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Kolender’s Paper Earns Ohio Environmental Writing Award
Get PDFWhen a Norfolk Southern train derailed in East Palestine, Ohio, spilling hundreds of thousands of gallons of toxic chemicals into the soil, water, and air, Zoe Kolender knew the cleanup efforts would be an arduous task. But she also knew something most people don’t—that environmental disasters like the Norfolk Southern derailment are treated differently depending on the areas in which they occur.
Kolender, a 3L at the Indiana University Maurer School of Law, had been studying the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) while developing a paper for Professor India Thusi’s seminar in Critical Race Theory. CERCLA provides a Federal “Superfund” to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment.
Her paper has now been recognized with the Environmental Law Student Writing Award, established by the Ohio Bar’s Environmental Law Section and Thompson Hine LLP to recognize current law students looking to advance the application and practice of environmental, energy, or resources law in Ohio
Pain Management, Disorders of Consciousness, and Tort Law: An Emergency Tort to Fix a Longstanding Injustice
Get PDFWe address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do to improve pain management for DoC patients. We propose a novel tort, grounded in strict liability, in order to improve the management of pain for individuals with DoC. We explore how current tort law falls short, and why a new cause of action is the best mechanism to effectuate this necessary shift in medical practice. We aim to muster tort law to quickly reform the medical standard of care, to greatly reduce the risk that individuals with DoC will linger without adequate pain management, so that this medical injustice can be eliminated
The Rise of Corporate Guidelines in the United States, 2005-2021: Theory and Evidence
Get PDFInstitutional investors are legally obliged to be faithful stewards of their portfolio companies. Yet, the conventional wisdom among commentators is that institutional investors have failed to perform this obligation because they are not incentivized to make adequate investments in corporate governance. This Article contends that this criticism is based on an incomplete analysis that misses a critical aspect of the operation of institutional investors. The critics focus exclusively on institutional investors’ efforts in actively engaging with the managements of their portfolio companies. They ignore, however, an important passive governance tool that institutional investors routinely use: corporate guidelines. Corporate guidelines are published by institutional investors to articulate their stance on governance issues and justify their voting decisions in annual meetings. Corporate guidelines have become increasingly popular not only among investors, but also among other market actors who interact with investors in shaping corporations’ governance regimes, such as the corporations’ managements and other shareholders, proxy advisory firms, and law firms. This Article demonstrates how corporate guidelines exert a profound effect on corporate governance. For institutional investors, corporate guidelines constitute an ideal tool for balancing the investors’ governance-related duties and the need for cost minimization. The promulgation and use of guidelines is less costly than active engagements, and unlike outsourcing voting decisions to proxy advisory firms, it is regarded as a valid way to fulfill the investors’ duties as corporate stewards. For the managements, aligning governance policies with corporate guidelines signals their commitment to sound governance practices, helping managements fend off challenges by activist shareholders. Activist shareholders, for their part, routinely cite corporate guidelines to support their proposals. This Article empirically substantiates these claims by analyzing the ways in which the guidelines were used by corporations and activist shareholders in proxy statements published by S&P 500 corporations. Initially, I focused on the years 2019–2021. After my initial findings, I expanded the scope to the years 2005 and 2010. Finally, to get a more comprehensive outlook, I expanded the scope of my research, continuing with a focus on the top 100 S&P 500 corporations during the years 2005–2021. This expansion examined the number of explicit references made by corporations and resulted in a significant spike in such references between 2015 and 2021. Furthermore, although the number of explicit references made by activist shareholders was not consistent throughout these years, such references were still made frequently. Importantly, my analysis notes that in certain years under assessment, almost 40% of the corporate proxy statements of the 100 largest companies included explicit references to corporate guidelines. This fact cannot be dismissed when examining institutional investors’ stewardship. Overall, I collected data from 3313 proxy statements published by S&P 500 corporations in 2005–2021. This Article therefore offers the first comprehensive theoretical and empirical examination of corporate guidelines and their effect on corporate impact
Managing Digital Resale in the Era of International Exhaustion
Get PDFThe Copyright Act of 1970 and Directive 2001/29/EC of the European Parliament both guarantee copyright holders’ exclusive rights of reproduction and distribution of their copyrighted material. Starting from a similar statutory basis, United States and European Union courts have diverged in their interpretation of these protections with respect to the first sale rule for digital goods. This paper analyzes the treatment of such “digital exhaustion” arguments under copyright law between the two legal systems from both the statutory interpretations employed and the policy rationales considered. The paper concludes by discussing the implications of adoption of digital exhaustion, within international law, for both copyright holders and consumers alike
Why States Should Conform to the New Corporate AMT
Get PDFIn 2022, as a key component of the Inflation Reduction Act, Congress enacted a new corporate alternative minimum tax (CAMT). With the possible exception of Alaska, states with corporate income taxes will not automatically conform to this change. But should they? Although states may not currently be seeking additional tax revenue, seasons change quickly when it comes to revenue needs. Further, there is increasing reason to believe that the corporate income tax is a progressive tax, and if so, a state might consider conforming to the CAMT as part of a revenue-neutral change to make its tax system more progressive. Accordingly, in this article we explain why states should and how they could conform to the CAMT. Essentially, we argue that states should take further steps to combat international profitshifting forms of tax avoidance (such as moving in the direction of worldwide combined reporting) and that conforming to the new CAMT is a good step in that direction
Environmental and Natural Resources Law Symposium: Assessing the August 2023 Amendments to the Waters of the United States Rule in the Wake of Sackett v. EPA
Get PDFIn 1982, the Army Corps of Engineers adopted the EPA definition of “waters of the United States.” This brought an end to a smoldering interagency conflict over the definitions under the Clean Water Act. This relationship was formalized with a 1989 Memorandum of Agreement between the EPA and the Corps; the Corps has largely ceded definitional decision making to the EPA, which develops guidance and supporting materials, while the Corps is responsible for most case-specific jurisdictional determinations under Section 404 of the Clean Water Act. In 2023, the agencies embarked on their latest round of rulemaking. In January, the Biden EPA and Corps published their 2023 Waters of the United States Rule; in May, the Supreme Court decided Sackett, throwing this rule into doubt; in August, the agencies attempted to restore clarity to “waters of the United States” with Amendments to the 2023 Rule. My comments will examine these August Amendments
Adapting Standards of Judicial Impartiality to Student Discipline in Higher Education: Pitfalls and Potential Learned from Title IX Adjudications
Get PDFCyber Plungers: Colonial Pipeline and the Case for an Omnibus Cybersecurity Legislation
Get PDFThe May 2021 ransomware attack on Colonial Pipeline was a wake-up call for a federal administration slow to realize the dangers that cybersecurity threats pose to our critical national infrastructure. The attack forced hundreds of thousands of Americans along the east coast to stand in endless lines for gas, spiking both prices and public fears. These stressors on our economy and supply chains triggered emergency proclamations in four states, including Georgia. That a single cyberattack could lead to a national emergency of this magnitude was seen by many as proof of even more crippling threats to come. Executive Director of the Cybersecurity and Infrastructure Security Agency (CISA), Brandon Wales, went on to describe the incident as a “galvanizing event for the country.” This Article challenges this characterization, suggesting instead that little has changed in terms of regulation, enforcement, or liability and that, as a result, another cyber incident targeting our critical infrastructure is, quite frankly, a matter of when and not if. The Article explores a set of kneejerk legal processes—litigatory, regulatory, and legislative—which were set in motion in the wake of the Colonial Pipeline incident. For each these processes the Article highlights points of failure in generating positive long-term effects aimed at increasing broader cybersecurity. Relying on insights from Daniel Solove and Woody Hartzog’s recent book Breached!, this Article treats the Colonial Pipeline incident as a microcosm through which to understand our broader regulatory deficits in critical infrastructure cybersecurity. Against this backdrop, the Article offers the first scholarly examination of a new and innovative blueprint developed by the Biden Administration to promote holistic regulations as part of a National Cybersecurity Strategy. The Article highlights both the promises and pitfalls of this Strategy on future regulation of critical infrastructures
Evaluating Copyright Protection in the Data-Driven Era: Centering on Motion Picture\u27s Past and Future
Get PDFSince the 1910s, Hollywood has measured audience preferences with rough industry-created methods. In the 1940s, scientific audience research led by George Gallup started to conduct film audience surveys with traditional statistical and psychological methods. However, the quantity, quality, and speed were limited. Things dramatically changed in the internet age. The prevalence of digital data increases the instantaneousness, convenience, width, and depth of collecting audience and content data. Advanced data and AI technologies have also allowed machines to provide filmmakers with ideas or even make human-like expressions. This brings new copyright challenges in the data-driven era.
Massive amounts of text and data are the premise of text and data mining (TDM), as well as the admission ticket to access machine learning technologies. Given the high and uncertain copyright violation risks in the data-driven creation process, whoever controls the copyrighted film materials can monopolize the data and AI technologies to create motion pictures in the data-driven era. Considering that copyright shall not be the gatekeeper to new technological uses that do not impair the original uses of copyrighted works in the existing markets, this study proposes to create a TDM and model training limitations or exceptions to copyrights and recommends the Singapore legislative model.
Motion pictures, as public entertainment media, have inherently limited creative choices. Identifying data-driven works’ human original expression components is also challenging. This study proposes establishing a voluntarily negotiated license institution backed up by a compulsory license to enable other filmmakers to reuse film materials in new motion pictures. The film material’s degree of human original authorship certified by film artists’ guilds shall be a crucial factor in deciding the compulsory license’s royalty rate and terms to encourage retaining human artists. This study argues that international and domestic policymakers should enjoy broad discretion to qualify data-driven work’s copyright protection because data-driven work is a new category of work. It would be too late to wait until ubiquitous data-driven works block human creative freedom and floods of data-driven work copyright litigations overwhelm the judicial systems