Business Organizations Law Commons^™

The Chicken Or The Egg: The Proper Order Of Analysis When Determining The Enforceability Of A Delegation Clause And The Broader Arbitration Agreement In Consumer Contexts, Parker Reynolds

American University Business Law Review

First, this Comment will provide pertinent background on the Federal Arbitration Act (“FAA”) to better understand the intent of the legislation and how it has historically been applied. Second, this Comment will seek to not only explain the underlying cause of the circuit split but also offer a framework for the proper order of analysis in situations with both a delegation claim and an unenforceability claim. Specifically, this Comment will argue that although a delegation clause’s enforceability must be analyzed separately from the entire agreement’s enforceability, the delegation clause must be examined within the context of the arbitration agreement to …

Accidental Corporate Social Norms, David Kwok

American University Business Law Review

Corporations deliberately attempt to shape social norms through advertising, publicity, and political contributions. This paper considers the threat of corporations’ accidental influence on social norms and expectations. When corporations have accidents, we frequently focus on direct harms: an oil platform may catch fire and explode, leading to environmental and human losses. These accidents may also impact social norms, though. If users stay with a dominant social networking firm despite repeated data privacy breaches, for example, people might come to accept a lack of data privacy. Dominant firms may inadvertently facilitate rapid reshaping of societal expectations. Judicial recognition of this threat …

Clothes Captioning: The Demand For A Sustainable Fashion Industry And The European Union’S Push For Digital Product Passports, Grace Baer

American University Business Law Review

First, this Comment will provide background on the demand for transparency on the fashion industry, its response, and the regulatory framework proposed by the EU. Then, Part III will argue that the ESPR and the SSCT fall short of meeting the EU’s objectives because their requirements, as applied to textiles, are too stringent; their enforcement and effect on trade partners too disparate; and the risk of businesses’ intellectual property too high. In Part IV, this Comment will recommend that the EU strengthen its proposals by providing guidance on enforcement, equal treatment of small and medium-sized enterprises (“SMEs”) in the textile …

Rediscovering Adam Smith: An Inquiry In The Rule Of Law, Competition, And The Future Of The Federal Trade Comission, Melissa Holyoak, Christopher G. Mufarrige

American University Business Law Review

It is my privilege to be here to celebrate the 40th anniversary of the Competitive Enterprise Institute (³CEI´), along with the 300th birthday of Adam Smith. For decades, CEI has been at the vanguard of free-market advocacy, and it is wonderful to combine CEI's anniversary with a celebration of Adam Smith. I will start with a standard disclaimer: The views I express today are my own. They do not necessarily represent those of the Federal Trade Commission (FTC or ³Commission´) or any other commissioner.

U.S. Securities And Exchange Commission And The "Deep Administrative State": A Case Study Of Its Esg Rules, Jerry W. Markham

American University Business Law Review

This study examines the highly controversial “environmental, social, and governance” (ESG) rules that were adopted by the Securities and Exchange Commission (SEC) in 2024. Those rules require large public companies to disclose their policies for dealing with climate change and report their greenhouse gas emissions. Critics charge that those rules are the product of a “deep state” administrative agency that is operating outside the checks and balances imposed by the Constitution on other government actors. The study relates the background for these deep state concerns and the constitutional and statutory restraints that were intended to prevent the development of such …

Hollywood's Triple Threat: Writers, Actors, And Antitrust Regulators Take On The Streaming Giants, Remy S. Farkas

American University Business Law Review

In the summer of 2023, Hollywood froze when actors, writers, and crew took to the picket lines. Their gripe: the recent mega mergers by media conglomerates. The Writers Guild Association and Screen Actors Guild American Federation of Television and Radio Artists joined forces to protest recent acquisitions by Disney, Amazon, and Netflix; these companies vertically integrated within the industry, which allowed them to exploit workers, limit content, and raise prices for consumers. In the same summer, the Department of Justice and Federal Trade Commission released Draft Merger Guidelines, which included thirteen new guidelines for evaluating whether a merger violates antitrust …

State Taxing Power Over Tribal Leasing Activity: Balancing Bracker With The Call To Modernize, Caitlyn Lindstrom

American University Business Law Review

Federal law operates on the premise that state jurisdiction does not interfere with American Indian jurisdiction, and it is generally accepted that states may not tax Indian entities or members. However, the Supreme Court held that there are circumstances in which states may extend taxation onto non-Indians residing on tribal lands. In cases where Indians believe that states are violating legislation or regulations prohibiting state taxation, the Court follows the Bracker balancing test, an interest balancing test that weighs state, federal, and tribal interests. As with most balancing tests, this test lacks strict guidance on how to properly weigh certain …

Enforcing International Human Rights Law Against Corporations, Barnali Choudhury

All Papers

International human rights law is generally thought to apply directly to states, not to corporations since the latter is not a subject of international law. Some domestic courts are, however, enforcing these norms against corporations in domestic settings. Canadian courts have, for instance, recognized that corporations can be liable for breach of customary international law norms while UK courts have enforced international human rights norms indirectly against corporations relying on a combination of domestic corporate and tort law.

At the same time, some states are choosing to enforce international human rights norms against corporations using regulatory initiatives. These initiatives, known …

Catalyzing Climate Resilience In The Electric Utility Sector: Investor-Backed Utilities Must Prepare For The Approaching Storm, Jose J. Gonzalez

Emory Business Law Review

Communities and businesses that fail to take proactive measures will be devastated by the impacts of climate change. Across the United States, public and private entities have taken steps to protect companies and communities from climate change. However, financial restrictions and shareholder concerns have slowed such a response from the electric utility sector. This inaction has devastated communities such as Paradise, California and Lahaina, Hawaii. This Comment identifies how electric utility companies should utilize recently passed federal legislation, including the Bipartisan Infrastructure Law and Inflation Reduction Act, to finance large-scale projects to update America's power grid. This Comment also argues …

The End Of Remedies?, Joshua Shapiro

Emory Business Law Review

No abstract provided.

It’S Not Personal, It’S Strictly Business: The Need To Amend The Federal Rules Of Evidence To Permit Live Corporate Designee Testimony At Trial, Veronica J. Finkelstein

Emory Business Law Review

No abstract provided.

How American Sports Leagues Can Respond To The Rise Of Sovereign Wealth Funds, Chris Chen

Emory Business Law Review

This Comment explores the transformative impact of well-funded Middle Eastern sports leagues on the global landscape of professional sports. Fueled by substantial financial support from sovereign wealth funds, these leagues have raised concerns about the possibility that domestic American players may choose to leave their current league in favor of one of the opportunities for more lucrative salaries overseas. The rise of LIV Golf catalyzes these discussions. This Comment also delves into how American sports leagues may respond by potentially allowing players to have equity stakes, engage in sponsorships with gambling websites, and participate other revenue-sharing arrangements. The potential corporate …

Bridging The Gap In Corporate Governance For Interlocking Directors In Colombia, Juan D. Ovalle

Emory Business Law Review

No abstract provided.

Negotiating For Certainty In An Uncertain World, Matthew D. Kent

Emory Business Law Review

No abstract provided.

Antitrust, Labor Markets, And Issue-Spotting Dei Initiatives, Francesca Pisano

Emory Business Law Review

No abstract provided.

When Can An Agreement On Environmental Policies Comply With U.S. Antitrust Laws?, Nathan Mendelsohn

Emory Business Law Review

No abstract provided.

Federal Enforcers Signal Heightened Scrutiny Of Algorithm Use To Inform Pricing Decisions, Lohr A. Beck, Carley H. Thompson

Emory Business Law Review

No abstract provided.

States, Firms, And Their Legal Fictions: Attributing Identity And Responsibility To Artificial Entities, Melissa (M.J.) Durkee

Scholarship@WashULaw

This volume offers a new point of entry into questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution, the volume considers an array of questions about artificial entities that …

Corporations As International Economic Law Actors, Barnali Choudhury

All Papers

Actors in international law are presumed to be states. Yet in the international economic law arena, the corporation is one of the most prominent non-state actors. Indeed, in some instances, the corporation may even be more influential than the state in some arenas of international economic law. This short piece examines three instances of this influence. First, it looks at the role of corporations in law-making; second, it examines corporations’ role in monitoring and compliance; and, third, it explores corporations’ legal personality in international economic law. Finding corporations’ immense influence on law-making and monitoring and compliance, combined with a robust …

Book Review On From The Great Recession To The Covid-19 Pandemic By Professor Jerry W. Markham, Ronald Filler

FIU Law Review

A review of Professor Jerry Markham's book "From the Great Recession to the COVID-19 Pandemic."

Rational Investing Or Speculative Fever?: Spacs, Robinhood, And Digital Assets—Securities Markets Or Casinos?, Thomas Lee Hazen

FIU Law Review

This article focuses a recurring theme – speculation in the financial markets. The 2010-2020 decade set the stage for a new round of speculative activity starting in 2021. In the article that follows I reflect on a new wave of speculation and three current examples of speculative activity. The article concludes that regulators should be cautious about over-regulation of SPACs and gamified trading. The article also supports the regulation of digital assets (crypto currencies and NFTs) as securities.

Celebrating Markham’S Approach To Financial History: Getting At The Macro One Deal At A Time, José Gabilondo

FIU Law Review

Professor Markham's financial history does an excellent job of reviewing and analyzing financial history for the period from the Great Recession to the COVID pandemic. His granular approach to financial history conveys macro-trends by focusing on the most defining transactions and episodes from this period.

Book Review From The Great Recession To The Covid-19 Pandemic A Financial History Of The United States, Rigers Gjyshi

FIU Law Review

A review of Professor Jerry Markham's book "From the Great Recession to the COVID-19 Pandemic."

Asking The Jewish Question: The Import Of Jewish History To Corporate Law, Dalia T. Mitchell

Lewis & Clark Law Review

This paper brings Jewish American history to bear upon the analysis of three major milestones in the development of corporate law’s fiduciary duties jurisprudence: Meinhard v. Salmon (N.Y. 1928), Bayer v. Beran (N.Y. 1944), and Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (Del. 1986). Bringing to the fore the background of the Jewish litigants and the Jewish lawyers who represented them, I use Meinhard, Bayer, and Revlon to explore changing cultural attitudes toward Jewish Americans’ participation in corporate America (as investors, managers, or their legal representatives). I argue that these cases demonstrate how our ideas about the appropriate purpose …

Digital Bank Holidays, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be responsive to. We may be expecting too much of deposit insurance, and so it is worth considering other tools that might be useful in responding to future bank runs and broader banking panics. One such tool is the “bank holiday,” last deployed in the United …

Growing Tensions: Consumer Privacy And Corporate Disclosures, Megan Wischmeier Shaner

Faculty Articles

Data privacy and data security have become key issues for legislators, regulators, and individual citizens. Roughly two-thirds of Americans believe their data is being regularly tracked, monitored, and collected by companies and the government. A majority of U.S. adults also believe their data is less secure today than five years ago, expressing concerns that they have little control over how their personal information is being used and that the entities who control their data are not responsible stewards. In the absence of comprehensive federal regulation, a continuous stream of privacy statutes have been proposed at the state level. Beginning with …

Esg And Securities Litigation: A Basic Contradiction, Aneil Kovvali

Articles by Maurer Faculty

Companies are increasingly expected to publicly report on not only their traditional financial results, but also environmental, social, and governance (“ESG”) issues. Trillions of dollars are being invested with ESG considerations in mind, and boosters urge that ESG investing can address environmental and social impacts that are normally ignored by managers focused on share prices. This raises the question of how companies should be punished if they lie about ESG matters. How should the traditional elements of securities fraud map onto the novel ESG context? Commentators have vigorously debated ESG’s relationship to the materiality element of securities fraud. But the …

Faculty Editor's Forward, Jayanth K. Krishnan

Articles by Maurer Faculty

Forward for Issue #1 Volume 32 for the Indiana Journal of Global Legal Studies

Reflections On Corporate Governance At Work, Margaret Blair, Matthew Bodie, June Carbone, Scott Dewey, George S. Georgiev, Grant Hayden, Claire Hill, Brett Mcdonnell, Sanjukta Paul, Silvie Rohr, Natalya Shnitser, Aaron Sojourner, Alvin Velazquez

Articles

No abstract provided.

Leveraging Information Forcing In Good Faith, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

Leveraging Information Forcing in Good Faith, a chapter in Research Handbook on Law and Time, argues that the information-forcing-substance theory has a significant role to play both in how courts decide duty of good faith and oversight matters and in how active and engaged directors can add value in the boardroom. As explored in the chapter, by deploying the theory in corporate-law matters, the courts can reveal the information gaps between officers and directors and create pressure for better processes and discourse within the corporation. In turn, this can impact both the way in which fiduciaries interact with …