Law and Economics Commons^™

Fifa's One Association - One Vote Rule: Does Democratic Governance Ensure Its "Corporate" Integrity?, Ilias Bantekas

American University Business Law Review

This article suggests that in the absence of any requirement in favor of democratic governance of corporations and non-profit entities in national law, as well as in light of a general practice of bifurcated systems (oscillating between de jure equality and power-based governance) in respect of intergovernmental organizations, a nondemocratic governance structure in international sports federations would not deviate from the general rule. What is clearly at stake in complex organizations is effectiveness in achieving the aims of the organization, irrespective if all members are satisfied. The deceptively democratic nature of sporting federations such as FIFA is very much the …

The Original Instagram: Whose Property Is It?, Sue M. Altmeyer

American University Business Law Review

When a worker creates a personal social media account and then uses it to promote their employer, courts differ as to whether subsequent use by the employer can operate as an implied transfer of the account when the employment relationship ends. Allowing an implied transfer flies in the face of traditional contract and property law principles and results in workers unknowingly giving up their right to a valuable asset they created. The better rule in determining ownership of a social media account is to first determine who owned the account at the time of original creation and then determine whether …

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 …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Corporate Governance Through Social Media, Christina M. Sautter

Faculty Journal Articles and Book Chapters

Retail investors and other stakeholders are vigorously and loudly taking positions regarding corporate governance issues on social media. They are gathering on social media to discuss which stocks to invest in and to debate and collectively act on corporate governance-related matters. Propelled by new technologies and social media, retail investor engagement has shifted away from traditional venues like corporate voting and shareholder proposals. Retail investors have opened tens of millions of new brokerage accounts since 2020. These new retail investors, primarily Millennials and GenZ’ers, are adept at using technology and naturally gather and obtain information on social media. A co-author …

Rowling Record 2023-2024, The Robert B. Rowling Center For Business Law & Leadership

Rowling Record

No abstract provided.

Institutional Investors As Climate Activists: Curb Your Enthusiasm, Markus Lieberknecht

American University Business Law Review

Institutional investors control a sizable portion of all votes in major public corporations. In contrast to their traditional deference to management, some institutional investors have begun to lobby portfolio companies for reductions in greenhouse gas (“GHG”) emissions because even broadly diversified portfolios are vulnerable to the systemic risks associated with climate change. In theory, this logic could align the interests of diversified investors and those of society at large, resulting in welfare-enhancing climate activism. However, because of the chasm between the portfolio-level goal of GHG reduction and the company-level goal of value maximization, climate activism by institutional investors is bound …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Antitrust, Amazon, And Algorithmic Auditing, Jens Frankenreiter, Abhisek Dash, Abhijnan Chakraborty, Saptarshi Ghosh, Animesh Mukherjee, Stefan Bechtold, Krishna P. Gummadi

Scholarship@WashULaw

In digital markets, antitrust law and special regulations aim to ensure that markets remain competitive despite the dominating role that digital platforms play today in everyone's life. Unlike traditional markets, market participant behavior is easily observable in these markets. We present a series of empirical investigations into the extent to which Amazon engages in practices that are typically described as self-preferencing. We discuss how the computer science tools used in this paper can be used in a regulatory environment that is based on algorithmic auditing and requires regulating digital markets at scale.

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

The Vitruvian Shareholder, Sergio Alberto Gramitto Ricci

Faculty Works

The proportions of Leonardo's Vitruvian Man allow the human figure to fit a circle and a square, which in Renaissance iconography represent respectively the secular and divine dimensions. Good canons allow for a proportionate and simultaneous coexistence of the two natures of humankind. Human shareholders have two natures, too: one as investors and one as human beings. Similar to the Vitruvian Man, a shareholder with good proportions fits a metaphorical circle and a metaphorical square: the former represents the human dimension, and the latter represents the investor. I dub retail investors who proportionately balance their interests as human beings who …

Fiscal Equity: The Non-Profit Model Of Corporate Ownership, Eric A. San Juan

American University Business Law Review

In an era of excessive executive compensation, the non-profit corporation serves as an exemplary alternative. Voluntarily, some brand-name manufacturers operate under existing law that permits non-profit ownership. Virtually all corporations could become non-profits under a legislative reform potentially more effective than past redistributive measures. Twentieth-century progressive taxation has waned, while initiatives to endow impoverished children with personal accounts have not expanded beyond pilot programs. Instead, economic inequality widens with global industrialization. Traditionally, deprivation led to the call for the abolition of private ownership of the means of production, yet this proved impracticable under revolutionary regimes. A review of the evolution …

Communication Decency Act And The Intellectual Property Exception, Casey Windsor

American University Business Law Review

As the internet proliferated in the 1990s, Congress became concerned with courts impeding the advancement of the internet and the distribution of obscene materials. Congress passed Section 230 of the Communication Decency Act (CDA), which was part of the Telecommunications Act of 1996. Section 230(c), known as the “Good Samaritan” provision, gave broad immunity to interactive computer services providers (ISPs) who monitor third-party content posted to their website.3 Section 230 created the regulatory foundation for modern day ISPs, including social media websites like Facebook.

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 …

Paying For Performance? Attorneys' Fees In Securities Fraud Class Actions, Jessica M. Erickson

Law Faculty Publications

This Article studies whether plaintiffs’ lawyers matter in securities class actions. We use inverse propensity score weighting (IPW) to compare the results in cases led by top-tier firms against those brought by lower-tier firms. This technique addresses case selection effects by using all of the cases led by a top-tier firm and then weighting the cases led by lower-tier firms based on how similar these cases are to the cases led by top-tier firms. We do find that top-tier lawyers obtain better outcomes for shareholders in a subset of securities class actions, specifically the cases against the larger (although not …

Whom Is Corporate Esg Integration For?, Ryan Brennan

Brooklyn Journal of International Law

Notions of corporate social responsibility (CSR) and more recently, environmental, social, and governance (ESG) have found their way into the boardrooms of the world’s largest corporations. The prominence of this trend has revived the timeless debate over the true function of for-profit business. Traditional theory calls for a corporation to maximize shareholder’s profits—a view known as “shareholder primacy.” A competing contemporary school of thought finds that corporate purpose naturally extends beyond generating return on the investment of a given shareholder to reflect social objectives and the many dependent constituents of a business. As it stands, US corporate law tracks the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Ambiguity And Exceptions: Dissecting Cftc V. Monex Credit Co. And The Commodity Exchange Act To Explain Actual Delivery, William Knotts

MC Law Review

“Leveraged trades” are transactions in which an investor borrows the capital to purchase or sell a commodity using the commodity itself as collateral. These transactions are vital to the health of commodities markets as they relate directly to market participation and liquidity, both essential components. A recent Ninth Circuit decision threatens these types of valuable transactions by adopting a narrow interpretation of a key exemption from the applicability of Commodity Exchange Act regulations. This Article will argue a broader interpretation is more consistent with the purpose behind the Commodity Exchange Act, recent Commodity Futures Trading Commission interpretations, and will better …

Place Your Bets: The Legal Integration Of Sports Betting With Cryptocurrency, Andrew Topps

UNH Sports Law Review

No abstract provided.