American Business Law Journal最新文献

Esports is now a multibillion-dollar industry that has quickly become one of the most discussed segments of the entertainment industry. There has been a rush to mention esports alongside other more traditional sports like baseball, basketball, football, and hockey, but the comparison may not be apt. Esports leagues are fundamentally different from traditional sports leagues because the competitive games that make up esports are the intellectual property of the game makers. This unique structure results in individualized relationships between the game makers, esports producers, the teams, and the competitors. This article is among the first to examine the legal status of esports competitors. In doing so, we discuss the employment conditions within esports that make them unique. The industry is poised to face significant labor-related challenges in the near future, so the article also analyzes the labor issues esports competitors and leagues face, and the importance for stakeholders to pay attention to the legal status and working conditions of the competitors.

Civil law is enforced primarily via private litigation. One characteristic of private enforcement is that litigation levels tend to cycle between periods of boom and bust. This article builds a theory for explaining this fluctuation, proposing that plaintiffs’ attorneys can be understood as economic migrants. Just as workers cross borders to find jobs, lawyers “move” across case types and jurisdictions to find profitable claims, and case filing numbers increase as a result. Using the recent wage and hour litigation boom as a case study, this article paints an empirical picture of attorney migration and its influence on case filing numbers.

Employment disputes are increasingly centered on the conflicting moral and religious values of corporations, their employees, and their customers. These conflicts are especially challenging when they involve the rights of lesbian, gay, bisexual, transsexual, and queer/questioning (LGBTQ) employees and customers contraposed against the religious beliefs of corporations and their owners. When religious values compete with civil rights in the employment context, a complex web of legal protections renders the outcome unclear. Conflicts over these competing rights can involve a number of broad, thorny legal disputes, including those concerning the First Amendment and Title VII, fights between secular and religious beliefs, and competition between religious beliefs and equal protection rights under the Fourteenth Amendment. This article illustrates the reasons for this growing tension between the beliefs of business owners and the beliefs of their employees. It explores recent conflicts between religion and rights in the workplace particularly in the context of LGBTQ rights, the ways in which state-level regulation complicates these conflicts, and the potential impact of recent cases addressing these concerns. It also identifies examples of potential specific conflicts in the context of LGBTQ rights and suggests the principles that should guide the resolution of these cases, offering a framework for assessing the hierarchy that a court may use in resolving cases in which values conflict with rights in the workplace. Finally, it addresses some of the troubling implications that arise as a result of the resolution of the potential specific conflicts.

The Supreme Court instructs that the most important consideration in analyzing fair use is the effect on the market for the original. Employing music sales data, this article presents evidence of digital sampling's effect on the sales of sampled songs. Our results indicate that a reassessment of fair use in the area of music sampling is needed since sales of sampled songs increased after being repurposed within new songs. These results are robust and highly statistically significant. Findings of this nature favor a judicial determination that sampling constitutes a fair use, even when considering the influence that a new work has on extant licensing markets for sample clearance. This article argues that the current sample–licensing market is a product of aberrant antisampling case law arising from a lack of relevant empirical data and nonutilitarian judicial opinions. As set forth herein, the goal of encouraging creative activity without hindering copyright owners’ capacity to financially gain from their work is served by implementing a limited presumption of fair use for sampling. The findings are further applicable outside of the fair use analysis, as the study is important in the private law when viewed through a law and strategy lens. Forward thinking music firms should reframe their approach by encouraging sampling of their works to secure cost-free advertising and achieve a competitive advantage.

As tensions between investors’ rights and sovereign power escalate, investor–state dispute settlement (ISDS) has become a focal point of backlash and controversy. As a result, ISDS now embodies two opposing currents in international law: (1) the erosion of sovereignty that accompanied economic globalization, trade frameworks, and investment treaties following the Second World War and (2) more recently, reassertions of sovereignty prompted by recent backlashes against the global economic order. This article measures and evaluates outcomes of the ISDS system for sovereign participants. Using the best available data, this article contributes more detailed assessments of sovereign winners (home states of claimants) and sovereign losers (respondent states) in the ISDS system. This article also considers the distribution and the proportional impact of outcomes for sovereign participants, both of which are fundamental in the legitimacy debates surrounding the ISDS system.

This article examines the potential for transparency programs to improve corporations’ human rights performance. The primary focus is on “general” transparency programs such as the inclusion of human rights issues in sustainability reports. Regulators increasingly rely on such programs, one of which is the EU Directive on the Disclosure of Non-financial Information, which many commentators view as a model for legislation in other countries and for a business and human rights treaty. This article identifies several problems with this approach. The human rights metrics used in current sustainability reporting standards often lack validity or are based upon data that is most easily collected, rather than most important. Moreover, the empirical evidence on sustainability reporting shows continued problems of selective disclosure, impression management, incomparable disclosures, and the use of disclosure as an end in itself (as opposed to a process that leads to organizational change). To move forward, regulators should shift focus to a model grounded in regulatory pluralism. Under this approach, regulators would combine a selection of targeted transparency mechanisms to create a more complete regulatory system that corrects for one disclosure mechanism's weaknesses by including others that have complementary strengths.

Since mid-twentieth century, courts and state legislatures have recognized that legitimate petitioning and free speech activities should not be subject to civil litigation. Laws meant to regulate or proscribe one form of activity should not be abused to curb First Amendment activities. Over the past thirty years a number of states have enacted legislation to protect individuals and organizations active in social and environmental causes, as well as local development issues, from groundless lawsuits, known as Strategic Lawsuits Against Public Participation (SLAPPs), brought to silence them. But these anti-SLAPP statutes are of little use to an organization that must spend years in litigation fighting accusations that its protected activities constitute criminal predicate acts under the Racketeer Influenced and Corrupt Organizations Act (RICO). This article advocates a federal statute that can protect individuals and organizations that speak out from meritless lawsuits grounded in federal law—particularly RICO. As discussed in this article, there are procedural and constitutional challenges to such a law. However, those obstacles can and must be overcome to prevent a law aimed at criminal racketeering from being used to stifle First Amendment rights.

Whistleblowers are severely disadvantaged when they apply for jobs. Many whistleblowers experience retaliation twofold—first, at their place of employment after they initially blow the whistle, and, second, on the job market for any subsequent employment. This negative trail follows whistleblowers, labeling them as disloyal, suspicious, and, ultimately, not ideal employees, and, thus, unable to find work. Current federal law largely ignores this problem, and protections for job applicants with whistleblowing histories have been severely lacking in some of the most prominent whistleblowing statutes. This article is the first to examine this glaring lack of legal protection as it pertains specifically to whistleblower job applicants by undertaking a comparative analysis of the retaliation protections available in a number of federal statutes and suggesting statutory reform based on that analysis. Specifically, this article draws comparisons between civil rights statutes, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, which each provide expansive protections for job applicants, and the most prominent current federal whistleblowing statutes, the Sarbanes-Oxley Act, the Dodd-Frank Act, and the False Claims Act, which lack these protections. We conclude by recommending amendments to these federal whistleblowing statutes, arguing for specific retaliation protections and redress for whistleblowers who are denied a chance to work again because of their past revelations.

Overt gender discrimination in the workplace is now less frequent since the passage of the Civil Rights Act; however, subconscious workplace gender biases persist. These subtle biases continue to contribute to gender inequality in the employment context, hindering women's ability to reach the top ranks of corporate leadership and their ability to achieve pay equity. To combat this inequity, in this article, we advance several suggestions. First, we urge states to pass legislation requiring paycheck fairness and urge firms to institute policies of salary transparency. Next, when there is a lack of women in the highest corporate ranks of the company, a presumption of discrimination should replace the current legal framework in the courts for disparate treatment analysis in Title VII cases of gender discrimination. We further suggest that firms would do well to improve mentoring and networking programs for women to help even the playing field and call on companies to offer implicit bias training for men. Finally, we urge firms to improve the environment for women in the workplace by adopting and sincerely promoting family-friendly policies. Not only would these recommendations be just, they would also likely increase productivity in the corporate world and help resolve the paradox surrounding the paucity of women in top leadership positions.

Denials of relief for even clear violations of statutory protections have left some injured benefit plan participants and beneficiaries without compensation and failed to provide appropriate incentives for compliance. Many of the remedial failures can be traced to a 1993 U.S. Supreme Court case, which narrowly construed the relevant statute's provision for appropriate equitable relief. I argue that since 2002, the Supreme Court slowly and subtly has been shifting its approach to equitable relief in benefits cases. Because the Court's development of the remedial jurisprudence has been subtle and incremental, neither lower courts nor scholars have fully recognized the shift. I rely on theoretical approaches to equity, scholarly commentary across fields of law, and the Supreme Court's jurisprudence to consider the definition of appropriate equitable relief. I then articulate a detailed analysis for use in determining when appropriate equable relief should be available in benefits cases. Applying the analysis to three important categories of benefits cases shows that, properly interpreted, the Employee Retirement Income Act's provision for appropriate equitable relief is neither so unconstrained as to threaten the viability of benefit plans nor so pinched as to deny remedies for rights granted by the statute.