Law Commons^™

The Battle With Big Tech: Analyzing Antitrust Enforcement And Proposed Reforms, Youngjae Lee, Morgan Hagenbuch

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Fresh Start Paradox: Economic Disaster Relief Available To Title 11 Debtors, Kellsie Davis Ruane

Emory Bankruptcy Developments Journal

The Small Business Administration (“SBA”) has been providing disaster relief in the form of Economic Injury Disaster Loans (“EIDLs”) since its inception in 1953. In the context of the COVID-19 pandemic, the CARES Act charged the SBA with issuing forgivable loans through the Paycheck Protection Program (“PPP”) to small businesses which would otherwise face permanent closure. Though the CARES Act did not specifically grant the SBA authority to do so, the SBA interpreted its powers to include the ability to set requirements for loan approval which were not laid out in the Act itself. Specifically, the SBA promulgated a rule …

From Director Liability To Officer Liability To Esg Caremark Claims: A Natural Evolution?, Gareth Mchugh

Emory Corporate Governance and Accountability Review

With the McDonald’s decision, officers and directors could face Caremark liability for the first time, and this decision could also lead to an influx of ESG-based Caremark claims in Delaware Courts. This Comment explains that, while ESG Caremark claims would force corporations to adopt ESG oversight systems to avoid liability, the very political, social, and legal environment that created a growing call for ESG Caremark claims presents a beneficial opportunity for corporations to appeal to consumers and investors by proactively adopting ESG oversight systems. Corporations are at a nexus where they can either willingly adopt ESG oversight systems and reap …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Seattle University Law Review

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear.1 Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

#Metoo And The Corporation In Popular Culture, Brenda Cossman

Seattle University Law Review

#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the …

Shareholder Inspection Rights: From Credible Basis To Rational Belief, Lynn Bai

Emory Corporate Governance and Accountability Review

Jurisdictions are split on the standard of proof for shareholder inspection lawsuits when inspections are for the purpose of investigating managerial misconduct. Delaware and its followers apply a credible basis standard that calls for extrinsic evidence, beyond mere suspicion, curiosity, or disagreement with management, to permit an inference of misconduct. A minority of jurisdictions require shareholders to show merely a rational belief that mismanagement likely happened. Rational belief can be satisfied by sound logic without referencing extrinsic evidence. The Delaware Supreme Court rejected rational belief for fear that a permissive standard would lead to a cascade of frivolous inspections, although …

Masthead

UC Law Business Journal

No abstract provided.

Foreword, Nicholas Keenan, Senya Merchant, Clara Lane

UC Law Business Journal

No abstract provided.

The Security-Shaped Hole In Global Anti-Corruption: Closing The Loop On The Fcpa, Tarun Krishnakumar

UC Law Business Journal

Despite the significant interplays between national security and corruption, discourse around the national security dimensions of the Foreign Corrupt Practices Act (FCPA) – the most prominent global anticorruption framework – has been limited. With the deepening of global economic dependencies and data flows in critical areas such as telecommunications and ICT, there is ample reason to suggest that the use of private sector entities by governments for national security (e.g., intelligence-gathering) purposes is only likely to become more common. Recent controversies around the activities of Crypto AG and Huawei only serve to support this trend.

Within this broad context, this …

Don’T Let The Green Grass Fool You: Green Contingent Convertible Bonds And Their Role In The Pursuit Of A Sustainable Economy, Eyolf Aaro

UC Law Business Journal

This paper exposes some prominent issues that arise when banks label their contingent convertible bonds (CoCos) as “green,” and proposes a mechanism to improve green CoCos as climate change mitigation instruments. The green label is weakly protected due to regulatory requirements for capital instruments issued by banks. Current and proposed green bond frameworks, when applied to standard green bonds are insufficient in ensuring real environmental impacts from the bonds, are not prepared for the novelty of labeling CoCos as green. The result is a financial instrument through which issuing banks unsuccessfully try to achieve both regulatory and environmental aims. The …

Attack On Antitrust: Preventing A Grim Future For Anime Streaming, Michael L. Cederblom

UC Law Business Journal

No abstract provided.

The Collapse Of The Turnover-Proof Business Model: Combatting A Labor Crisis, Simran Thiara

UC Law Business Journal

No abstract provided.

Inherently Incompatible: The Irreconcilable Tension Between Corporate Negligence Claims And The Federal Tort Claims Act, Veronica J. Finkelstein

Emory Corporate Governance and Accountability Review

No abstract provided.

United We Stand, Divided We Fall: A Survey Of Current Public And Private Initiatives Addressing Board Diversity & A Proposed Sec Diversity Disclosure To Help Increase Board Diversity, Gabrielle Hunter

Emory Corporate Governance and Accountability Review

No abstract provided.

40 Acres And A Mule: Accountability For Corporations To Provide Reparations To Historically Black Colleges And Universities For Profits From Slave Labor, Meghan K. Marks

Emory Corporate Governance and Accountability Review

No abstract provided.

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …

Sheriffs, Shills, Or Just Paying The Bills?: Rethinking The Merits Of Compelling Merchant Cooperation With Third-Party Policing In The Aftermath Of George Floyd’S Death, Stephen Wilks

Washington and Lee Law Review

This Article frames the killing of George Floyd as the result of flawed business regulation. More specifically, it captures the expansion of third-party policing paradigms throughout local nuisance abatement regulations over a period of time that coincided with the militarization of policing culture across the United States. Premised on the notion that law enforcement alone cannot succeed in reducing crime and disorder, such regulations transform grocery stores, pharmacies, bars, and other retail spaces into surveillance hubs by prescribing situations that obligate businesses to contact the police. This regulatory framework, however, sustains the larger historical project of rationalizing enhanced scrutiny of …

Pedaling Backwards: Examining The King County Board Of Health’S Choice To Repeal Its Bicycle Helmet Law, Schuyler M. Peters

Seattle University Law Review

In Part I, this Comment will explain the Helmet Law itself and the timeline that ultimately led to its repeal. Part II will focus on the positive impact of the Helmet Law, the dangers associated with the repeal, why the repeal should not have occurred in the manner it did, and what societal costs stem from the BOH’s decision. Part III will address the actions that must be taken to revoke this repeal and the reasons behind these alternative pathways, including an Equity Impact Review study specifically on the consequences of repeal, a collaborative outreach program to bring helmets to …

The Solution To Shadow Trading Is Not Found In Current Insider Trading Law: A Proposed Amendment To Rule 10b5-2, Jamel Gross-Cassel

Fordham Journal of Corporate & Financial Law

Shadow trading is a lucrative way to exploit a loophole in insider trading law. Insiders abuse this loophole to make six-figure profits and escape liability when done at the right companies. Those who shadow trade use material, nonpublic information to trade not in the securities of their own company, which would be illegal, but in the securities of a closely related company where the information is just as impactful. Efforts to close this loophole rely on the individual insider trading policies of the involved companies. These policies vary in language, making liability for shadow trading dependent on specific language or …

The Exit Theory Of Judicial Appraisal, William J. Carney, Keith Sharfman

Fordham Journal of Corporate & Financial Law

For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders based on widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to be completed.

In this Article, we propose to end the problem of discretionary judicial valuation by tracing …

Money Creation And Bank Clearing, Nadav Orian Peer

Fordham Journal of Corporate & Financial Law

Like many other countries, the U.S. money supply consists primarily of deposits created by private commercial banks. How we understand bank money creation matters enormously. We are currently witnessing a debate between two competing understandings. On the one hand, a long-standing conventional view argues that bank money creation originates in individual market transactions. Based on this understanding, the conventional view narrowly limits the scope of banking regulation to market failure correction. On the other hand, authors in a new legal literature emphasize the public aspects of bank money creation, characterizing it as a “public franchise,” a “public-private partnership,” and part …

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

Blood On The Tracks, Thomas D. Russell

Seattle University Law Review

Streetcars were the greatest American tortfeasors of the early twentieth century, injuring approximately one in 331 urban Americans in 1907. This empirical study presents never-before-assembled data concerning litigation involving streetcar companies in California during the early twentieth century.

This Article demonstrates the methodological folly of relying upon appellate cases to describe the world of trial court litigation. Few cases went to trial. Plaintiffs lost about half their lawsuits. When plaintiffs did win, they won very little money. Regarding the bite taken out of the street railway company, the Superior Court was a flea.

Professor Gary Schwartz and Judge Richard Posner …

A Path Forward: Litigating The Treaty-Based Claims Of Children Sexually Abused In The Indian Health Service System, Peter B. Janci, Stephen F. Crew, Zachary Pangares

Seattle University Law Review

In 1855, representatives for the United States traveled to the Great Plains with orders to seek peace with Blackfoot Nation so the westward expansion of “civilized” white settlers could continue without interruption. After weeks of negotiations, the United States plan materialized. The terms of these promises were memorialized on October 17, 1855, in a treaty between the United States government and Blackfoot Nation.

One hundred and sixty-seven years later, representatives for the United States and the Blackfoot Nation convened in Rapid City, South Dakota to discuss the U.S. government’s breach of the treaty’s terms. Eight Native men, including three from …

Investment Bankers And Inclusive Corporate Leadership, Afra Afsharipour

Seattle University Law Review

Few major deals happen without the engagement and advice of investment bankers. Whether a company is undertaking an initial public offering or engaging in a large merger or acquisition deal, investment bankers play a central role in advising corporate executives. Successful investment bankers are devoted to cultivating relationships with executives. And these relationships place bankers in a position to earn tens of millions in fees for their advisory and service roles in connection with corporate dealmaking. Investment bankers’ constant endeavors to nurture relationships with executives, while also maximizing their own ability to enhance fees, commonly leads to allegations of double-dealing, …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Gender And The Constitutional Theory Of The Firm, Jamee K. Moudud

Seattle University Law Review

This Article adds to the literature that has linked feminist economics to foreign trade and development. It argues that two key factors need to be in place jointly if efforts to promote gender equity are to succeed. On the one hand it argues that foreign debt is an important constraint to domestic progressive social policies of all kinds as it increases the power of international creditors who generally tend to support austerity policies. On the other hand, while alleviating the burden of foreign debt via exportpromotion policies is necessary, it is by no means a sufficient condition to promote domestic …