University of Pennsylvania Journal of Business Law最新文献

{"title":"A Very Special Regulatory Milestone","authors":"W. Laufer","doi":"10.2139/SSRN.3034699","DOIUrl":"https://doi.org/10.2139/SSRN.3034699","url":null,"abstract":"Expenditures underwriting corporate compliance in the United States are approaching a very special regulatory milestone. Compliance costs are nearing municipal policing costs. The trajectory of compliance expenditures over the past several decades may be traced to a good corporate citizenship movement in the mid-1990s where the government proposed a public-private sector partnership to combat corporate crime. In this Essay, it is argued that this “partnership” was never really about a fair sharing the enforcement responsibilities. The government hoped to overcome the near insurmountable challenge of getting evidence of corporate wrongdoing, while shifting as much of the burden and costs of policing to the regulated. Companies continue to justify making compliance expenditures in reasonably defensive ways to levels that are now unprecedented. \u0000The Essay highlights that those who rail against over-criminalization or corporate criminal liability, more generally, miss speaking out against a one-sided regulatory strategy of compliance cost shifting that brings us to this historic milestone. Moreover, the threat of unfair and burdensome costs was never with the very rare event of corporate criminal liability. Rather, the threat came from firms taking the government’s bait that they needed to spend, and spend, and spend more. This boundless spending, it is concluded, may be seen as imposition of a preemptive penalty on firms. This is a way for regulators to ensure that firms pay a fair share for their wrongdoing for the “dark figure” of corporate culpability. \u0000In this Essay, some of the most significant questions about the private and public administration of justice are asked on the precipice of a gradual retreat from this very special regulatory milestone. This retreat will come from efficiencies brought about by the digitalization of compliance and a convergence in compliance technology, evaluation science, international standards, and investments in sophisticated enterprise-wide risk management systems. The resulting reduction in compliance expenditures will bring about a corresponding decline in preemptive penalties. The hope is that this will motivate government functionaries to join firms as an active partner in forging new and innovative paths to regulation.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125409884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Will the Supreme Court Agree with the NLRB that Pre-Dispute Employment Arbitration Provisions Containing Class and Collective Action Waivers in Both Judicial and Arbitral Forums Violate the National Labor Relations Act – Whether There is an Opt-Out or Not?","authors":"C. O'Brien","doi":"10.2139/SSRN.2812224","DOIUrl":"https://doi.org/10.2139/SSRN.2812224","url":null,"abstract":"Should employers be able to require individual employees to sign away their rights to collective action as a condition of employment? The National Labor Relations Board has held in D.R. Horton and Murphy Oil USA that when employers require employees to waive their right to “joint, class, or collective claims addressing wages, hours, or other working conditions against the employer in any forum, arbitral or judicial” as a condition of employment, this violates the NLRA. Even allowing prospective employees to opt out of such class waivers does not cure the violation in the NLRB’s view according to its decision in On Assignment Staffing Services. A circuit split has developed on enforcement of the Board’s orders on the class waiver issue with the Fifth and Eighth Circuits in particular denying the NLRB enforcement, while the Seventh and Ninth Circuits support the Board's position. There are many class waiver cases currently pending on appeal with over thirty awaiting resolution before the Fifth Circuit alone. The Supreme Court will likely be faced with deciding one of these appeals soon. Petitions for certiorari have been filed by Epic Systems and Ernst & Young regarding their losses at the Seventh and Ninth Circuits, the NLRB has petitioned the Court seeking to reverse the Fifth Circuit's refusal to enforce its decision in Murphy Oil, and employees have filed a petition regarding the Second Circuit's decision in Patterson v. Raymours Furniture. This article discusses the NLRB’s and courts’ positions from five recent cases involving class waivers in individual employment dispute agreements. It suggests how the courts and the Supreme Court should rule as well as the possibility of legislative action.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124521284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Suppressed Anger, Retaliation Doctrine, and Workplace Culture","authors":"Leora F. Eisenstadt, D. Geddes","doi":"10.2139/SSRN.2928240","DOIUrl":"https://doi.org/10.2139/SSRN.2928240","url":null,"abstract":"Suppressed Anger, Retaliation Doctrine, and Workplace Culture is an interdisciplinary piece combining legal analysis with organizational behavior/psychology research. Suppressed Anger examines and critiques two employment law doctrines on retaliation — the “reasonable belief” doctrine and, what we call, the “manner of the complaint” doctrine and argues that beyond hindering employees’ rights as has been examined in prior scholarship, the law in this area also does a significant disservice to employers by inhibiting emotion expression and thereby negatively affecting workplace culture and productivity. The “reasonable belief” doctrine essentially dictates that for retaliatory conduct to be unlawful, the complaining party must have an objectively reasonable belief that the practices he or she opposed were unlawful, basing the assessment of reasonableness on whether a court would find the practices to be unlawful discrimination. The “manner of the complaint” doctrine arises in cases in which an employer deems the manner of the employee’s complaint regarding discriminatory practices to be insubordinate and fires the employee on that basis. In these cases, courts rarely question an employer’s claim of insubordination, ignoring the circumstances that gave rise to the complaint and focusing solely on the employer’s subjective belief that the employee’s demeanor was unacceptable. The result of both of these doctrines, we argue, is a legal framework that incentivizes employees to stay quiet and refrain from making any complaints. \u0000This piece breaks new ground by drawing on existing scholarship in the psychology and organizational behavior field detailing the negative outcomes when employees suppress anger and other emotions in the workplace, particularly in response to perceived injustice. We use this research to argue that retaliation doctrine inhibits the useful airing of problems that require management attention, instead fomenting worker dissatisfaction and even leading to psychological and physiological issues for individual employees that negatively impact the workplace as a whole. As a result, we maintain that changing retaliation doctrine should not be a goal of workers alone but that employers, upon examining the research on expressions of anger in the workplace should find common ground with their employees.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133547307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revising the Roles of Master and Servant: A Theory of Work Law","authors":"Stephen C. Nayak-Young","doi":"10.2139/SSRN.2480213","DOIUrl":"https://doi.org/10.2139/SSRN.2480213","url":null,"abstract":"In this article, I critically examine the claim that work law is best conceived as a subspecies of contract law, arguing that this characterization is neither descriptively nor normatively instructive. Rather than understanding work law as a set of restraints on freedom of contract, we should see it as creating and defining special relationships, much like the codified definitions of marriages and business partnerships. I trace the development of work relationships through the common law of “master and servant” and their more recent statutory modification. I argue that the history and present form of work law are not consistent with the contract-centered view of work law as “interfering” with an otherwise free labor market. In addition, I set the stage for a future research project in which I will argue that since work relationships permit employers to exercise authority over workers, a just work law would narrowly circumscribe employers’ authority in order to achieve work law’s justifiable aims while minimizing overreaching by employers.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122478250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Defense of Snooping Employers","authors":"Jessica Fink","doi":"10.2139/SSRN.2293121","DOIUrl":"https://doi.org/10.2139/SSRN.2293121","url":null,"abstract":"In recent months, a plethora of states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the \"social media privacy\" of individuals in their states. Indeed, discussions of workplace privacy are everywhere nowadays: Media stories condemn employers’ efforts to monitor their employees’ email, Internet and telephone usage. Employees rage about perceived invasions of their privacy. Politicians heatedly debate how to limit employers’ prying conduct, passing laws designed to reign in certain types of monitoring by employers. At the same time, employers also find themselves perplexed, as they grapple with how they can gather the information that they need to make important business decisions within an environment that views such efforts with disdain. In a world where technological advancements have made it easier than ever to collect massive amounts of information about those in the workforce and where employers feel an increasing need to collect such information, looming questions continue to exist regarding the proper scope and limits of employees’ privacy.This article represents one effort to answer these questions while taking the employers’ perspective into account, explaining both the motivations behind and justifications for employers’ efforts to \"snoop\" into their employees’ private lives. The article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this article discusses the financial, legal and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees. At bottom, this paper attempts to put the \"problem\" of employer snooping into a broader context. While employers certainly should not have access to every aspect of their prospective and current employees’ private lives, and while abuses of the boundaries undoubtedly exist, much of the snooping behavior for which employers have been condemned represents more than just senseless meddling, but rather is part of a sound business plan designed to protect employers, employees and the public at large.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134142237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Facebook Meets the NLRB: Employee Online Communications and Unfair Labor Practices","authors":"R. Sprague","doi":"10.2139/SSRN.1982717","DOIUrl":"https://doi.org/10.2139/SSRN.1982717","url":null,"abstract":"In the past eighteen months, the National Labor Relations Board (“NLRB”) has received approximately one hundred charges from employees that were disciplined or fired as a result of their work-related online communications, principally through Facebook. These and other charges have resulted in twenty-one NLRB Office of the General Counsel Advice Memoranda, ten General Counsel reviews, four Administrative Law Judge (“ALJ”) decisions, and one Board decision, all addressing employee use of social media. This Article is the first to examine in detail those employee charges and the thirty-six incidents addressed by the Office of the General Counsel, the ALJs, and the Board. This Article’s analysis reveals that, based on these charges and incidents, most employees are not engaging online in concerted activities protected by the National Labor Relations Act. Rather, for the most part, they are griping about work and getting fired for it. However, these charges and incidents have raised concerns over the enforcement of overly broad social media policies by employers. Most importantly, the nature of social media technologies raises new issues of unlawful employer surveillance that have yet to be directly addressed by the NLRB. These three issues are examined through this article: determining when employee online communications are protected concerted activity, determining what constitutes an acceptable social media policy, and determining when an employer might engage in unlawful online surveillance.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134150531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century","authors":"Gabriel H. Markoff","doi":"10.2139/SSRN.2132242","DOIUrl":"https://doi.org/10.2139/SSRN.2132242","url":null,"abstract":"The conventional wisdom states that prosecuting corporations can subject them to terrible collateral consequences that risk putting them out of business and causing massive social and economic harm. Under this viewpoint, which has come to dominate the literature following the demise of Arthur Andersen after that firm’s prosecution in the wake of the Enron scandal, even a criminal indictment can be a “corporate death penalty.” The Department of Justice (“DOJ”) has implicitly accepted this view by declining to prosecute many large companies in favor of using criminal settlements called deferred prosecution agreements, or “DPAs.” Yet, there is no evidence to support the existence of the “Andersen Effect” and the much-hyped corporate death penalty. Indeed, no one has ever empirically studied what happens to companies after conviction. In this Article, I do just that. Using the database of organizational convictions made publicly available by Professor Brandon Garrett, I find that no publicly traded company failed because of a conviction in the years 2001-2010. Moreover, many convictions included plea agreements imposing compliance programs that advocates have pointed to as a key justification for using DPAs. Because corporate convictions do not have the terrible consequences they were assumed to have, and because they can be used to obtain compliance programs just as DPAs can, the DOJ should prosecute more lawbreaking companies and reserve DPAs for extraordinary circumstances. In the absence of some other justification for using DPAs, the DOJ should exploit the stronger deterrent value of corporate prosecution to its full capacity.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129013752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"But I'm an American! A Text-Based Rationale for Dismissing F-Squared Securities Fraud Claims After Morrison v. National Australia Bank","authors":"A. Reed","doi":"10.2139/SSRN.2327294","DOIUrl":"https://doi.org/10.2139/SSRN.2327294","url":null,"abstract":"This article proposes a novel analytical framework for assessing the scope of the antifraud provisions of the federal securities laws. In Morrison v. National Australia Bank Limited, the United States Supreme Court announced a new standard for determining whether a particular securities transaction is subject to Section 10(b) of the Securities Exchange Act of 1934. Although meant to be a bright-line rule, the Court’s new test has generated considerable uncertainty on account of its ambiguity. Consequently, courts applying Morrison often premise their holdings on the policy concerns underlying the test rather than on the text of the test itself. The article proposes a new interpretive framework for the Morrison Court’s transactional test. Specifically, the article argues that application of the test should not occur in a vacuum but must instead be informed by the text and legislative history of the Exchange Act. When placed in context, the transactional test reveals an intent to limit the scope of Section 10(b) to transactions occurring on domestic securities exchanges and in domestic over-the-counter markets. Although the proposed analysis arguably provides the simplest and most direct means for disposing of so called \"f-squared\" claims post-Morrison, its implications extend beyond the f-squared context.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116130296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fifty Ways To Leave Your Employer: Relative Enforcement of Covenants Not To Compete, Trends, and Implications for Employee Mobility Policy","authors":"Norman D. Bishara","doi":"10.2139/SSRN.2014277","DOIUrl":"https://doi.org/10.2139/SSRN.2014277","url":null,"abstract":"Covenants not to compete (“noncompetes”) remain a controversial tool for employers to restrict employee post-employment mobility, particularly in an increasingly cross-jurisdictional business world. Amid the growing attention focused on the impact of noncompetes in legal and business academic literature, scholars have begun to use interpretations of the strength of enforcement of these post-employment restrictions to assess barriers to employee mobility and knowledge diffusion.Unlike previous research, this article systematically, and with an in-depth examination of both case law and legislation, gauges the relative strength of noncompete enforcement across the United States based on multiple factors at two periods. Accordingly, the article presents trends in noncompete enforcement policy and evaluates these results in light of the legal literature arguing that an interjurisdictional market for law exists. The article concludes with an evaluation of the implications and future use of these findings for policymakers, businesses, and employees, as well as recommendations for additional research.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132981031","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Overused and Under-Defined Notion of 'Material' in Securities Law","authors":"D. Oesterle","doi":"10.2139/SSRN.1772725","DOIUrl":"https://doi.org/10.2139/SSRN.1772725","url":null,"abstract":"Core doctrine in federal securities law rests on a single word - \"material.\" Federal statutes and agency anti-fraud rules and disclosure requirements contain the term as an essential qualifier and identifier. \"Facts\" or \"information\" must be \"material\" before a legal obligation to disclose attaches. In other words, the term material has an unrivaled position in the center of all of securities law and agency rules and court decisions applying the term necessarily establish the fundamental scope and bite of securities regulation. A study of close to eight hundred cases in which a federal court’s applies the term to specific facts, however, finds that the case-law is, well, quixotic at best and fickle at worst. An argument on the proper breakdown of the cases is begun here.","PeriodicalId":219760,"journal":{"name":"University of Pennsylvania Journal of Business Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120946053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}