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International Advisory Proceedings on Climate Change
Get PDFSeveral island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, several island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. In the hope of fostering more action to combat climate change, these states are asking international courts to clarify the obligations of states to cut greenhouse gas emissions and pay reparations for harm already caused.
This article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and engages critically with the main substantive and procedural aspects of potential advisory proceedings. This article demonstrates that, contrary to the prevailing view, these well-intended initiatives are almost certain to fall short of their goals and may even be counterproductive.
The likely failure of advisory proceedings on climate change results from several factors, including jurisdictional challenges and questions of judicial propriety. A court tasked with adjudicating such an advisory proceeding would find it difficult to determine the law applicable to key aspects of the questions presented, including modalities of burden-sharing in global climate change mitigation efforts. And even if a court were to offer a meaningful advisory opinion, it is highly uncertain whether powerful states would comply. These factors raise the risk that the issuance of an advisory opinion would further erode the credibility of international institutions, undermining the foundations of future cooperation combating climate change
The Syntax of Sports Class 5: Rhetorical Repetition
Get PDFHere are some of the words that the people who have attended Patrick Barry\u27s classes and workshops have used to describe his unique, multidisciplinary approach to teaching writing:
Fantastic Phenomenal Very engaging and informative: Incredibly useful Full of practical lessons for both my career and life generally
This fifth book in his Syntax of Sports series gives you a chance to experience his creative (and capacious) mind for yourself. Whether you\u27ve already read the previous four books in the series or are trying one out for the very first time, you\u27re in for quite the educational treat.https://repository.law.umich.edu/books/1124/thumbnail.jp
Front Matter
Get PDFFront Matter for Volume 12, Issue 1 of Michigan Business & Entrepreneurial Law Revie
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Get PDFWhat is sex discrimination? Or, more generally, what is discrimination?
This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories
Texas Two-Stepping Out of Bankruptcy
Get PDFJohnson & Johnson has a problem. For decades, it sold talc baby powder, a product that made Johnson & Johnson a household name and earned the business billions. But as those babies grew up, they started getting cancer. And then they began suing. Last June, twenty-two plaintiffs cemented a $2.12 billion judgment against Johnson & Johnson for cancer caused by its baby powder. Another 38,000 cases (and counting) remain in progress, each with the potential for a similar verdict.
To handle these mass tort liabilities, Johnson & Johnson has followed the lead of many businesses and turned to the bankruptcy courts. But it has done so with a twist. Unlike the businesses that pioneered using bankruptcy for mass torts, Johnson & Johnson is not filing for bankruptcy. Instead, it is dividing itself using an obscure Texas law, moving its assets into one business and its talc liabilities into another, and having the liability-laden business file for bankruptcy. This maneuver, known as the “Texas Two-Step,” threatens the tort recovery of tens of thousands of talc claimants.
The Texas Two-Step is the latest addition to a panoply of aggressive techniques debtors have developed to gain the upper hand against creditors. Other scholars, for example, have identified the use of coercive restructuring support agreements and “deathtraps,” third-party releases, and less-than-impartial bankruptcy directors to disadvantage creditors. The use of such techniques has been widely criticized as “bankruptcy hardball,” “the breakdown of chapter 11,” or simply “lawlessness.” It is now time to add the two-step to that catalog and to consider how that aggressive tactic might be counteracted.
The balance of this Essay does just that. Part I begins with an explanation of mass torts in bankruptcy and how the Texas Two-Step offers debtors something new. Part II then discusses fraudulent transfer law, the main avenue commentators have considered for tort claimants responding to the Texas Two-Step, and the shortcomings of that avenue. Next, in Part III, this Essay suggests a role for good faith challenges, which tort claimants may bring at the beginning of a bankruptcy and may have resolved far more quickly, enabling claimants to counteract the efficacy of the Texas Two-Step. Finally, the Essay concludes with some reflections on what the two-step means for the longstanding debate on bankruptcy forum shopping and on what the two-step adds to more recent discussions of the ongoing role of common law in bankruptcy’s statutory system
Love Hertz: Corporate Groups and Insolvency Forum Selection
Get PDFThe Hertz bankruptcy got a lot of attention, including for its bizarre equity trading. A less heralded but more significant legal aspect of that insolvency, however, was its complex interaction of cross-border insolvency proceedings.
This article discusses the “centripetal” and “centrifugal” forces in the Hertz case that counselled a U.S.-based centralized solution for an international enterprise comprising over 10,000 branches centripetally but also accommodated centrifugal European resistance to subject directors to the consequences of filing their entities in a foreign jurisdiction. This not uncommon constellation of incentives required not a COMI shift but what this article terms a jurisdiction shift of the primary Eurosub’s debt from the Netherlands (where the new scheme-like WHOA law was not yet in force), to the United Kingdom, so that the British scheme mechanism could be deployed to deal with the relevant Eurodebt outside chapter 11. This jurisdiction shift was effected via a consent solicitation that (i) added a U.K. sub, evocatively named Hertz UK Receivables Limited, as a co-issuer of the Dutch sub debt and (ii) changed applicable law of that bond issuance to English law, thereby opening the doors to a scheme’s prerequisite “sufficient connection.” Cross-affiliate guarantees, however, stymied global reach of the scheme and thus required, with no shortage of irony, a U.S. chapter 15 filing alongside the primary U.S. chapter 11 case to deal with the Eurobonds, resulting in what this article deems quasi-parallel proceedings—cross-border parallel proceedings not of the same debtor but of affiliated debtors within a corporate group.
This complex web of ping-ponging proceedings could have been greatly simplified by the application of the new UNCITRAL Model Law on Enterprise Group Insolvency (Groups Law), which comprises both planning and execution provisions to facilitate cross-border cooperation and enable jurisdictional hierarchy. In addition to confronting the theoretical and doctrinal challenges of the Hertz proceedings, this Article test drives (sorry) the Groups Law to see how it could have eased financial distress resolution of an unruly but increasingly common form of international group enterprise: that replete with trans-oceanic inter-affiliate guarantees
Trade Rules of State Enterprises: a Lawmaking Perspective
Get PDFState Enterprises are important actors in global trade, yet their regulation is a highly contentious issue that presently troubles the WTO and U.S.-China trade talks. This article proposes a typological framework of the multinational, regional, and bilateral trade rules concerning state enterprises. It compares their similarities and divergences from a lawmaking perspective, analyzing how lawmakers mix and match legal elements of ownership, control, purpose, authorization, function, activity, and industry of state enterprises with diverse policy ends. It reveals that some elements regulate behaviors while others pay more regulatory attention to the firm’s identity. These action-oriented and actor-focused approaches provide different lawmaking options. This typological study summarizes the existing doctrinal analysis of a particular provision under the same framework. It also provides a list of available lawmaking elements for regulators to pin down their policy differences towards state enterprises in international trade, enabling future lawmaking amidst the current geopolitical struggles on these entities
Meme Corporate Governance
Get PDFCan retail investors revolutionize corporate governance and make public companies more responsive to social concerns? The U.S. stock market offered an unusual experiment to test the impact of retail investors in 2021, when there was a dramatic influx of retail investors into the shareholder base of companies such as GameStop and AMC. The meme surge phenomenon elicited a variety of reactions from scholars and practitioners. While some worried that affected companies’ share prices were becoming disjointed from their financial fundamentals, others predicted that retail shareholders will reduce the power of large institutional investors and democratize corporate governance. This Article presents the first empirical analysis of the impact of retail investors on the governance of companies affected by the “meme stock surge.” The Article presents three principal findings. First, we show how the “meme stock” frenzy was affected by the introduction of the commission-free trading platform, such as Robinhood, in 2019. We show that the meme stock companies experienced higher abnormal stock returns when commission-free trading was widely introduced, and saw elevated trading volumes afterward. Second, we examine how the influx of retail shareholders has directly affected the governance outcomes at the meme stock companies. Notwithstanding the promise of a more active retail shareholder base, we show that meme stock companies have experienced a significant decrease in participation by their shareholders with respect to voting. Shareholder proposals under Rule 14a-8 have also been extremely limited, with most meme firms seeing no proposals brought after the rapid increase in retail ownership. Third, we examine whether the increase in retail shareholder base had any indirect effect on corporate governance and performance. While board gender diversity at these firms is broadly unchanged, their ESG scores have gotten worse subsequent to the meme surge. Examining meme firms’ use of corporate funds, we find decreases in research and development and capital expenditures after the meme surge. Collectively, our findings suggest that the influx of retail shareholders at these companies have not translated into more “democratic” governance regimes or reduced agency costs, even at firms the scholarly and popular commentary had highlighted as the cynosure of the retail investor storm
A System Out of Balance: A Critical Analysis of Philosophical Justifications for Copyright Law Through the \u3cem\u3eLenz\u3c/em\u3e of Users\u27 Rights
Get PDFUltimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further disenfranchised by the law. It will argue term limit extensions, increased protectionist treatment of secondary works online, and the functional lack of access to proper licensing mechanisms have rendered users’ rights impotent. Finally, in conclusion, this Article will offer a solution to the apparent imbalance of power in the form of replacing property-based derivative rights with liability rules. The conclusion, in many ways, merits its own paper and is meant as merely a suggestion of direction rather than a formulated solution
Answering the Call for Telephone Consumer Protection Act Reform: Effectuating Congressional Intent Within 47 U.S.C. § 227(B)(1)(A)
Get PDFThis Note analyzes the current state of the civil law surrounding the Telephone Consumer Protection Act (TCPA) and highlights a glaring flaw within the current practice of assigning liability to telephonic solicitors utilizing an automatic telephone dialing system (autodialer): solicitors can be subjected to liability even though their actions are not what Congress intended to prevent. Congress enacted the TCPA in response to unique consumer privacy and public safety concerns. For example, the use of an autodialer created a substantial likelihood that autodialers would call emergency services and could “seize” their telephone lines and prevent those lines from being utilized to receive calls from those needing emergency services. The Federal Communications Commission (FCC) and the judiciary, however, have developed differing interpretations of the TCPA, which created unintentional dangers for businesses properly utilizing telemarketing strategies. These dangers that were left unresolved by the Supreme Court’s ruling in Facebook, Inc. v. Duguid. This fragmented interpretation and application of federal law within various jurisdictions has left callers liable to substantial fines, so long as they use a device that merely has the capacity to act as an autodialer—even if the device did not actually use autodialer functionality. Such a broad interpretation places a heavy burden on companies using technology that does not create the kind of harm against which the TCPA was meant to protect. To effectuate Congressional intent, this Note proposes that the FCC should issue a new interpretation of the TCPA by declaratory ruling that will attach liability to defendants who make use of autodialer functionality, not those who’s devices merely have the capacity to do so. Alternatively, this Note proposes that either Congress amend the TCPA in a manner that better aligns with its goals, or the Supreme Court provide clarification to the lower courts as to how one acquires liability. This change will provide certainty and fairness to businesses, consumers, and the judiciary