The Future of the Casebook: An Argument for an Open-Source Approach

Despite dramatic technological change, the thick, attractively bound casebook remains ensconced as the written centerpiece of legal education. That will soon change - but its replacement has not been established. This paper argues that the legal academy should take this opportunity to implement an open source approach to future course materials. Guided by analysis and examples of commons-based peer production such as open source software, professors could establish electronic commons casebooks with a myriad of materials for every course. These joint databases would unshackle individual creativity while engendering collaboration on levels previously impossible. Although there may be concerns that such a project would not draw any interest, or might be swamped by too much interest, the successes of other peer-production projects demonstrate that such concerns are generally unwarranted or manageable. Copyright ultimately poses the biggest difficulty, but even that barrier can be circumvented to greater and lesser degrees. Although as yet an untried experiment, an open source approach has the potential to open a new era in legal pedagogy

Workers, Information, and Corporate Combinations: The Case for Non-Binding Employee Referenda in Transformative Transactions

Employees present a curious puzzle for corporate law. The success of a corporation depends on its employees, from the chief executive officer down to the front-line production or service worker. But for the most part, corporate law relegates employees to the sidelines. Perhaps nowhere is this difference as dramatic as in the realm of mergers, acquisitions, and other transformative transactions. Such transactions are usually negotiated at the highest levels of management, approved by the board, and ultimately approved by the shareholders. In contrast, employees at most may be able to bargain about the effects of the merger through union representatives; otherwise, they have no input. This paper proposes that employees be given a vote in a nonbinding referendum on mergers, acquisitions, and the other corporate combinations which shareholders must approve. The purpose of such a referendum would be twofold. First, it would provide more information to shareholders about the costs and benefits of the proposed transaction. As such, it would facilitate greater interaction between shareholders and employees to police management. Second, it would give employees a voice in the process - a voice that is valuable even if it has no material ramifications. Given the low costs in implementing the referendum, the paper encourages states to consider this corporate law innovation as a small but significant addition to their corporation statutes

The Next Iteration of Progressive Corporate Law

A wave of progressive corporate law scholarship in the late 1980s and early 1990s reimagined corporate law from the perspective of employees, consumers, and other stakeholders left behind by shareholder primacy. Almost thirty years later, it is time to revisit this literature and consider what progressive corporate law should be in the 21st Century. This essay argues for three changes: (1) a move to the theory of the firm as the underlying economic literature; (2) a focus on employees, rather than stakeholders more generally, and (3) an effort to change statutory and structural aspects of corporate law, such as board representation, rather than Delaware chancery opinions. This essay was presented as part of the 2016 Lara D. Gass Annual Symposium on Corporate Law, Governance, and Purpose: A Tribute to the Scholarship of Lyman Johnson and David Millon

Trademark\u27s \u27Ship of Theseus\u27 Problem

The story of the ship of Theseus has long presented a puzzle over the nature of identity. Preserving the boat over time, the ancient Greeks would remove its wooden planks as they rotted and replace them with new planks. The question arose: was this still the same ship? The problem hits at an issue that is critical to trademark law but has largely been overlooked: namely, what is the identity of the entity that holds the mark? And how do we determine whether that has changed over time? The law provides straightforward answers: it assigns the mark to the business entity and then provides that entity with almost absolute discretion over use and exclusion. Trademark law cares little about whether the entity is still representative of the mark over time. This approach is problematic. It allows marks to drift away from their original meaning and become vessels for brand expansion. The corporate holder can then exclude all other players, including former employees, from using the mark to which they contributed. The legal entity holding the mark can peel away every layer of connection between the mark and its creators and yet still wield it in commerce. The essay sketches out two potential pathways to address this ongoing dilemma: a more attentive examination of the connection between mark and economic firm, or a relaxation of the exclusive control that mark holders currently have over use

The Future of the Casebook: An Argument for an Open-Source Approach

Despite dramatic technological change, the thick, attractively-bound casebook remains ensconced as the written centerpiece of legal education. That will soon change – but its replacement has not been established. This paper argues that the legal academy should take this opportunity to implement an “open source” approach to future course materials. Guided by analysis and examples of commons-based peer production such as open source software, professors could establish electronic commons casebooks with a myriad of materials for every course. These joint databases would unshackle individual creativity while engendering collaboration on levels previously impossible. Although there may be concerns that such a project would not draw any interest, or might be swamped by too much interest, the successes of other peer-production projects demonstrate that such concerns are generally unwarranted or manageable. Copyright ultimately poses the biggest difficulty, but even that barrier can be circumvented to greater and lesser degrees. Although as yet an untried experiment, an open source approach has the potential to open a new era in legal pedagogy

NASCAR Green: The Problem of Sustainability in Corporations and Corporate Law

The concept of sustainability is, at root, about a commitment to considering the future of the planet in our everyday affairs. In the corporate law context, supporters of sustainability seek to integrate these long-term environmental and social concerns into the corporation\u27s DNA. This article seeks to explore sustainability as a corporate law concept by looking at the sustainability efforts of NASCAR and its affiliated firms. NASCAR has undertaken a series of green initiatives, most notably in the promotion of alternative fuels. These sustainability efforts are facilitated, in part, by the unusual structure of NASCAR and the sport of stock-car racing. It is not NASCAR\u27s own internal structure that facilitates sustainability, but rather NASCAR\u27s interlocking relationships with corporate partners, who are driven (by ideology and/or consumer tastes) topursue sustainability efforts. Sustainability advocates should consider not only the corporation itself, but also the relationships between corporations, when developing a corporate law sustainability program. In addition, this article advocates that sustainability efforts focus on environmental issues and, more specifically, the amelioration of climate change, rather than simply adopting the existing corporate social responsibility (CSR) programme. This paper was presented as part of the Wake Forest Law Review Symposium, The Sustainable Corporation

Aligning Incentives with Equity: Employee Stock Options and Rule 10b-5

When the Internet boom was in full swing and the stock markets skyrocketed to new levels, companies new and old used stock options to attract and retain employees. Implicit in those options was the promise that employees could participate in the growth of a company\u27s value. However, as the scandals involving WorldCom, Enron, and Global Crossing demonstrate, corporate managers were not always honest with employees or public investors about the company\u27s true value. Public investors can seek civil remedies for securities fraud through a private action under the Securities and Exchange Commission\u27s Rule 10b-5. The Rule\u27s purchase or sale requirement, however, has been interpreted to exclude employees who receive their options through a group plan rather than through individual negotiation. Employees who individually negotiate for an employment package including options are deemed to have purchased their options; employees who receive their options through a group plan are deemed to not have purchased them. This formalistic disparity favors executives, managers, and other high-level employees who individually negotiate for their employment contracts; employees who receive their options en masse are left out in the cold. This article argues that distinguishing between employees based on their method of obtaining stock options is wrong, both as a matter of doctrine and policy. The doctrinal distinction between negotiated options and groups plans is based on an outmoded theory about employment contracts - a theory that, in the past, deemed employer pension promises to be a mere gratuity. An employer\u27s offer of stock options - just like health benefits - is a binding contract once the employee accepts that offer by working. On a policy level, employees who receive their options through a group plan are, in fact, more likely than their individual-negotiation counterparts to need the antifraud protections that Rule 10b-5 affords. Although employees may have certain informational advantages over outside investors, they are often just as susceptible to managerial fraud. The possibilities of employee strike suits or the chilling of option grants are not sufficiently important to warrant the elimination of antifraud security. And other legal avenues, such as contract law or ERISA, do not provide the same protections as Rule 10b-5. Ultimately, the article concludes that all employees should be able to pursue relief under Rule 10b-5 for fraud that materially affects the value of their options

HIPPA

HIPPA does not exist. The real acronym for the 1996 Health Information Portability and Accountability Act is HIPAA—“privacy” is not even in the title. But many have invoked HIPPA in seeking to keep their personal health decisions private and autonomous. No doubt a complicated statutory and regulatory regime, HIPAA\u27s scope is much narrower than the average person understands, applying mainly to health care providers and insurers. But its complexity does not explain the widespread and erroneous expectation that federal law will shield those who want to keep their health information, like vaccination status, to themselves. Asserting a right to confidentiality under HIPPA demonstrates a failure to understand the interconnected nature of public health, looking instead to claim an inviolable shield. But those who mock the HIPPA invokers fail to appreciate the real costs to health privacy and personal autonomy that the pandemic has engendered. All sides should approach these questions from a perspective of compromise and understanding—not as a conflict of unassailable rights

Participation as a Theory of Employment

The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory of the firm literature to provide a new doctrinal definition for “employee” based on the concept of participation rather than control. The participation test better delineates the boundaries of employment and provides a framework for addressing the stresses on firms and workers that are rife within the modern economy