American University Business Law Review

Articles

Vol. 6, No. 1, 2017

The E-2 Treaty Investor Visa Dilemma: Violations of Law and Limitations on Foreign Investment
Introduction"Entrepreneurship is as a much a part of the American experience as baseball, jazz, and Disneyland."1 Immigrants have a long history of contributing to the American experience by starting successful businesses in the United States.2 Immigrants...
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The Price of Free Mobile Apps under the Video Privacy Protection Act
IntroductionThe advent of the smartphone and its mobile applications ("apps") brought technology closer to the most private areas of one's life: users can manage their financial affairs, medical conditions, and dating prospects all in one place. Beyond...
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Crowdfunding in Wonderland: Issuer and Investor Risks in Non-Fraudulent Creative Arts Campaigns under the Jobs Act
INTRODUCTIONConsider the following scenario: a down-on-his-luck Broadway producer seeks funds from elderly ladies to finance a theatrical production. The elderly ladies are not sophisticated, and the producer comes up with a scheme to defraud them. In...
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Going Green: Legal Considerations for Marijuana Investors and Entrepreneurs
INTRODUCTIONThe marijuana industry is awash in green. While marijuana remains classified as a Schedule I controlled substance under the Controlled Substances Act ("CSA") - marijuana along with ecstasy, heroin, LSD, and hallucinogenic mushrooms, but curiously...
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Free Trade, the Washington Consensus, and Bilateral Investment Treaties the South African Journey: A Rethink on the Rules on Foreign Investment by Developing Countries
INTRODUCTIONThe internationalization of business constitutes one of the dominant features of commerce today. Ever since World War II, the prevailing mantra of trade policy among western countries is free trade.1 Countries in the developed world are expected...
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Individual Accountability for Corporate Crimes after the Yates Memo: Deferred Prosecution Agreements & Criminal Justice Reform
IntroductionAccording to a July 2015 Department of Justice ("DOJ") Report, federal prosecution of white-collar crimes has hit a twenty-year low.1 Rather than prosecuting individual corporate wrongdoers, the government often utilizes deferred prosecution...
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Vol. 5, No. 2, 2016

The Anti-Spoofing Statute: Vague as Applied to the "Hypothetically Legitimate Trader"
INTRODUCTIONThe launch of the world's first electronic securities market in 1969 marked the beginning of the transition to electronic markets.1 Since that time, more markets have become electronic, and technology has vastly improved. Every day, billions...
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Protecting Delaware Corporate Law: Section 115 and Its Underlying Ramifications
"I do not discern an overarching public policy of this State that prevents boards of directors of Delaware corporations from adopting bylaws to require stockholders to litigate intra-corporate disputes in a foreign jurisdiction.- Chancellor Andre G....
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Revisiting the Bank Holding Company Structure: Do Community and Regional Banks Still Need a Bank Holding Company?
INTRODUCTIONThere has been a dramatic rise in the last thirty years toward the adoption of the bank holding company ("BHC") structure by banks. Inherent in this trend is an apparent accepted orthodoxy about the need of such structures from both a business...
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Improving Green Building: Comparing Leed Certification to the FDA and Its Private, Thirdparty Ratings Approach
Introduction"LEED will not be a novelty in the future. In today's market if you are building without LEED, you are building in obsolescence."1 Beginning with the earliest recognition of climate change concerns, there has been an increasingly predominant...
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Throttle Me Not: 2015 Open Internet Order Protects Unlimited Data Plan Users
INTRODUCTIONThrottling is an intentional practice that mobile broadband Internet access service ("BIAS") providers use to slow down users' data throughput speeds.1 One major issue has arisen over the past few years: unlimited data users have seen their...
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Why Delaware Courts Should Abolish the Schnell Doctrine
INTRODUCTIONToday, the proposition that Delaware courts can grant equitable relief is incontrovertible. Apparently, however, this proposition was debatable after the passage in 1967 of the Delaware General Corporation Law ("DGCL").1 Many scholars credit...
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Vol. 5, No. 3, 2016

Salient Features of International Commercial Arbitration in East Asia: A Comparative Study of China and Japan
IntroductionDriven by the trend of harmonization, arbitration in East Asia reflects an increasing uniformity of local legislation. Most East Asian countries have now ratified the New York Convention and a growing number of jurisdictions in the region...
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The Interface between Arbitration and the Brussels Regulation
IntroductionOn January 10, 2015, a revised version of the Brussels I Regulation on international jurisdiction and recognition and enforcement of judgments entered into force1 replacing the original regulation of 2000 (old Brussels Regulation).2 The new...
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The Extension of the Arbitral Agreement to Non-Signatories in Europe: A Uniform Approach?
IntroductionNowadays, there is no doubt that - under certain circumstances - an arbitral agreement can be extended to non-signatories. Many theories have been developed to this effect, such as implicit consent, pierce of the corporate veil, and incorporation...
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The Future of International Arbitration in Central and Eastern Europe
IntroductionCentral and Eastern Europe (CEE) is an amorphous geopolitical concept, employed mostly as a collective name for the broadly conceived former Soviet bloc in Europe, and frequently extending into Albania, the former Yugoslavia, and Romania....
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Arbitrators and Arbitral Institutions: Legal Risks for Product Liability?
IntroductionLet us imagine a brown ginger beer bottle produced by a well-known global institution for your personal use. The bottle's label proudly proclaims that in addition to reaching regions of the world that other natural beverages cannot reach,...
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Are Bilateral Investment Treaties and Free Trade Agreements Drafted with Sufficient Clarity to Give Guidance to Tribunals?
IntroductionThe issue that I have chosen to address is whether Bilateral Investment Treaties ("BITs") and Free Trade Agreements ("FTAs") are drafted with sufficient clarity to give guidance to arbitral tribunals. I will say at the very outset that, in...
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A Modest Proposal for Preventing Multipartite Arbitrations from Being a Burden to the Parties and for Making Them Beneficial to the Parties
IntroductionThe recent increase in so-called "mass" investment treaty claims involving Argentina, the Czech Republic, and Spain put multipartite arbitration in the spotlight. Specifically, considerable attention has been dedicated to whether dozens,...
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Recent Developments in Key Latin American Jurisdictions to Attract International Commercial Arbitration
IntroductionAlthough there is a long tradition of using arbitration to resolve commercial disputes in Latin America, in recent years, most Latin American jurisdictions have revised or amended their national arbitration laws to make their jurisdictions...
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Challenges to the Credibility of the Investor-State Arbitration System
IntroductionInvestor-state dispute settlement ("ISDS") has been put through the ringer in recent public comment as a system that "threatens domestic sovereignty by empowering foreign corporations to bypass domestic court systems" and "weakens the rule...
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Vol. 5, No. 1, 2016

The Joint-Employer Standard after Br 0 Wning-Ferris H & the 21 St Century American Dream
Introduction...37I. The Economic Reality...38II. The Decision...40III. Employers Now Face a Fact Question...42IV. Members of The NLRB Need to See Merit in Collective Bargaining...43V. Other Contexts...45VI. The 21st Century American Dream...46Conclusion...47IntroductionOn...
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Friends with Benefits: Analyzing the Implications of United States V Newman for the Future of Insider Trading
IntroductionIn the recent decision by the United States Court of Appeals for the Second Circuit ("Second Circuit" or "Court"), United States, v. Newman,1 the Court reviewed its standard for prosecuting "downstream" or "remote" tippees under Section 10(b)...
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Combating Impunity: Contractor Liability for Torture during Times of War under the Wartime Suspension of Limitations Act
IntroductionThe definition of war has changed since World War II-the last officially declared war-ended in the 1940s. During World War II, Congress enacted the Wartime Suspension of Limitations Act ("the WSLA" or "the Act") to give the government time...
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Fathoming Potential in China - How Ship Lease Financing Arrangements and Free Trade Zones May Open Markets to Nonbank Investment
I. What is Vessel Lease Financing, and How Does it Compare to Debt Financing?...52A. Debt Financing...52B. Lease Financing...54II. Vessel Finance in China...58A. Debt Financing Arrangements in China...58B. Lease Financing Arrangements in China...611....
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Symposium Articles Introduction
In the vast arena of American commerce, there are political decisions, regulations, and court decisions that, in compression with volatile economic forces, create a combustible mix across industries. Hints of change, expressions of public policy shifts,...
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It Is Time for Something New: A 21 St Century Joint-Employer Doctrine for 21 St Century Franchising
Introduction...6I. Franchising History and Structure...7II. The Joint-Employer Doctrine...12A. The Joint-Employer Standard under Title VII of the Civil Rights Act of 1964 As It Applies to Franchising...13B. The Joint-Employer Standard under the Fair...
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The Rule of Lenity and the Enforcement of the Federal Securities Laws
IntroductionSince the Supreme Court's landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc. ("Chevron"), it has been settled law that courts owe deference to an executive agency's interpretation of a "statutory scheme it...
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Vol. 4, No. 2, 2015

The Clean Power Plan: An Introduction to Cooperative Federalism in Energy Regulation
IntroductionElectricity is the indispensable form of energy that enables technological innovation and productivity growth in the modem world.1 The unique characteristics of electricity, however, create challenges for the regulation of electricity generation...
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A Tale of Two Cities: The Regulatory Battle to Incorporate Short-Term Residential Rentals into Modern Law
IntroductionThe home-sharing company, Airbnb, is rapidly expanding its empire to cities across the globe.1 Since its start in 2007, Airbnb has had more than eleven million guests stay at hosts' residences,2 and is worth about ten billion dollars.3 Innovative...
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The Rescission Doctrine: Everything Old Is New Again
I.Current Internal Revenue Service positionSince 1980, the Internal Revenue Service ("IRS") has approved rescission treatment for certain transactions that unwind earlier transactions. Revenue Ruling 80-581 considers two situations.In Situation 1, in...
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The Supreme Court’s Tightening of Patent Definiteness & the Impact of Nautilus V. Biosig on the Software Patent Industry
INTRODUCTIONPatents, particularly software patents, are typically wide and unclear in scope. Ambiguity in claims makes it difficult to determine when an invention infringes on existing patented technology and creates problems for competitors. Software...
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Condemning a Residential Mortgage Loan: Is It an Extraterritorial Taking?
IntroductionTwo cities in California and one city in Nevada have considered exercising the power of eminent domain to condemn residential mortgage loans but not the real property that serves as security for the loans. Two cities have rejected the idea,1...
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Vol. 4, No. 3, 2015

Welcome to the Space Jam: How United States Regulators Should Govern Google and Facebook's New Internetproviding High Altitude Platforms
IntroductionThe Internet is an electronic communications network that connects computers, other electronic devices, people, and businesses.1 It was the Internet that pushed the 2011 Arab Spring across the Middle East.2 People across twenty countries...
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The Business of Art Theft: Assessing Auction House Standard of Care and the Sale of Stolen Cultural Property
IntroductionAfter gun and drug trafficking, art theft is the largest criminal enterprise in the world.1 Further, the art and cultural property trade is the leading unregulated business on the planet.2 While the full extent of the illegal art market is...
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Sac Capital: Firm Criminal Liability, Civil Fines, and the Insulated CEO
INTRODUCTIONSince 2009, the business pages of many major newspapers have been rife with stories about insider trading. The name most often in the headline of these stories is Preet Bharara, U.S Attorney for the Southern District of New York.1 Since taking...
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The Innovator's Dilemma
INTRODUCTIONThe United States patent system is designed to force innovators to make a choice: maintain their innovations as trade secrets or disclose them in exchange for patent protection.Trade secret protection offers the prospect of perpetual protection,...
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A Threat to or Protection of Agency Relationships? the Impact of the Computer Fraud and Abuse Act on Businesses
INTRODUCTIONThe Computer Fraud and Abuse Act of 1986 ("CFAA") criminalizes unauthorized access to confidential information stored on computers,1 and it is often applied to employer-employee trade secret disputes.2 However, today, the Seventh and Ninth...
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Where Are the Jobs in the Jobs Act? an Examination of the Uneasy Connection between Securities Disclosure and Job Creation
INTRODUCTIONOf the many ailments caused by the 2008 financial crisis, the unemployment rate in the United States served as a direct indicator of the challenges the American economy and its workers faced. Unemployment rose to yearly averages of over nine...
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Vol. 4, No. 1, 2015

Curbing the Exploitation of Passive Creditors in Chapter 11 Reorganization by Leveraging the Oversight Role of the United States Trustee
INTRODUCTIONBankruptcy is an attempt to prevent a tragedy of the commons.1 Without bankruptcy, "creditors would resort to self-help measures to collect debts owed to them" by a failed or failing organization ("the debtor").2 The foreclosure and liquidation...
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To Pay or Not to Pay: Interpretation of Section 302 of the Labor Management Relations Act as Evidenced by Titan Tire
IntroductionThis Comment addresses the recent circuit split concerning the interpretation of Section 302 of the Labor Management Relations Act ("LMRA") with regard to the payment of on leave union representatives. Furthermore, it discusses whether Section...
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High Technology, Consumer Privacy, and U.S. National Security
INTRODUCTIONDocuments released over the past year detailing the National Security Agency's ("NSA") telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) implicated U.S....
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Data Retention Requirements and Outsourced Analysis: Should Private Entities Become Government Surrogates in the Collection of Intelligence?
INTRODUCTIONJune 5, 2013 marked the beginning of an extraordinary, though not unprecedented, period in the history of the American intelligence community. Following extensive (and unauthorized) revelations of U.S. "bulk collection" programs targeting...
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Stare Indecisis: The Federal Circuit’s En Banc Battle against Itself and Business in Lighting Ballast Control, Llc V. Philips Electronics North America Corp
INTRODUCTIONMark Twain wrote "a country without a patent office and good patent laws is just a crab and [cannot] travel any way but sideways and backwards."1 Patents today play a vital role for businesses by giving a right to exclude others from making,...
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The Expanding Reach of the Executive in Foreign Direct Investment: How Ralls V Cfius Will Alter the Fdi Landscape in the United States
IntroductionIn 1914, the total stock of foreign investments in the U.S. economy made up about one-fifth of annual Gross Domestic Product (GDP).2 That same year, foreign direct investment (FDI) in the United States reached $1.3 billion in nominal terms.3...
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United States Assistant Attorney General for National Security John P. Carlin Delivers Remarks at the American University Business Law Review 2014 Symposium
Thank you for that kind introduction - and for inviting me here today. It's a pleasure to be back at AU, and a privilege to join so many experts, essential partners, and good friends in advancing one of the most important conversations currently facing...
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Vol. 3, No. 2, 2014

The Nsa’s Prism Program and the New Eu Privacy Regulation: Why U.S. Companies with a Presence in the Eu Could Be in Trouble
INTRODUCTIONOn June 6, 2013, Edward Snowden, a former U.S. government contractor, publicly divulged a clandestine electronic surveillance program operated by the United States' National Security Agency ("NSA") called the "Planning Tool for Resource Integration,...
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“Ringfencing” U.S. Bank Foreign Branch Deposits: Working toward a Clearer Understanding of Where Deposits Are Payable in the Midst of Chaos
I.BANKING ABROAD-WHY AND HOW?In the second half of the Twentieth Century, the investment of U.S. companies abroad grew dramatically as the United States emerged as a world economic power. The number of foreign offices of U.S. banks skyrocketed commensurate...
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“It’s Not You, It’s Me” - When Are Client Companies Liable for Staffing Firms’ Discriminatory Hiring Practices?
INTRODUCTION"It's not you, it's me." A defendant in a civil action will likely never utter this popular phrase from the dating world. Yet, businesses readily concede client company liability for the actions by staffing agencies in an effort to educate...
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Integrating Latin American Stock Markets: The Mercado Integrado la Tinoamericano (Mila): Innovations and Perspectives
INTRODUCTIONThis Article reviews the main aspects of the Latin American Integrated Market {Mercado Integrado Latinoamericano) ("MILA"), its principal characteristics, its structure, and the prospects for the development of the financial markets of MILA's...
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Discovery without Limits? Obligation to Provide Discovery for Products under Development at the International Trade Commission
INTRODUCTIONDiscovery proceedings before the United States International Trade Commission, which adjudicates investigations brought under Section 337 of the Tariff Act of 1930 ("Section 337 investigations"), move forward at an extremely fast pace and...
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Vol. 3, No. 3, 2014

Keep It Secret; Keep It Safe: A Practitioner’s Guide to the “Bric” Trade Secret Regimes
IntroductionIn late 2003, the large investment bank Goldman Sachs released a paper entitled "Dreaming With BRICs: The Path to 2050."' The authors forecasted - quite optimistically - the rise of the "BRIC economies," an acronym that refers to Brazil,...
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Foreign Corrupt Practices Act Ripples
INTRODUCTIONAn obvious reason to comply with the Foreign Corrupt Practices Act ("FCPA") is that non-compliance can expose a company to a criminal or civil FCPA enforcement action by the Department of Justice ("DOJ") and1 or the Securities and Exchange...
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Response To: “Pay-to-Play: The Impact of Group Purchasing Organizations on Drug Shortages”
The Note authored by Christian DeRoo in Vol. 3.1 of the American University Business Law Review1 fails to cite important and persuasive legal precedent related to the subject matter. For example, the U.S. 8th Circuit Court of Appeals in Southeast Missouri...
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Clean Water Act, Section 404 Applicants: May the Odds Be Ever in Your Favor
"In the business world, the rearview mirror is always clearer than the windshield."- Warren BuffettIntroductionIf Washington, D.C. needed to build a new bridge across the Potomac River when a current one becomes outdated, then it would need to obtain...
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It’s Not Just about the Money: A Comparative Analysis of the Regulatory Status of Bitcoin under Various Domestic Securities Laws
IntroductionThe Internet revolutionized the world like nothing before. It allowed for various forms of communication and connectivity, yet produced a number of social, legal, and economic challenges. Evidently, scholars began to theorize that the Internet...
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Vol. 3, No. 1, 2014

Going beyond the Four Corners: Reflections on Teaching Letters of Credit as a Subset of - International Banking Law
IntroductionThis Article addresses teaching letters of credit ("LC") in the context of teaching international commercial law as a two credit hour semester course in light of 30 years of experience teaching commercial law classes of various sizes and...
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Non-Party Interests in Closing Opinion Letters
IntroductionWhat do transactional lawyers do when they issue third-party opinion letters in financial transactions? This descriptive question turns out to be quite complex1-so complex that the normative question of what lawyers should do when they issue...
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The State of Lawyer Knowledge under the Model Rules of Professional Conduct
IntroductionThe state of lawyers' ethical "knowledge" is poor. By that, I mean that the Model Rules of Professional Conduct and the authorities interpreting it do a poor job of defining "knowledge"; of explaining or justifying the use of the knowledge...
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Nuclear Intentions and Implied Preemption: How Entergy Nuclear Vermont Yankee, Llc V. Shumlin Gives Indian Point a Fighting Chance to Stay in Business
IntroductionThe State of New York and subsidiaries of the Entergy Corporation are currently engaged in a legal conflict over the future of the Indian Point Energy Center ("Indian Point") in Buchanan, New York.1 The New York State Department of Environmental...
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M&a as One Component of a Business Planning Course
IntroductionThis Article describes how law schools can teach mergers and acquisitions ("M&A") as one component of a business planning course that also addresses other stages of a business's development, such as the startup and financing of growth...
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Deal Deconstructions, Case Studies, and Case Simulations: Toward Practice Readiness with New Pedagogies in Teaching Business and Transactional Law
IntroductionStriking an appropriate pedagogical balance in business law is challenging. The discipline is rich in doctrine and theory, and at the same time has incredibly significant practical application. In a traditional business associations, mergers...
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Business Lawyering in the Crowdfunding Era
IntroductionCrowdfunding is all the rage in conversations about small business finance. Yet, as with many other rapidly developing business innovations, practicing lawyers were, perhaps, secondary players in the development of business models for crowdfunding....
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Doing the Numbers: The Numerate Lawyer and Transactional Law
Dear Professor,I am responding to your request for comments regarding the course in Corporations. I was one of those who could profess no prior experience with business at the outset of the course. I am most challenged by "Balance Sheet." These are the...
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Pay-to-Play: The Impact of Group Purchasing Organizations on Drug Shortages
IntroductionThe United States is undergoing a critical shortage of certain prescription drugs. Although the impact of the shortage is undeniable, the cause of the shortage remains an issue of considerable debate.1 Commentators often point to manufacturing...
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Vol. 2, No. 2, 2013

Fiddling on the Roof: Recent Developments in Cybersecurity
INTRODUCTION[Y]ou might say every one of us is a fiddler on the roof trying to scratch out a pleasant, simple tune without breaking his neck. -Fiddler on the Roof 1For today's CEOs and corporate boards of directors, trying to capture the benefits of...
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Reliance on Experts from a Corporate Law Perspective
In discharging their duty of care, directors of corporations are not expected to independently investigate all parameters affecting a decision they are about to make. In fact, statutory provisions encourage or sometimes require directors to seek the...
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Petitioning for Cash: How Domestic Industries Exploit Antidumping Procedures and Antitrust Exceptions to Force Their Foreign Competitors into Lucrative Settlement Agreements
The United States' international trade laws strictly enforce antidumping ("AD") rules, and its antitrust laws effectively oversee private settlement agreements. However, these two distinct, yet related, areas of law both fail to adequately address the...
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Ignoring the Technicality's Temptation: Interpreting the Citizenship of a Foreign Official under the Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act ("FCPA") prohibits bribing "foreign officials," but it does not define the word "foreign" or give any guidance to what citizenship the official must have to fall under the FCPA. Adding to the difficulty when defining...
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The Poli-Intel Industry: Considering the Common Law's Application in Insider Trading under the Stock Act
President Barack Obama signed the Stop Trading on Congressional Knowledge Act ("STOCK Act") into law on April 4, 2012. Congressional silence on the STOCK Act's purview over the political intelligence industry and the lack of guidance from the Securities...
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Vol. 2, No. 1, 2012

Choose Your Own Master: Social Enterprise, Certifications, and Benefit Corporation Statutes
In the wake of the most recent financial crisis, interest in social enterprise has increased exponentially. Disillusioned with the perceived shareholder wealth focus of corporate law, entrepreneurs, investors, customers, and governments have become more...
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The Next Big Thing: Flexible Purpose Corporations
INTRODUCTIONOver the past few years, jurisdictions across the country have enacted specialized organizational forms to house social enterprises. Social enterprises are entities dedicated to a blended mission of earning profits for owners and promoting...
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Putting New Sheets on a Procrustean Bed: How Benefit Corporations Address Fiduciary Duties, the Dangers Created, and Suggestions for Change
INTRODUCTIONIn Greek myth, Procrustes, a bandit son of Poseidon, had a one-size-fitsall iron bed on which he invited passers-by to spend the night.1 Once his guests were asleep, he used his ironsmith?'s hammer to stretch them to fit the bed. If a guest...
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L3cs: An Innovative Choice for Urban Entrepreneurs and Urban Revitalization
INTRODUCTIONSocial enterprises offer fresh ways of addressing seemingly intractable social problems, such as high levels of unemployment and poverty in economically distressed urban areas in the United States. Indeed, although social enterprises have...
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Can't See the Forest for the Trees: Where Does a Purchase or Sale of Securities Occur?
INTRODUCTIONWhether Justice Scalia chopped down the "judicial oak which ha[d] grown from little more than a legislative acorn"1 or cleared an entire forest of "botanically distinct tree[s]"2 when he created the transactional test in Morrison v. National...
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Is Judge Rakoff Asking for Too Much? the New Standard for Consent Judgment Settlements with the Sec
In SEC v. Citigroup Global Markets, Inc., Judge Rakoff rejected a $285 million settlement between the Securities and Exchange Commission ("SEC" or "Commission") and Citigroup. The complaint alleged that Citigroup failed to disclose its role in the selection...
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Forward-Looking Improvements to Licensing the Next Generation of Nuclear Reactors
Nuclear regulation has faced a variety of challenges since the Atomic Energy Commission first introduced the procedure of two-step licensing, in which construction and operational licenses are issued separately to nuclear reactor developers. Since 1974,...
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