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Access To Justice In The United Nations Human Rights Committee, Vera Shikhelman 2018 NYU School of Law

Access To Justice In The United Nations Human Rights Committee, Vera Shikhelman

Michigan Journal of International Law

This Article has two main purposes. The first is to describe and evaluate empirically the right of individuals to access the HRC under the OP in light of the special goals of this procedure as perceived by the different stakeholders. The second is to recommend ways to improve individuals’ access to the HRC and thereby to international justice in general. In order to address the first question, the Article uses a mixed-methods approach—a combination of quantitative and qualitative research methods.


Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin 2018 Brooklyn Law School

Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin

Brooklyn Journal of Corporate, Financial & Commercial Law

Bankruptcy is a market for corporate control. Current bankruptcy practice offers two alternative mechanisms for effectuating changes in control of a firm: (1) a pre-plan all-asset sale under section 363(b) of the Bankruptcy Code; or (2) an asset sale or recapitalization pursuant to a plan of reorganization under section 1129 of the Code. Pre-plan sales under section 363(b) are fast, but lack the procedural protections associated with a restructuring or sale pursuant to a plan. Plan confirmation can be costly and uncertain, however. Restructuring support agreements (“RSAs”)—contractual agreements to support a future restructuring that has certain agreed-upon ...


The Equifax Data Breach And The Resulting Legal Recourse, Caitlin Kenny 2018 Brooklyn Law School

The Equifax Data Breach And The Resulting Legal Recourse, Caitlin Kenny

Brooklyn Journal of Corporate, Financial & Commercial Law

What happens when one’s sensitive information falls into the wrong hands? With the twenty-first century’s advancement of technology comes the increasing problem of data breaches wherein sensitive information is exposed. On September 7, 2017, Equifax, one of three major United States credit reporting agencies announced one of the largest data breaches in the history of the United States. The data breach affected approximately 145 million consumers and subsequently a wave of consumer class actions followed. This Note clarifies why class action lawsuits and arbitration are not viable legal remedies for massive data breaches where entities like credit reporting ...


Corporate Governance And Bankruptcy, Daniel J.H. Greenwood 2018 Brooklyn Law School

Corporate Governance And Bankruptcy, Daniel J.H. Greenwood

Brooklyn Journal of Corporate, Financial & Commercial Law

Ordinary corporate law invests enormous authority in corporate leaders, largely without accountability either to those they govern or to the judiciary, in defiance of much of what we know about effective governance procedure. Instead, we rely on the markets in which the corporation participates as the primary check on incumbent officials. Regardless of whether relying on markets is sufficient in the ordinary course, corporate insolvency is the markets’ verdict that incumbent management has failed. Accordingly, in bankruptcy and insolvency more generally, the law ought to abandon its ordinary deference to the corporate powers that be and instead impose standard good ...


Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben 2018 Brooklyn Law School

Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

Outside of bankruptcy, a board of directors’ decision to take control rights away from existing shareholders and grant them to another is subject to heightened fiduciary duties. As the sale of control represents a kind of end game, shareholders have one last chance to realize the full value for their investment. In such a context, their interests warrant special protection. A similar sale of control can happen in a chapter 11 procedure when a bankruptcy plan revamps the capital structure of the firm. In such a restructuring of the firm, control rights can be newly created, redefined and redistributed to ...


Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu 2018 Brooklyn Law School

Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal securities law seeks to ensure the quality and quantity of information that corporations make publicly available. Informational asymmetries associated with companies in financial distress, but not in bankruptcy, have received little attention. This Article explores some important asymmetries in this context that are curious in their origin, nature, and impact. The asymmetries are especially curious because of the impact of a world with credit default swaps (CDS) and CDS-driven debt “decoupling.” The Article explores two categories of asymmetries. The first relates to information on the company itself. Here, the Article suggests there is fresh evidence for the belief that ...


The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger 2018 Brooklyn Law School

The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.


Transparency In Corporate Groups, Jay Lawrence Westbrook 2018 Brooklyn Law School

Transparency In Corporate Groups, Jay Lawrence Westbrook

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article addresses a remarkable blind spot in American law: the failure to apply the well-established principles of secured credit to prevent inefficiency, confusion, and fraud in the manipulation of the webs of subsidiaries within corporate groups. In particular, “asset partitioning” has been a fashionable subject in which the central problem of non-transparency has been often mentioned but little addressed. This Article offers a concept for a new system of corporate disclosure for the benefit of creditors and other stakeholders. It would require disclosure of corporate structures and allocations of assets among affiliates to the extent the affiliates are to ...


Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow 2018 Brooklyn Law School

Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow

Brooklyn Journal of Corporate, Financial & Commercial Law

In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee’s administration of a debtor’s estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of “bankruptcy M&A.” My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is ...


It's Tax Not Trade (Stupid), Edward J. McCaffery 2018 University of Southern California;California Institute of Tecnology

It's Tax Not Trade (Stupid), Edward J. Mccaffery

Edward J McCaffery

Globalization, trade and other free market policies increase wealth. But the gains from trade are not being evenly spread among all citizens. People and politicians rage against foreigners. But it is the United States tax system, not trade, that ought to change, and wealthy Americans, not workers world-wide, who should be sharing the wealth. A nd it is the form of tax, not just its rate structure, that must reform, so that capital at last bears a meaningful share of the burden.


Legal Optimism: Restoring Trust In The Criminal Justice System Through Procedural Justice, Positive Psychology And Just Culture Event Reviews, John Hollway 2018 University of Pennsylvania

Legal Optimism: Restoring Trust In The Criminal Justice System Through Procedural Justice, Positive Psychology And Just Culture Event Reviews, John Hollway

Master of Applied Positive Psychology (MAPP) Capstone Projects

Like any complex, dynamic system, the American criminal justice system makes mistakes. Unfortunately, criminal justice organizations lack a systematic process enabling them to learn from cases of error. Ignoring or minimizing errors erodes organizational legitimacy and contributes to a downward spiral of legal cynicism that increases violent crime. This paper describes the application of positive psychology and procedural justice to restore legal optimism – confidence and trust that the criminal justice system will respond in a just fashion to criminal activity – through Just Culture Event Reviews (JCERs), non-blaming multi-stakeholder reviews of cases where the system has erred. JCERs identify contributing factors ...


Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski 2018 Brooklyn Law School

Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski

Brooklyn Journal of International Law

As the world has transitioned from national; isolated economies with localized issues into a globalized and interconnected economy with cross-border disputes; the law has struggled to keep up. Recent trade negotiations have highlighted the difficulty states face in promoting trade; while also creating a fair; accessible; and equitable forum for producers and consumers with nationalities touching every area of the globe. For several decades; Investor-State Dispute Settlement (ISDS) has been in place to address claims brought by foreign investors against the host states. External improvements have helped support foreign direct investment and the ISDS model of dispute resolution; such as ...


Passing The Baton: The Effect Of The International Olympic Committee's Weak Anti-Doping Laws In Dealing With The 2016 Russian Olympic Team, Saroja Cuffey 2018 Brooklyn Law School

Passing The Baton: The Effect Of The International Olympic Committee's Weak Anti-Doping Laws In Dealing With The 2016 Russian Olympic Team, Saroja Cuffey

Brooklyn Journal of International Law

Following the investigation of a Russian state-sponsored doping ploy prior to the Olympic Games in Rio 2016; the International Olympic Committee (IOC) decided against a blanket ban of the Russian Olympic team. Instead; it allowed athletes’ individual international federations to decide whether Russian athletes could compete. In following the various anti-doping laws in place; the IOC sought to protect and give justice to clean athletes around the world. This Note argues that they did not achieve this result; due to the anti-doping laws in place and the actors applying these laws. It suggests that there should be a universal anti-doping ...


Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri 2018 Georgetown University Law Center

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests ...


China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow 2018 Ohio State University Moritz College of Law

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not ...


International Courts Improve Public Deliberation, Shai Dothan 2018 University of Copenhagen

International Courts Improve Public Deliberation, Shai Dothan

Michigan Journal of International Law

The paper starts with the effects of international courts on the broader public and narrows down to their influence on a small elite of lawyers. Part I suggests that international courts captivate the public imagination, allowing citizens to articulate their rights. Part II demonstrates how governments, parliaments, and national courts around the world interact with international courts in ways that improve public deliberation. Part III studies the global elite of lawyers that work in conjunction with international courts to shape policy. Part IV concludes by arguing that the dialogue fostered between international courts and democratic bodies does, in fact, lead ...


Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey 2018 Alexander Blewett III School of Law at the University of Montana

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution actions ...


The Jus Ad Bellum'S Regulatory Form, Monica Hakimi 2018 University of Michigan Law School

The Jus Ad Bellum'S Regulatory Form, Monica Hakimi

Articles

This article argues that a form of legal regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions sometimes inflect or go beyond what the jus ad bellum permits through its general standards—that is, under the prohibition of cross-border force and small handful of exceptions. Recognizing that this form of regulation is both part of the law and different in kind from regulation through the general standards should change how we think about the jus ad bellum.


Limited Liability And The Known Unknown, Michael Simkovic 2018 USC Gould School of Law

Limited Liability And The Known Unknown, Michael Simkovic

University of Southern California Legal Studies Working Paper Series

Limited liability is a double-edged sword. On the one hand, limited liability may help overcome investors’ risk aversion and facilitate capital formation and economic growth. On the other hand, limited liability is widely believed to contribute to excessive risk taking and externalization of losses to the public. The externalization problem can be mitigated imperfectly through existing mechanisms such as regulation, mandatory insurance, and minimum capital requirements. These mechanisms could be more effective if information asymmetries between industry and policymakers could be reduced. Private businesses will typically have better information about industry-specific risks than policymakers.

A charge for limited liability entities ...


The Challenges Of Conscience In A World Of Compromise, Amy J. Sepinwall 2018 University of Pennsylvania

The Challenges Of Conscience In A World Of Compromise, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

The process of crafting and passing legislation might be thought to be the locus of compromise par excellence.1 Yet, where the law that results impinges upon moral or religious belief or practice, the issue of compromise arises anew, in both senses of the word: Individuals who oppose the law on moral or religious grounds believe that their political obedeience will compromise them in a fundamental way. Their plea for an exemption from the objectionable legal requirement is, then, a bid for further compromise.2 Compromise in the first sense concerns an undercutting of the self, while compromise in the ...


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