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Cryptocorporations: A Proposal for Legitimizing Decentralized Autonomous Organizations
Get PDFA DAO does not fit well within the current landscape of recognized organizational structures and, rather than shoehorning it into one, states should recognize a new hybrid entity. This Note’s proposed Cryptocorporation form, with rules and protections better suited to the unique qualities of a DAO, could allow for the most appropriate tax treatment of shared profits, limit personal liability, and allow for an appropriate voting structure as articulated in the White Paper. The proposed Cryptocorporation would also protect investors and give the SEC more presumptive jurisdiction over the token-based-stock that is issued and represented exclusively through blockchain tokens. Cryptocorporations can actively attempt to preserve the pseudonymity which exists on a relevant blockchain network, because of the capabilities of electronic communication and the security of blockchain-based recordkeeping. In sum, by borrowing from and building upon the attributes of partnerships, LLCs, and corporations, the concept of the Cryptocorporation has the potential to foster the productive use and development of smart contract technology for decentralized organizations, while mitigating the risks to investors and facilitating a more frictionless secondary market
De Facto Shareholder Primacy
Get PDFFor generations, scholars have debated the purpose of corporations. Should they maximize shareholder value or balance shareholder interests against the corporation’s broader social and economic impact? A longstanding and fundamental premise of this debate is that, ultimately, it is up to corporations to decide. But this understanding is obsolete. Securities law robs corporations of this choice. Once corporations go public, the securities laws effectively require that they maximize share price at the expense of all other goals. This Article is the first to identify the profound impact that the securities laws have on the purpose of public firms — a phenomenon that it calls “de facto shareholder primacy.” The Article makes three primary contributions to the literature. First, it provides a rich and layered account of de facto shareholder primacy. The phenomenon is not the result of considered legislation and regulatory decision. Rather, hedge-fund activists leverage the transparency that the securities laws afford to identify, and force companies to adopt, strategies that increase share prices. Their activities cast a shadow over the public market. Because firms must maximize share prices or face costly, disruptive, and protracted battles with activist hedge funds, they preemptively focus solely on stock values. The activists’ novel and opportunistic use of the securities laws has transformed the regulatory apparatus into a powerful lever of shareholder primacy. Second, this Article shows how this distortion of the regulations causes harm. The activities of activists bring the laws into conflict with principles of federalism and private ordering, which hurts entrepreneurs, investors, and equity markets. Finally, to address these concerns, the Article recommends a small change to the securities laws that would end hedge-fund activism and thereby disentangle the securities laws from corporate purpose
Warming Oceans, Coastal Diseases, and Climate Change Public Health Adaptation
Get PDFClimate change is changing the world’s ocean in three important ways. First, the ocean is warming. Second, sea levels are rising. Finally, ice is melting. All of these changes have important implications for human disease risk, ranging from a fairly prosaic increase in harmful algal blooms to the science-fictionish re-release of deadly microbes from long ago.In the United States, coastal adaptation efforts to date have been sluggish. Many uncertainties attend climate change’s effects on the ocean, particularly with regard to sea-level rise and ice melting. In addition, the time scales involved are generally long, outside of the planning ken of most governmental agencies. Turning from physical risk to disease risk, however, can provide a more effective focus for immediate coastal adaptation efforts. Public health threats are politically salient in ways that climate change itself, or even sea-level rise, often are not. Moreover, a public health adaptation focus both addresses real human needs and can help to identify practical “no regrets” first steps that can advance more general adaptation efforts
FRAND Royalties, Anti-Suit Injunctions and the Global Race To The Bottom In Disputes Over Standards-Essential Patents
Get PDFWhile national courts have long exercised extraterritorial authority over domestic entities whose conduct abroad is prohibited in the domestic jurisdiction, national courts have recently begun to use disputes over domestic patent rights as vehicles for shaping the global business arrangements of private parties even absent any violation of national law. This phenomenon has become particularly pronounced in the context of “fair, reasonable and non-discriminatory” (FRAND) licenses of patents that are essential to the manufacture and sale of standardized products. This essay explores the increasing extraterritorial effect of national judicial decisions on licenses for standards-essential patents, including recent instances in which courts in the U.S. and UK have sought to establish global FRAND royalty rates for parties engaged in national patent litigation. It also examines the increasing use of the anti-suit injunction, a powerful procedural tool that can enjoin parallel foreign proceedings while disputes are adjudicated in a first jurisdiction. The combination of national courts’ willingness to determine global patent licensing rates, coupled with the rising prevalence of the anti-suit injunction, threatens to cause a new “race to the bottom” among jurisdictions in this commercially significant area of the law
Raping Indian Country
Get PDFIn this article, we have examined the policies of the Trump Administration as they relate to extractive development on and near Indian country, and policies related to the protection of Native people from rape and sexual assault. As demonstrated above, the Administration’s policies are likely to increase both the environmental and physical vulnerabilities of Native people. Native people will not only likely face exasperated physical insecurity, but their environments will likely be increasingly stripped on natural resources. As a result, the raping of Indian county continues. But, this article is not without hope. At least two ways forward, improvements upon the status quo exist. Tribal governments possess the requisite capacity to address the environmental and criminal challenges presented here. Further, changes to federal law, such as the Oliphant fix suggested above, provide meaningful opportunities for change. The rape of Indian country envisioned in this article is not a foregone conclusion; together change can protect our land and bodies
Frontiers in Precision Medicine IV: Artificial Intelligence, Assembling Large Cohorts, and the Population Data Revolution
Get PDFLarge cohort studies and more recently electronic medical records (EMR) are being used to collect massive amounts of genetic information. Implementation of artificial intelligence has become increasingly necessary to interpret this data with the goal of augmenting patient care. While it is impossible to predict what the future holds, policy makers are challenged to create guiding principles and responsibly roll out these new technologies. On March 22, 2019, the University of Utah hosted its fourth annual Precision Medicine Symposium focusing on artificial intelligence, assembling large cohorts, and the population data revolution. The symposium brought together experts in medicine, science, law and ethics to discuss and debate these emerging issues
Legislative Prayer: Historical Tradition and Contemporary Issues
Get PDFThe Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion . . . .”1 There is a great deal of confusion among scholars, lower federal courts, and the Justices of the Supreme Court over appropriate Establishment Clause principles,2 but it is at least clear that the government “may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so.”3 It has long been settled that state and local legislative bodies may, in harmony with the Establishment Clause, open meetings with prayers given by state-employed or volunteer clergy.4 Less clear is whether legislators themselves may (1) offer prayers in local government meetings, and (2) restrict the opportunity to give prayers to themselves. This Note reviews the history of legislative prayer in the United States and the Supreme Court’s decisions about clergy-led prayer practices, provides an overview of the current circuit-split on the issue of legislator-led prayer, argues that legislator-led prayer cannot be upheld under the same analysis used to allow clergy-led prayer, and proposes options for resolving the split
Making the Rules: The Governance of Standard Development Organizations and their Policies on Intellectual Property Rights
Get PDFThis study provides a comprehensive analysis of the governance of standard development organizations (SDOs), with a particular emphasis on organizations developing standards for Information and Communication Technologies (ICT). The analysis is based on 17 SDO case studies, a survey of SDO stakeholders, an expert workshop, and a comprehensive review of the legal and economic literature. The study considers the external factors conditioning SDO decision making on rules and procedures, including binding legal requirements, government influence, the network of cooperative relationships with other SDOs and related organizations, and competitive forces. SDO decision-making is also shaped by internal factors, such as the SDOs’ institutional architecture of decision-making bodies and their respective decision-making processes, which govern the interaction among SDO stakeholders and between stakeholders and the SDO itself. The study also analyzes governance principles, such as openness, balance of interests, and consensus decisionmaking, and discusses their interplay. The insights from these analyses are applied to SDO decision making on Intellectual Property Rights (IPR) policies, which represents a particularly salient and controversial aspect of SDO policy development
Dealing with Climate Change Under the National Environmental Policy Act
Get PDFThe National Environmental Policy Act (NEPA) was an important environmental law for several decades before climate change became an issue of concern. Beginning in the 1990s efforts began to include in NEPA’s environmental assessments and environmental impact statements both the impact of federal government actions on climate change and the impact of climate change on proposed federal actions. These efforts were encouraged by the Council on Environmental Quality. However, implementation at the agency level has been uneven. Some Federal agencies have resisted making serious efforts to incorporate climate change impacts into their decision-making process. Moreover, the courts have not been consistent in their reviews of agency compliance with NEPA, and the judiciary often give substantial deference to an agency’s minimal NEPA compliance. Since 2017, determining NEPA’s requirements for climate change analysis has become more challenging because the Trump Administration is changing federal environmental policies and regulations in order to encourage fossil fuel energy development and use, which will increase the emissions of greenhouse gases
Is the Supreme Court’s Patentable Subject Matter Test Overly Ambiguous? An Empirical Test
Get PDFThis Article shows that the new two-step patent-eligibility test is not as unadministrable as at least its most ardent critics have suggested. More research is necessary to ascertain how much better the attorneys would have predicted court outcomes had they spent more time on their predictions and had access to more information