmatize menstruation. Even if these practices become routine, some menstruators might need to miss work when experiencing severe menstrual symptoms. The Essay suggests that rather than seeking menstrual-specific leave, advocates might join forces with the burgeoning campaign to guarantee adequate paid sick days for all workers. Menstruation is not an illness, but most such laws are written broadly enough to meet menstruators’ needs. This universal approach, designed to support a broader swath of workers, would probably be easier to pass politically, and it would be far less likely to result in workplace discrimination against menstruators
The Constitution Commandeth: Thou Shalt Not Protect the Same Subject Matter Under Design Patent and Trade Dress Laws
Get PDFFor many years and still currently, it has been assumed—and even expressly asserted—that it is perfectly permissible to “stack” various legal theories (concurrently or consecutively) to protect nonfunctional “designs” for products. This is despite infrequent but cogent arguments that the available theories, notably design patents and product design trade dress—both of which are based upon federal statutes—are not Constitutionally compatible due to at least the concept of Superfluity. The authors of this article carefully examine the origin, nature, and meaning of these two types of IP protections in the context of their two Constitutional bases—the Patent/Copyright Clause and the Commerce Clause—and conclude that, indeed, “stacked” protections are not Constitutionally permissible; the authors then recommend a workable solution which they dub, the “Kewanee Kompromise.