Law Commons^™

Promoting Esg Investing By Trustees: Risk Management And Structuring Solutions, Vincent Ooi, Alvin W. L. See

Research Collection Yong Pung How School Of Law

The world is falling behind on its commitments to tackle some of the most pressing problems of this century: climate change, inequality, and other obstacles to building a sustainable future. In 2015, all Member States of the United Nations adopted the 2030 Agenda for Sustainable Development which set out 17 Sustainable Development Goals (‘UNSDG’) and 169 targets spanning the spectrum of environmental, social and economic dimensions of development. At the mid-point to 2030, the UN Secretary-General reported that of the roughly 140 targets for which data is available, about 12 per cent are on track; more than half are moderately …

The Compatibility Of The Substance Over Form Doctrine With Tax And Investment Treaties: A Case Study Of Lone Star V The Republic Of Korea, Blazej Kuzniacki

Research Collection School Of Accountancy

In late August 2022, the Lone Star tribunal concluded one of the latest awards in tax-related investment treaty disputes (the tax-related claims account for almost USD 1.5 billion of the total of almost USD 4.7 billion claimed in compensation). It also is the first award in which the tribunal dealt with the application of the substance over form doctrine (SOFD) by tax authorities and courts of the host state to prevent the abuse of a double tax treaty (DTT), and the impact of the refusal to accord the claimants the benefits under the DTT via a domestic (Korean) SOFD on …

Exiting The Disaster, Evading The Responsibility? Wadi Al-Qamar -- The Moon Valley, Suzan Nada

Perspectives

This essay explores a case that delivered no results for the complainants, where harm was not prevented, and where stakeholders who filed the complaint were not compensated. Investigated by the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC), the Wadi al-Qamar case illustrates some of the limitations of accountability mechanisms in limiting the harms caused directly or indirectly by projects in which the International Financial Institutions (IFIs) invest.

Ending 30 Years Of Imf Exceptionalism: A Call For An Accountability Mechanism At The International Monetary Fund, Luiz Vieria

Perspectives

This year marks the 30^th anniversary of the World Bank’s Inspection Panel (WBIP or Panel), created as the result of grass-roots and international pressure on the Bank to address the well-documented negative impacts on marginalised communities of the Bank-financed Narmada dam and similar projects.

The establishment of the world’s first independent accountability mechanism (IAM) at the World Bank led to the creation of similar mechanisms at nearly all international financial institutions (IFIs), with the IMF an important exception. The establishment of the WBIP and other IAMs was a step-change in accountability, as previously IFIs were only accountable to shareholders …

Unacceptable Means: The Inspection Panel Actions On World Bank Forcible Resettlement, Lori Udall

Perspectives

This essay reviews the World Bank’s Inspection Panel’s work on cases involving involuntary resettlement. Since its Inception, the Panel has received 89 requests involving resettlement (over half of all cases) and has investigated 32. It traces Panel cases, lessons learned, and advisory reports on resettlement and livelihood restoration. Despite the growing evidence through the years of resettlement failures, the World Bank continues to violate its own safeguard policies and repeat the same omissions and mistakes in projects. The essay concludes with recommendations for empowering the Inspection Panel and for the Bank to move towards bottom-up community development that better addresses …

Political Neutrality In The Rules Of International Sports Federations: Compatible With Fundamental Freedoms?, Ilias Bantekas

Fordham Intellectual Property, Media and Entertainment Law Journal

International sports federations celebrate and impose strict political neutrality in their institutional rules. Such neutrality is inconsistent with the individual rights of athletes to freedom of expression and peaceful assembly. The contractual basis of such restriction is irrelevant because fundamental rights are constitutionally entrenched and cannot be limited by contract or law, save for if the expression incites to violence, hatred, discrimination or is otherwise inconsistent with criminal law. There is no empirical evidence suggesting that restricting the political expression of influential athletes leads to generalized political or other violence. Instead, it is clear that international sports federations, and particularly …

The Jack Daniel’S Dialogues, Michael Grynberg

Fordham Intellectual Property, Media and Entertainment Law Journal

Jack Daniel’s Properties, Inc. v. VIP Products LLC threatened to upend the balance between trademark rights and expressive freedom. While not going as far as it might have, the opinion limits the ability of defendants to resist trademark claims that target artistic or noncommercial speech.

As important as this result is, we should not overlook a fundamental preliminary question. How could a dog chew toy that mocks Jack Daniel’s whiskey be the basis of a viable trademark infringement claim? Answering that question requires discussing deep issues within modern trademark law.

These antecedent questions were not directly before the Court, but …

Photographic Memory: Expanding “News Deserts” Threaten To Erase The Visual Record Of Contemporary American History, Frank D. Lomonte, Lila Greenberg

Fordham Intellectual Property, Media and Entertainment Law Journal

As local newspapers close their doors across America, one of the unheralded casualties of their demise may be the loss of the institutional memory of their communities. Photo morgues maintained by newsroom librarians are an invaluable reference for researchers and filmmakers seeking to trace the visual history of localities. While some forward-thinking news organizations have donated their archival photos for preservation, there appears to be no industrywide plan for doing so, meaning that countless thousands of unpublished—but historically valuable—photos are at risk of destruction as cost-cutting newspapers eliminate their libraries, sell off their buildings, or go out of business entirely. …

Forming A More Perfect Union With Blockchains And Nfts: Why The United States Should Embrace An E-Government, Alexandria Labaro

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note analyzes blockchain and non-fungible token (“NFT”) technology in the government, emphasizing the benefits of technological integration for improved data security and streamlined bureaucratic processes. It follows the growing popularity of “e-government” practices across the globe and considers factors associated with integrating blockchain and NFT technology in U.S. governmental procedures.

Ai Voice Enters The Copyright Regime: Proposal Of A Three-Part Framework, Prachi Patel

Fordham Intellectual Property, Media and Entertainment Law Journal

We are told that our voice is one of the most powerful tools we have. However, is it just as powerful if it can be replicated? Artificial intelligence has developed to the point where it can create an exact clone of a person’s voice. While there have been many advancements in this field, there are few laws that address artificial intelligence and its use. Artificial intelligence has been used to create artificial voices of well-known figures, both deceased and alive, some without their consent. This creates a need to balance the incentivization of technological development and the protection of an …

Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love

Emory Law Journal

In 2000, an online toy retailer, Toysmart.com, attempted to liquidate consumer data to pay creditors in its bankruptcy case. The attempted sale drew objections from the Federal Trade Commission and forty-seven state attorneys general. Five years later, Congress attempted to resolve privacy concerns in bankruptcy, amending the Bankruptcy Code to provide clear procedures for the liquidation of “personally identifiable information.” Recently, scholars have criticized these amendments, characterizing them as “limited,” “outdated,” and “privacy theater.” This Comment adds to these criticisms, arguing the amendments’ failure to mandate consideration of relevant nonbankruptcy law puts these permissive sales procedures on a collision course …

Intraparty Conflict And The Separation Of Powers, Gregory A. Elinson

College of Law Faculty Publications

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that contrary to the Madisonian vision competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

Regulating Driving Automation Safety, Matthew T. Wansley

Emory Law Journal

Over forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting …

Protecting Title Ix’S Promise: The Injustice Of Indifference In Title Ix Peer Sexual Harassment Cases, Emily Harvey

Emory Law Journal

Title IX of the Education Amendments of 1972 promised dramatic measures to address sex-based discrimination in education. In the context of civil suits against schools involving peer sexual harassment, these measures have yet to live up to their promise. Under the existing standard, student victims of peer sexual harassment must demonstrate that their educational institutions responded to their reports of harassment with “deliberate indifference.” This standard favors institutions over students as it imposes liability only in the most egregious cases. A deepening conflict between the circuit courts regarding what deliberate indifference actually requires compounds concerns over the standard’s ineffectiveness. Courts …

The End Of Arbitrage: Recent Chancery Court Decisions Highlight Delaware’S Need To Overturn Transkaryotic, Celia Golod

Emory Law Journal

Appraisal is a legislatively created right that affords a shareholder the ability to seek a judicial ruling on the fair value of their stock when their corporation undergoes a merger that they do not support. While this remedy is intended to protect shareholders from faulty merger negotiating, in the 2010s hedge fund petitioners in Delaware flooded the Delaware Chancery Court to use the remedy to make a profit—a tactic called appraisal arbitrage. While appraisal arbitrage theoretically acts as a back-end market check on controller abuses, appraisal litigation is lengthy and requires court resources. Further, appraisal arbitrage allows hedge fund petitioners, …

Mythical Adverse Effect, Naveen Thomas

Emory Law Journal

The material adverse effect (MAE) definition in mergers and acquisitions agreements is one of the most intensely negotiated, litigated, and studied contract provisions ever. Practitioners and scholars alike encourage attorneys to bargain extensively over these definitions, which have inexorably grown in length and complexity over the past two decades.

Challenging this longstanding conventional wisdom, this Article shows that endemic efforts to customize MAE definitions’ language are in fact inefficient and counterproductive. Each of the purported benefits commonly attributed to extensive MAE negotiation—most notably, risk allocation and renegotiation incentives—is illusory under Delaware law, which governs most major M&A agreements. Careful analysis …

Narrowing The Police Accountability Gap In Civil Rights Prosecutions, Daniel W. Xu

Emory Law Journal

The absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. …

Animating A Statutory Right: Access To Counsel For Noncitizens In Reasonable Fear Review, Reese Wilking

Emory Law Journal

When a noncitizen in an expedited removal proceeding has a colorable claim to delay their deportation for fear of torture in their home country, a special review process occurs. Certain noncitizens face an especially stringent procedure—the reasonable fear review hearing, where a noncitizen must navigate a complex legal argument before an immigration judge to show that they meet specific statutory and regulatory criteria for relief from or delay of deportation. Congress has specified that noncitizens are entitled to access counsel at this reasonable fear review hearing; yet, all too often, the hearing takes place without attorneys present who were already …

Reassessing The Rule Of Law Legacy Of The Khmer Rouge Tribunal, Randle C. Defalco

University of Pennsylvania Journal of International Law

The focal point of transitional justice efforts in Cambodia have been recently-completed criminal prosecutions at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). Like other international criminal justice institutions, the ECCC has been framed as not only a criminal court, but also as an institution capable of helping achieve various transitional justice goals such as improving the rule of law and respect for human rights domestically in Cambodia. This Article identifies troubling connections between the ECCC experience and the Cambodian government’s increasing use of rule by law tactics in recent years. The Article identifies two related ways in which …

Volume 45, Issue 3 Masthead

University of Pennsylvania Journal of International Law

No abstract provided.

Somethings Old, Somethings New And A Lot That’S Blue: Political Economic Reflections On Worker Subordination And The Law In Contemporary Capitalism, Eric Tucker

All Papers

Debates over worker subordination are central to discussions of the efficacy of protective labour and employment law whose central mission in a capitalist political economy, after all, is to reduce but not eliminate subordination. When protective labour and employment law seems to be fulfilling its mission discussions of worker subordination seem to ebb, but the topic becomes more urgent as the efficacy of the law declines. Not surprisingly, as labour law’s efficacy has been declining over the past several decades, we are in the midst of a revival of debates over worker subordination, the premise of this special issue. While …

Silencing Jorge Luis Borges The Wrongful Suppression Of The Di Giovanni Translations, Wes Henricksen

Faculty Scholarship

No abstract provided.

Navigating The Tension Between Preservation And Development Pressure: Cities’ Imperative To Save Independent Music Landmarks While Simultaneously Providing For Growth, Mary-Michael Robertson

Vanderbilt Journal of Entertainment & Technology Law

While cities can use their power to enact zoning ordinances and create historic preservation districts, these preservation ordinances vary widely across the United States, from allowing almost any type of development to strictly limiting any new development that does not match existing height, density, and use patterns. Within this framework, state legislatures have often limited the types of regulatory actions cities may take, as cities are merely political subdivisions of the state. Some states—known as “Dillon’s Rule” states—restrict cities from taking novel legislative approaches to existing policy issues, such as affordable housing, unless those powers are expressly provided to the …

Don't Mess With Texans' Rights: Protecting Transgender Youth From The Paternalistic Policies Of State Executives, Mary Franklin

Indiana Journal of Law and Social Equality

Texas Attorney General Ken Paxton issued an opinion in 2022 detailing how gender-affirming care for transgender minors constituted child abuse under the Texas Family Code. As a result of this opinion, multiple families of trans teens engaging in various forms of gender-affirming care were investigated by the Texas Department of Family and Protective Services. This Article applies the constitutional standards imposed by the equal protection clause, substantive due process, and parental authority to Paxton’s recommendation, using both the U.S. and Texas Constitutions. Ultimately, this Article concludes that Paxton’s opinion fails to meet these constitutional standards and recommends action from the …

How A “Superstar” Ceo Exposes The Necessity For Third Party D&O Insurance, Angela N. Aneiros, Karen Woody

Scholarly Articles

he influence that “superstar” CEOs have over a company’s board of directors can be alarming. Among other things, Elon’s ability to skirt personal liability for seemingly obvious breaches of duty has raised concerns within the realm of corporate governance and corporate regulation. While much has been written on Elon’s influence on Tesla’s board of directors, one area of the law that often gets overlooked that has exacerbated Elon’s corporate governance issues, is that of directors and officers (D&O) liability insurance. While personally insuring board members seems like a very "Elon" move, it could have broader implications beyond Elon. Are “superstar” …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Drug Dealing And The Internal Morality Of Medicine, Matt Lamkin

Articles, Chapters in Books and Other Contributions to Scholarly Works

Which practices qualify as “medical” in nature? This question has important legal implications. Every state has laws prohibiting the “unauthorized practice of medicine.” Health insurance policies generally limit coverage to procedures that are “medically necessary.” And physicians can be prosecuted as drug traffickers if they prescribe controlled substances without a “legitimate medical purpose.” Each of these questions—and many others—hinge on how medicine is defined.

As with many common terms, we all have a general understanding of what medicine is and this heuristic suffices to carry us through our daily lives without complication. Yet when called on to produce a precise …