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Law’s Facilitating Role in the Field of Social Enterprise.
No full textA Review of Dana Brakman Reiser and Steven A. Dean. Social Enterprise Law: Trust, Public Benefit, and Capital Markets. New York: Oxford University Press, 2017, 216 pp., $44.95 (hardback) ISBN 978-0-19-024978-6To appreciate the contribution of Professors Dana Brakman Reiser and Steven A. Dean in their pathbreaking volume on social enterprise law, we must begin by recognizing what we are not discussing. As the authors declare: “social enterprises are not charities” (p. 165). By definition, social enterprises are businesses, and thus not subject to the nondistribution constraint so familiar to nonprofit scholars and practitioners. An impact investor seeks profit, perhaps limited because of the social mission or to redirect to a new social enterprise. But the dual motives open up the parties to the risk that their objectives will not align. Brakman Reiser and Dean examine how the law can perform a supporting function in developing trust between social enterprise entrepreneurs and potential investors (and among investors). Because investing for mission is a voluntary exchange in a situation of asymmetric information – sound familiar? – the law can enable vehicles that enhance the reliability of signals and back up pre-commitment devices....Now we arrive at our topic: Given that the law is largely organized around organizational form, what happens when the participants seek both margin and mission? Accustomed to a sectoral analysis of nonprofit activity, many legal scholars and practitioners – as well as policy makers, regulators, and judges – are left discomfited by the rise of social enterprise, hybrid organizations, and double-bottom-line ventures.https://www.degruyter.com/view/j/npf.2018.8.issue-4/npf-2017-0035/npf-2017-0035.xm
The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty
No full textHaack on Legal Proof
No full textIn this paper I discuss Susan Haack’s illuminating discussion and constructive critique of the current confusion regarding the standards of proof employed in the law, focusing especially on mathematical probability rather than warranted belief interpretations of those standards. At the end, I question Haack’s claim that statistical evidence is relevant not only for establishing the existence of a causal process but also, although usually insufficient by itself, for proving actual causation in a specific case
Baby Got (a Broken) Back, But No Remedy: The Seventh Circuit’s Refusal to Provide a Remedy for Eighth Amendment Violations
Get PDFSince 1871, individuals have been able to bring a cause of action against state officials who violate the individual’s constitutional rights. However, it wasn’t until the 1965 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that the U.S. Supreme Court created a cause of action for individuals whose Fourth Amendment rights were violated by federal officials. Since 1965, this cause of action, known as a Bivens action, has been extended to violations of the Fifth and Eighth Amendments
The Cost of Obeying the Law?: The Seventh Circuit Rejects the Bona Fide Error Defense from a Debt Collector Who Followed the Then-Binding Law
Get PDFIt is expected that people should follow the law, which includes the statutes themselves and the judicial rulings interpreting those statutes. However, if the binding judicial interpretation changes, should the parties be liable for their behavior following the old binding judicial interpretation of a federal statute at the time when it was still in effect? Or, should there be any defense that would allow the parties to shield themselves from liability for a good-faith reliance on the old binding judicial interpretation
Modularity in Cross-Border Insolvency
Get PDFThis Article proposes a framework for thinking about the design structure of the Model Law on Cross-Border Insolvency. The Model Law has been successful by many metrics; however, it has faced various implementation challenges. As leading scholar Professor Jay Westbrook has noted, thinking about these problems requires thinking about the Model Law as a system. To understand the system, it is necessary to understand its architecture, and I argue that this architecture is best understood as reflecting a modular design structure, i.e., one that divides complex systems into a hierarchical system of self-contained components. Modularity has provided insights into other areas of law, such as contract and property doctrine, and it can provide important insights to both explain the Model Law and to provide guidance on its most problematic areas
Class Dismissed: Compelling a Look at Jurisprudence Surrounding Class Arbitration and Proposing Solutions to Asymmetric Bargaining Power Between Parties
Get PDFClass actions and arbitrations have existed since the United States’ inception. Since the mid-twentieth century, both Congress and the U.S. Supreme Court have helped arbitration blossom from litigation’s overshadowed alternative to a prominent means of resolving disputes. Soon, the commercial industry proceeded to incorporate arbitration provisions in their consumer and employment contracts. That way, when a dispute arose between the business and a person, the business would arbitrate with claimants individually. Plaintiffs’ attorneys who favored collective action proceedings like class actions, however, pushed for courts’ allowance of class arbitration—a class proceeding conducted within an arbitration’s confines.
Corporations litigated such class arbitrations’ legitimacy; their efforts are catalogued in a series of U.S. Supreme Court challenges that started in the early 2000s and continue to the present day. In many instances, these seemingly mundane cases resulted in sharply divided holdings by the Court’s justices; most notable of these were AT&T Mobility, LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, where the Court upheld individual arbitration provisions in pre-dispute contracts, and foreclosed plaintiffs’ access to class arbitrations and class actions in many contractual contexts.
This Note begins by summarizing the jurisprudential stance presently assumed by the Supreme Court in cases addressing arbitration provisions. It subsequently outlines the kaleidoscopically variant viewpoints on arbitration clauses from legal scholars, large law firms, and media outlets. Finally, the Note posits several solutions to the growing problem many individuals face when they enter into some of the most routine contracts of everyday life: the foreclosure of their ability to proceed as a class in a collective action against a plaintiff and effectively redress their grievances
The Rise of Automated Investment Advice: Can Robo-Advisors Rescue the Retail Market?
Get PDFDifferent types of financial advisers serve the massive and widely dispersed retail investment market. In a market riddled with conflicts of interests, many advisers exploit retail customers by pitching suboptimal products, leading to lower investment returns and lower overall growth—but also to greater profits for the financial advisers collecting kickback-style commissions. New financial technology firms, commonly known as Robo-Advisers, may disrupt this market and these exploitative practices. Still, these potentially disruptive automated investment advice firms face significant regulatory risks