Volume 2022, No. 6

Articles

PDF link Enabling ESG Accountability: Focusing on the Corporate Enterprise

by Rachel Brewster

This Article examines how a governance aspect of ESG—corporate enterprise law—creates social and environmental concerns through three lenses: (1) limited liability, (2) international tax, and (3) environmental law. The major contributions of this Article are to identify how the internal form of the corporation itself creates ESG concerns and to sketch out how current law could be adapted to limit those harms. Using the Foreign Corrupt Practices Act as a model, this Article explains how creating an obligation on a parent company to supervise their subsidiaries could provide for greater global corporate responsibility while minimizing corporations’ competitiveness concerns. Rather than harming corporate enterprises, such governance reforms can enable corporations to pursue ESG goals without suffering competitive losses.

PDF link Personalizing Prices to Redistribute Wealth in Antitrust and Public Utility Rate Regulation

by Ramsi A. Woodcock

The information age is enabling firms with even small amounts of market power to personalize the prices they charge to each consumer in the market. Left to their own devices, firms will use this new power to increase profits by charging prices personalized to the maximum that each consumer is willing to pay. But government can also use the new power to personalize prices to equalize wealth—by insisting that firms personalize high prices to the rich and low prices to the poor—and most of the legal rules needed to do so are already in place. Both the antitrust laws and state and federal rate regulatory regimes already require enforcers to take the distribution of wealth into account in condemning anticompetitive practices or approving prices. Before the information age made personalized pricing possible, enforcers hesitated aggressively to use their powers to achieve wealth-equalizing prices because they worried that doing so would harm efficiency. But personalized prices are always efficient, whether set high by firms to maximize profits or adjusted by regulators to equalize wealth, creating an unprecedented opportunity for government to do distributive justice.

PDF link Measuring Fair Use’s Market Effect

by Suneal Bedi & Mike Schuster

This Article builds from our expanded theory by empirically measuring the effect of reusing copyrighted material in subsequent works. We use a novel experimental design with one type of third-party reuse (music sampling) and find that the market reception of a new work that incorporates copyrighted material can impact perceptions about the original work (and thus, influence the original’s market). We find evidence that if the new work is a failure, this in turn has a negative impact on the original work’s perception. Accordingly, our study points to a negative spillover effect that may harm perceptions of the underlying copyrighted work. Because this recognition expands the foundation for courts considering a new work’s market effect, we argue that these insights are crucial to making efficient and effective fair use determinations.


Comments

PDF link Parents’ Rights or Parents’ Wrongs?: The Political Weaponization of Parental Rights to Control Public Education

by Samantha R. Foran

This Comment argues that the Parents’ Bills of Rights serve as tools of political posturing, passed by legislative bodies, and signed by governors to boost support from concerned parents while, in turn, harming members of historically marginalized groups. Proponents of the Parents’ Bill of Rights argue that the statutes are necessary because of the increasing support for children’s rights in opposition to parental control. Additionally, some parents’ rights advocacy groups argue that the Supreme Court has weakened its once strong stance on parents’ rights. Other parents are concerned about a public education system they claim has changed and which they can no longer trust. While it is true that state involvement in parental control of their children has increased since the early twentieth century through child labor laws, laws requiring attendance in school, and enforcement from child protection agencies, this Comment will argue that parents’ rights, particularly the right to direct their child’s education and religious upbringing, remain firmly protected today, as the Supreme Court originally intended. The Supreme Court continues to support parents’ rights, as do many state courts. Children’s rights and parents’ rights can co-exist without eliminating each other.

PDF link Abandonment Issues: Defending the Surface Transportation Board’s Adverse Abandonment Authority

by Jacob Aaron Neeley

This Comment argues that the ICCTA did not extinguish the STB’s adverse abandonment authority. It synthesizes the arguments for and against the STB’s adverse abandonment authority as articulated by the parties in City of South Bend. It then harmonizes the abandonment statute, the ICCTA’s legislative history, and other statutes related to abandonment. Next, it traces adverse abandonment’s development back to its decisional-law origins and argues that adjudicators’ consistent treatment of adverse abandonment petitions in favor of the STB’s purpose to ensure the development and continuation of a sound rail transportation system makes extinguishing the STB’s adverse abandonment authority a sheer absurdity. This Comment concludes that the post-ICCTA version of the abandonment statute needlessly threatens a vital tool in the STB’s toolbox and calls for legislative change to address this oversight.

PDF link Enigma Machines: Deep Learning Algorithms as Information Content Providers Under Section 230 of the Communications Decency Act 

by Vincent Dumas

This Comment argues that courts’ original construction of Section 230 in the context of surfacing algorithms is divorced from the statutory text and maladapted to modern realities. Courts’ use of “neutral tool” analysis in deciding Section 230 immunity has proven unworkable in the face of increasingly sophisticated machine learning algorithms and mass data collection. In lieu of neutral tool analysis, this Comment proposes an alternative framework—the discretionary test—for evaluating whether information content has been created or developed under Section 230. The narrower scope of Section 230 immunity under the discretionary test would better allow litigants the opportunity for discovery and fair recovery against internet service providers employing machine learning algorithms. Finally, this Comment discusses the other defenses to liability that internet service providers employing deep learning algorithms would still enjoy should Section 230 algorithmic immunity be limited to its proper scope.