The Issue of Personal Liability for Insolvent Trading is important for existing and prospective company directors. Under section 588G of the Australian Corporations Act 2001 (hereinafter “Corporations Act 2001”), directors of a company have the duty to prevent insolvent trading. Failure to do so will lead to the directors incurring personal liability. “Insolvent trading involves the incurring of debts when circumstances of insolvency in relation to a company exist and the subsequent winding up in insolvency of the company. It has been theoretically disputed whether there is a need to protect creditors by legislative means when a company nears insolvency. Various policy justifications have been invoked for a rule against insolvent trading. These policy justifications appear to be robust, but not without their critics. However, these criticisms have not had much traction in shifting the policy and legislative choices drastically. That said, the practical impact of a stringent approach to insolvent trading in Australia had recently culminated in prompting the enactment of an amendment to section 588G of the Corporations Act 2001 by providing a safe harbor to directors who take a “course of action reasonably likely to lead to a better outcome for the company” and the company’s creditors. The carve-out for directors who intend to use the safe harbour whilst not getting rid of the insolvent trading prohibition does have a significant impact for those who genuinely attempt to turn around the fortunes of their companies. This paper examines the implications of the reform for the personal liability of directors for insolvent trading in Australia.
Lawyer bashing is a robust and accepted social tradition. But recent events create the impression that women lawyers face more than the generic suggestions of dishonesty, untrustworthiness, greed and adversarialism that typify anti-lawyer criticisms. Criticisms and attacks on women lawyers are personal and gendered, as well as being intense and hostile, in a way that differs from the generic, often humorous, and impersonal nature of traditional antipathy to the legal profession. And even when women lawyers are viewed positively, commentary focuses on their looks, clothes and families, in a way that is not the case for men. This paper identifies the reasons for and consequences of how we talk about women lawyers.
THE YEAR 2016 has proven to be a monumental year for women: The United States witnessed its first female Presidential candidate from a major party; women currently occupy fifty-one percent of management and professional related positions in the labor force; and a growing number of women are occupying CEO positions at the Standard & Poor’s 500 Index, “S&P 500 Companies.”1 “S&P” 500 is a market value weighed index and has become one of the most preferred indexes for US stocks.2 While these statistics reflect the growing work force equality among men and women, unequal pay equity remains a serious problem for women. In 2015, women working full-time in the United States were paid only eighty percent of what male full-time workers were paid.3 In addition to the eighty percent national pay gap, pay gaps were also calculated for each state. In 2015, New York had the smallest pay gap, where female full-time workers were paid eighty-nine percent of what male full-time workers were paid. The
In 2014, the United Nations Human Rights Council adopted a resolution to establish a Working Group to draft a treaty on business and human rights. In the aftermath of this resolution, much is being written on what such a treaty would cover. And in light of the very close vote approving the resolution — and the likelihood that few developed countries would ratify the treaty — a question may arise as to whether the effort to draft the treaty would be worth it. To answer this question, this paper examines the International Convention for the Protection of All Rights of Migrant Workers and Their Families — which has only been ratified by a small number of states (and primarily by sending countries). This paper first summarizes the history of the efforts to address corporate accountability, and examines the current voluntary and mandatory international standards relevant to the human rights obligations of businesses. The paper then reviews the Convention on Migrant Workers and the Committee on Migrant Workers (CMW) Concluding Observations on reports of the States Parties. These reports indicate that states have adopted legislation to both educate their own citizens who might emigrate to other countries as well as to provide some benefits to migrant workers in their own countries. Despite the small number of States Parties to the Convention, this legislation demonstrates what can be done to protect the rights of migrant workers both in sending and receiving countries, and it helps develop best practices to promote their rights. And while the CMW has raised concerns regarding the adequacy of this legislation, the laws have helped to develop the legal standards regarding the definition of migrant workers, and regarding the rights of those in irregular situations. The paper asserts that these benefits will clearly have an effect on the evolution of the law protecting migrant workers and their families. The Convention on Migrant Workers thus provides a good model for the possible benefits of a treaty on human rights, even if such a treaty is not widely ratified. First, the drafting of a binding document has helped develop the law on migrant workers. Second, the treaty has helped to promote and protect the rights of workers from sending states as well as migrants who live in the States Parties. The paper concludes that the drafting of a treaty on business and human rights could have a similar effect. Such a treaty could promote the development of international standards to address the topic at the international level, as well as the development of procedures at the national level. It could also provide a forum for addressing redress at the international level when the domestic procedures are not sufficient.
THE COPYRIGHT ALERT SYSTEM is a private copyright enforcement mechanism jointly adopted by numerous content owners and internet service providers to deter illegal peer-to-peer file sharing.1 While many analysts have studied how the Copyright Alert System interacts with other areas of American jurisprudence, few commentators have analyzed its significant antitrust implications. This paper explores the history of online copyright infringement through peer-topeer file sharing, an overview of the Copyright Alert System, and the antitrust ramifications resulting from private copyright enforcement through the Copyright Alert System.
MANUEL FRAGANTE IMMIGRATED TO HAWAII AT THE AGE OF 60.1 Upon arrival, he began searching for a job.2 He applied for a clerk position at the City of Honolulu’s Division of Motor Vehicles and Licensing.3 The position required taking an exam that tested “among other things, word usage, grammar and spelling.”4 Fragante scored the highest out of 721 test-takers.5 Shortly after, he was interviewed for the position.6 During the interview, the interviewers had a difficult time understanding Fragante due to his accent.7 The employer concluded that Fragante’s accent “would interfere with his performance of certain aspects of the job.”8 As a result, Fragante dropped from the first to the third position on the list of applicants qualified and eligible for the position.9 Fragante subsequently filed a Title VII claim alleging accent discrimination.10 At the trial, two expert witnesses testified that, even though Fragante spoke with a heavy accent, his speech was comprehensible, however due to a history of discrimi-
Blameworthiness, or culpability, is central to the law, to morality, and generally to many social norms. As a basis for finding liability in civil and criminal matters, and as an important factor for the gauge of just requitals, it plays multiple roles. Despite its significance, the meaning and measure of blameworthiness is not settled. This article examines two traditional conceptions of the notion. First, Aristotle declares that one is not responsible, not blameworthy, for harms caused by chosen conduct that is the result of unavoidable ignorance or coercion. Second, Kant mandates that all rational, and therefore ethical, beings are entitled to equal respect. One is blameworthy, therefore, for failing to treat others with respect and for not considering them as moral equals. Both Aristotle and Kant thereby each identify two aspects of blameworthiness: under Aristotle’s conception of responsibility are unavoidable ignorance and coercion; under Kant’s conception of equal moral status are disrespectful treatment and attitude. All four of these aspects are scalar, matters of more or less. Yet each of these aspects need not be valued the same as the others. Ignorance, for example, may be (at times) normatively weightier than coercion, or weightier than a comparable disrespectful attitude. These differences may turn on many factors, such as the circumstances of the harm or its requital (e.g., civil versus criminal liability; the particular civil remedy sought) and the relative degree of each aspect (e.g., a doubling of coercive pressure may be more than twice as significant as its baseline level). In trying to gauge overall blameworthiness, then, there are a myriad of interrelated considerations – a veritable labyrinth. This article enters the morass and points out many of the landmarks that should be mapped for fully principled evaluations. Most of these complexities are currently avoided in practice by reliance on society’s scarcely guided collective conscience – the reasonable person.
In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty. The purpose of this article is to contribute to that discussion. The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years. Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline. The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty. The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer. Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty. The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place. The Court could choose to abolish the death penalty for one of several reasons. First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application. Second, there are several Eighth Amendment grounds upon with the Court could rely. For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.” The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.” Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.
This Article describes the blossoming CLF sector by placing it in the context of the fast-growing crowdfunding industry and the alternative litigation finance industry. Part I first explains the basic structure, variations in the types of crowdfunding financing, and the overall impact of crowdfunding, after which this Article turns to highlight the most important issues that arise in the context of alternative litigation finance in Part II. Subsequently, in Part III, the Article explains the main features of the emerging CLF sub-industry and examines the universe of recently launched crowdfunding campaigns geared towards seeking funding for litigated cases. This Part — and the Article — ends with a brief discussion on the possible challenges that affect the development of CLF, and how the sub-industry’s players are addressing them.
ON NOVEMBER 16, 2013, the Council of the County of Kaua’i, Hawai’i (“County”) voted to override the Kaua’i mayor’s veto of an ordinance placing local restrictions on pesticides and genetically modified organism (GMO) crops.1 Not two months later, Syngenta Seeds, Inc. and several other producers of GMO crops sued the County in federal district court.2 These corporations, which produce genetically engineered (GE) crops, alleged thirteen claims ranging from preemption and equal protection, to violations of state and county law, and “unconstitutional interference with the conduct of foreign affairs.”3 Also in 2013, Hawai’i County enacted an ordinance prohibiting the cultivation of GE crops within the county.4
CURRENTLY, FEDERAL LAW in the United States affords citizens virtually no protections from the very real and catastrophic ramifications of hydraulic fracturing (fracking).1 Although fracking presents a lucrative industry, especially appealing to economically depressed rust belt states,2 the potential risks cannot be left unattended. A December 2013 Pennsylvania Supreme Court decision, Robinson Township v. Commonwealth,3 marked a pivotal moment in the fight to ensure responsible, sustainable development. The court, finding a state law that prohibited localities from banning fracking unconstitutional, grounded its decision in an amendment to the Pennsylvania Constitution that codified the public trust doctrine.4 Abroad, a number of countries have already recognized the need to equip citizens with sub-
WILLIAM L. PROSSER, opinionated maven of the law of torts in an earlier generation, probably represented widespread professional sentiments about the subject of choice of law—a field that, then and now, consists largely of judge-made law. Several years ago, he colorfully wrote: “The realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors . . . . The ordinary court, or lawyer, is quite lost when engulfed and entangled in it.”1 When advising lay clients about legal issues subject to the vagaries of choice-of-law doctrine, most lawyers are able to rise with professional good grace above their frustration with the field’s uncertainties. When dealing with legal issues affecting themselves, however, lawyers—as with their clients and gored oxen generally—have been far less tolerant of uncertainty. That has led the American Bar Association (ABA) and a number of states to attempt to resolve at least some of the uncertain applications of choice-of-law rules in the limited field of lawyer discipline. The ABA has done so by replacing the common law rules of choice of law with rules it touts as being significantly clearer and more predictable.
ALL LITIGATION REQUIRES some degree of financing, either by the parties themselves or, in the case of a contingency or pro bono case, by the firm extending credit and expense against the future proceeds of settlement or judgment. Some clients, however, lack the resources to fund litigation, regardless of the potential final award, or have medical or living expenses that must be paid before the suit is resolved and which the plaintiff’s attorney cannot pay on the client’s behalf.1 Alternative or third-party litigation funding is not new. Thirdparty litigation funding was historically classified as champerty, and its related generally-outlawed practices of maintenance, usury, and barratry.2 “Put simply, maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome; and barratry is a continuing practice of maintenance or champerty.”3 Champerty in particular is “[a]n agreement between an officious intermeddler in a lawsuit and a litigant by which the inter-
