Dispute Resolution and Arbitration Commons^™

Caroline E. Foster, Global Regulatory Standards In Environmental And Health Disputes: Regulatory Coherence, Due Regard, And Due Diligence, Henry S. Gao

Research Collection Yong Pung How School Of Law

With ‘The Rise of the Regulatory State’ 1 at the beginning of the twentieth century, regulation replaced litigation as the main method of social control in the United States. Over the past few decades, more and more countries around the world started to follow the example of the United States, which led to the global expansion of the regulatory state. This in turn spurred more international disputes due to divergences in the respective regulatory standards. Theoretically speaking, global regulation might be the best solution. However, so far this not happened, partly due to the paralysis of the law-making functions of …

Applicable Law And The Civil And Common Law Divide, George A. Bermann

Faculty Scholarship

In examining the relevance of civil law and common law synergies in international arbitration, we often dwell on aspects of arbitral practice and procedure. This should occasion no surprise. Our attention turns to arbitral practice and procedure, for that is what we do, as arbitrator and counsel, and on a daily basis. Leaving aside investor-State arbitration, in which substantive public international law looms large, international arbitration is very much a procedural endeavor.

But it should not be forgotten that the differences between the civil law and the common law manifest themselves not only, and not even primarily, in practice and …

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A.E. Pottow

Cardozo Law Review

In the world of cross-border corporate insolvency, those in the know are familiar with the increasingly popular scheme of arrangement, the British quasi-reorganization procedure that allows a company to restructure some, but not all, of its debt. The typical scheme effects a corporate balance sheet reshuffling by supermajoritarian approval (and judicial “sanction”) but often leaves other debt, such as the trade, untouched. A key conceptual component of the scheme mechanism is its intentional modularity, called by some its “selectivity.” It does not require a comprehensive reckoning of all claims against a given debtor, only some. The scheme has proved popular—so …

Backdating #Metoo, Jessica K. Fink

Cardozo Law Review

The #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.

While society has undergone great shifts in its understanding of and response to …

Law Students Can Use Portfolios To Plan Their Practice Systems, John Lande

Faculty Blogs

This post describes how law schools can help students plan for successful careers by using Real Practice System self-assessments to guide them in developing individualized portfolios. Portfolios identify students’ learning objectives and experiences designed to achieve them. Portfolios may include a variety of elements such as writing samples, video recordings, grades, faculty evaluations, clinical course journals, and extracurricular experiences.

Helping Law Students Define And Pursue Success, John Lande

Faculty Blogs

This post collects prior posts about how to help law students define and pursue professional success.

Increasing Housing Stability Through State-Funded Community Mediation Delivered By The Massachusetts Housing Mediation Program (Hmp) Fy2023 Evaluation Report, Madhawa Palihapitiya, Karina Zeferino

Massachusetts Office of Public Collaboration Publications

The Massachusetts Housing Mediation Program (HMP) is a comprehensive statewide program that provides free housing mediation services as a tool to increase housing stability with the intention of preventing homelessness created by landlord-tenant disputes. It is administered by the Massachusetts Office of Public Collaboration (MOPC) at the University of Massachusetts Boston and deploys the community mediation system infrastructure with 11 Community Mediation Centers (Centers) participating and serving all 14 counties of the Commonwealth to provide free conflict resolution services for tenants and landlords/property managers with housing disputes at any stage, from the earliest point a problem occurs, up to, and …

Real Lawyering Practice Systems, John Lande

Faculty Blogs

Most of the pieces in the RPS Project have focused on mediation. The theory is not limited to mediation, and this post applies it to lawyering.

All Things Adr, Kukin Program For Conflict Resolution

2023–2024 Flyers

No abstract provided.

Technology In Real Practice Systems, John Lande

Faculty Blogs

This post uses the RPS mediation checklists to illustrate practitioners’ great reliance on technology.

The Acquisition Of Twitter: The Legal Interplay Between Elon Musk, Shareholders, Employees, And The Government, Florence Shu-Blankson

University of Miami Business Law Review

This article examines the acquisition process of Twitter by Elon Musk. It will analyze the legal validity of Musk’s initial claims for rescinding his offer, as well as Twitter’s defense arguments. It will consider questions such as: Did Twitter cause a material adverse effect to its operations that would be a basis for Musk to avoid the deal? Did Musk run afoul of any regulatory requirements under the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) regulations? What impact did the ultimate sale of Twitter have on other stakeholders, such as corporate executives and non-executives, shareholders, employees. The …

Introduction To The Symposium, Julian Arato, Jonathan Bonnitcha, Mavluda Sattorva

Other Publications

This symposium explores the interrelation and juxtaposition of private and public registers in the logics and practices of private international law, public international law, and foreign relations law. It is inspired by the scholarly work of a brilliant scholar and much-missed friend: Karen Knop, Professor and Cecil A. Wright Chair at the University of Toronto Faculty of Law (1960–2022).

Belt And Road Initiative: Legal Mechanism To Recover Stolen Assets, Veltrice Tan

Singapore International Dispute Resolution Academy

Purpose: This paper aims to determine the types of legal mechanisms that authorities can use to recover stolen assets for and from China. Design/methodology/approach: Newspaper articles and books are examined as are relevant reports by various regulatory authorities and academic institutions. Findings: The effectiveness of legal mechanisms in the recovery of stolen assets may be affected by issues such as the difficulties in tracing illicit funds, the ambiguous nature of “value” as well as the rise in technology. Research limitations/implications: There are limited data available in relation to the prevalence of corrupt officials along the Belt and Road Initiative and …

Researching Adr In Michigan And Beyond, Shay Elbaum

Law Librarian Scholarship

The June Michigan Bar Journal was full of valuable analysis of alternative dispute resolutions issues, but you don’t need to wait for the next ADR special issue for more. In this column, I highlight some additional Michigan-focused resources followed by a selection of resources that practitioners and scholars in any jurisdiction may find useful.

The Belt And Road Initiative: Conflict Of Laws And Dispute Resolution, Veltrice Tan

Singapore International Dispute Resolution Academy

Purpose: This paper aims to determine the adaptability of China’s legal system in recognizing and enforcing foreign judgements in China. Design/methodology/approach: Academic articles, case law and books are examined as are relevant reports by various regulatory authorities and organizations. Findings: Historically, Chinese courts have strictly adhered to “de facto reciprocity”, which made it difficult for foreign judgements to be recognized and enforced in China. Fortunately, Chinese courts have since abandoned their rigid adherence to de facto reciprocity, and have instead, used flexible tests of reciprocity such as de jure reciprocity, reciprocal commitment and reciprocal understand/consensus. Accordingly, this would facilitate the …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

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 …

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Structure Of Corporate Law Revolutions, William Savitt

Seattle University Law Review

Since, call it 1970, corporate law has operated under a dominant conception of governance that identifies profit-maximization for stockholder benefit as the purpose of the corporation. Milton Friedman’s essay The Social Responsibility of Business is to Increase Its Profits, published in September of that year, provides a handy, if admittedly imprecise, marker for the coronation of the shareholder-primacy paradigm. In the decades that followed, corporate law scholars pursued an ever-narrowing research agenda with the purpose and effect of confirming the shareholder-primacy paradigm. Corporate jurisprudence followed a similar path, slowly at first and later accelerating, to discover in the precedents and …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

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 …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …