Villanova law review最新文献

{"title":"The Internet of Platforms and Two-Sided Markets: Implications for Competition and Consumers","authors":"R. Frieden","doi":"10.2139/SSRN.2935292","DOIUrl":"https://doi.org/10.2139/SSRN.2935292","url":null,"abstract":"This paper will examine developments in the Internet marketplace that limit and condition access in light of growing incentives to offer prioritized management and delivery at a premium price. Commercially-driven interconnection and compensation arrangements support biased networks rather than open ones. Single ventures, such as Amazon, Facebook, Google and Netflix have exploited, “winner take all” networking externalities resulting in the creation of dominant platforms and walled gardens. Advocates for network neutrality claim that limited and “pay to play” access will threaten a competitive marketplace of ideas by imposing higher costs on unaffiliated, disfavored and cash-poor content providers. Opponents argue that Internet Service Providers (“ISPs”) should have the flexibility to customize services and accrue marketplace rewards for superior products and services. \u0000The paper identifies four types of government responses to price and quality of service discrimination that can exploit, or remedy choke points within the Internet ecosystem where large volumes of traffic have to traverse a single ISP network, or service provider platform. Governments can refrain from regulating access and accept aspects of market concentration as proper rewards to ventures offering desirable content and carriage services. Alternatively, they can impose access neutrality requirements to offset harmful discrimination and market dominance. Between these poles, governments can apply antitrust/competition policy remedies, or rely on expert regulatory agencies to respond to complaints. \u0000The paper examines case studies where ventures have created walled gardens and platforms as an intermediary between consumers and content providers. In some instances, government-imposed remedies offered a solution to a transitory, or possibly nonexistent problem. In other instances, governments have created an administrative process for responding to complaints and resolving valid disputes. \u0000The paper concludes that governments should have a duty to remedy marketplace distortions generated by firms operating platforms in an anticompetitive manner. Rather than anticipate such an outcome, governments should offer remedies when and if they receive valid complaints documenting harm to consumers and competitors. Additionally, regulators should implement robust transparency and truth in billing safeguards that possibly can prevent most conflicts, or help identify practices that harm consumers and competitors.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"63 1","pages":"269"},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2935292","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48843940","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":"Public Participation in Nonlegislative Rulemaking","authors":"Aram A. Gavoor, Daniel Miktus","doi":"10.2139/SSRN.2878267","DOIUrl":"https://doi.org/10.2139/SSRN.2878267","url":null,"abstract":"Administrative law presently allows for members of the public to be the subject of arbitrary governmental enforcement proceedings based on rules that are promulgated by a semi-accountable federal bureaucracy. Many nonlegislative rules, rules that are interpretive in nature or provide general policy statements, are lawfully issued under the Administrative Procedure Act without advance public notice or public participation. The proliferation of administrative power and the growing procedural attractiveness of nonlegislative rulemaking as a tool to promulgate rules of increasingly legislative quality has created a tension between administrative agencies’ ability to promulgate rules that can only, if at all, be challenged in the context of adjudication and the public’s right to participate in the rulemaking process. A practical and underutilized mechanism that permits the public to facially challenge such rules is the petitioning provision of the Administrative Procedure Act. The literature does not address this issue in-depth. This Article makes the case for the public’s right to petition agencies for the issuance, amendment, or repeal of nonlegislative rules, and likewise examines the various avenues of judicial review that are available to enforce this right.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"61 1","pages":"759-794"},"PeriodicalIF":0.0,"publicationDate":"2016-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68412570","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":"Governing the Gradient: Clarity and Discretion at the Water's Edge","authors":"J. Colburn","doi":"10.2139/SSRN.2816484","DOIUrl":"https://doi.org/10.2139/SSRN.2816484","url":null,"abstract":"In promulgating the Clean Water Rule of 2015, U.S. EPA and the Army Corps of Engineers responded to more than a decade of legal turmoil and calls from all quarters that they clarify their Clean Water Act (CWA) jurisdiction. The rulemaking combined the agencies’ response to four decades of judicial precedent with a massive gathering, sorting, and interpreting of the available scientific evidence describing the composition and functioning of the Nation’s “waters.” The resulting exclusions and inclusions by rule will clarify several jurisdictional boundaries. But the rule leaves certain decisive concepts, especially the notion of a tributary and the connectedness of aquatic systems, open to individuated findings of fact — findings that inevitably involve agency discretion. This article articulates and responds to the gravamen of the legal challenges to the rule now being litigated in several federal courts. Some subset of those claims is likely to reach a Supreme Court very different from that which last heard two CWA jurisdictional challenges a decade ago. In the end, the article argues that the rule is a compromise all would be wise to accept.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"62 1","pages":"81-133"},"PeriodicalIF":0.0,"publicationDate":"2016-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68349810","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":"Contractual Mechanisms of Investor Protection in Non-Listed Limited Liability Companies","authors":"S. Gomtsian","doi":"10.2139/SSRN.2710558","DOIUrl":"https://doi.org/10.2139/SSRN.2710558","url":null,"abstract":"Limited liability companies (LLCs), although introduced only in early 1990s, are the second most popular organizational form of business in the United States. Their rise is changing the traditional governance structures and investor protection mechanisms used in firms. Given the default nature of almost all provisions of the LLC statutes, the founders can form LLCs that either replicate typical governance structures of corporations or waive any or all long-established investor protection rights, including fiduciary duties of members and managers. In the absence of minimum corporate governance requirements of disclosure and monitoring, strong market disciplining, and liquid markets for LLC units, contractual mechanisms of investor protection are expected to play important role in non-listed LLCs. This study analyzes the operating agreements of almost 300 non-listed LLCs with two and more members formed in Delaware to establish the demand for freedom of contract in LLC governance and examine the practice of investor rights in closely-held LLCs. An LLC operating agreement contains provisions typically found in corporate bylaws and shareholders’ agreements. All agreements in the sample were coded based on a scorecard containing 84 questions affecting investor rights. The results confirm the main hypothesis that in the case of changing default statutory rules the parties used contractual substitutes which ensured equivalent protection and, in many cases, increased clarity and reduced incentives for ex post speculative litigation. Furthermore, the choices of governance structures and investor rights were strategic as they tended to differ depending on the underlying conflicts of interests. Thus, the strong contractual freedom of LLCs, at least in large companies, brings more benefits than risks for the firm members. The results of the study provide drafting reference points for the members of smaller firms and can be informative for courts and legislatures in the ongoing debate on the nature of fiduciary duties in non-corporate business organizations.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"60 1","pages":"955-1012"},"PeriodicalIF":0.0,"publicationDate":"2016-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2710558","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68266382","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 Common-Law Exceptions Clause: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent","authors":"D. Birk","doi":"10.2139/SSRN.2667989","DOIUrl":"https://doi.org/10.2139/SSRN.2667989","url":null,"abstract":"This article revisits the literature on Congress’s ability to control the jurisdiction of the Supreme Court. It finds evidence that the well-known references in Article III to “exceptions” and “regulations” were legal terms of art in pre-1789 British law. An examination of the case law demonstrates that English and Scottish supreme courts always retained a certain quantum of supervisory jurisdiction over inferior courts, even when Parliament made an “exception” or “exemption” (a synonymous term) to the supreme court’s appellate jurisdiction. This quantum of supervisory jurisdiction extended not only to the power to enforce adherence to the supreme court’s prior precedents, but also to the power to resolve differences of opinions among courts as to statutory interpretations (something we often now encounter in the context of “circuit splits”) and to correct obvious misinterpretations of the law and fundamental denials of due process rights.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"63 1","pages":"189"},"PeriodicalIF":0.0,"publicationDate":"2015-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68248178","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":"Changing Course in the Anti-Domestic Violence Legal Movement: From Safety to Security","authors":"M. Johnson","doi":"10.2139/SSRN.2579639","DOIUrl":"https://doi.org/10.2139/SSRN.2579639","url":null,"abstract":"This Article examines how the pursuit of domestic violence policy’s limited goal of safety, primarily focused on short-term physical separation to decrease physical intimate partner violence, is both too broad and too narrow a goal. Although being safe and free from violent harm is important, there is a difference between the woman subjected to abuse choosing to employ actions to be free of harm, and the state requiring the woman to physically separate from her abusive partner. In addition, there is a difference between the many ways she may act in order to reduce harm to herself -- such as having control over her own finances -- and the almost one-size-fits-all way in which the state says she should act to create safety -- physically separating from her partner. As a result, a woman’s own agency and dignity can be undermined in pursuit of what is deemed safe by others. This is despite the research that shows supporting a woman's agency is one of the best ways to decrease domestic violence. In addition, the focus on safety has excluded the expenditure of resources in support of addressing abuse other than physical violence, addressing short-term harms caused by abuse other than physical violence and long-term harms caused by all forms of abuse, and providing options beyond short-term responses to the immediate crisis. With too few short- and long-term options, women subjected to abuse are left with very little choice about how to address the violence in their relationship during and after a crisis has passed. This Article argues for domestic violence policy, which shapes the civil legal system and government funding criteria through the Violence Against Women Act (VAWA) and other sources, to focus on security instead of safety. Security incorporates all forms of abuse, including physical, sexual, emotional, psychological and economic, focuses on all harms that result from these varying forms of abuse, identifies short and long-term responses that enhance the economic, housing, health and relationship security of the person subjected to abuse and ensures that such the person subjected to the abuse is the decision-maker as to the appropriate responses to the abuse.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"60 1","pages":"145-202"},"PeriodicalIF":0.0,"publicationDate":"2015-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211810","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":"MOOCs and Legal Education: Valuable Innovation or Looming Disaster?","authors":"Philip G. Schrag","doi":"10.2139/SSRN.2278261","DOIUrl":"https://doi.org/10.2139/SSRN.2278261","url":null,"abstract":"Massive open online courses (MOOCs) have spread across the landscape of higher education like an invasive plant species. Although few people had heard of MOOCs before 2012, these internet-based courses, taught by university professors, are now routinely offered simultaneously to tens of thousands or in some cases, hundreds of thousands of people. Most MOOCs are still provided free of charge, but the two companies and one non-profit entity that promote MOOCs and provide the software have recently created partnerships with institutions of higher education in order to realize substantial revenues by offering MOOCs for academic credit to tuition-paying students at colleges and universities. Despite resistance from professors at some institutions, MOOCs for credit are proliferating rapidly. This development has great significance for the future of legal education, because most law schools are experiencing an economic crisis and are searching for ways to cut costs and lower tuition so that they can fill their classes and remain viable. Already, some law schools are offering academic credit for distance learning, within limits permitted by the Section of Legal Education of the American Bar Association — limits that may soon be relaxed. Within ten years, MOOCs could replace traditional law school classes altogether, except at a few elite law schools that produce lawyers to serve large corporations and wealthy individuals. However, most law schools might survive by embracing rather than resisting internet-based learning. They could cut costs by reducing faculty and staff positions, using MOOCs for the delivery of most of the legal information that students need, hiring part-time lawyers to help students with exercises to supplement the MOOCs, and concentrating the remaining full-time faculty on first-semester offerings, writing seminars, and clinics. Sadly, the result will be a watered-down form of legal education compared to the three years of interactive experiences that law schools have offered students for the last century. But it may be the only way in which most law schools can survive.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"59 1","pages":"83"},"PeriodicalIF":0.0,"publicationDate":"2013-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68057408","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":"Cadbury Twenty Years On","authors":"Cally Jordan","doi":"10.2139/SSRN.2099820","DOIUrl":"https://doi.org/10.2139/SSRN.2099820","url":null,"abstract":"This year marks the twentieth anniversary of the publication of the Cadbury Report, one of the most significant events in modern corporate governance. The Cadbury Report, and its simple two page 'best practices', triggered a global debate on corporate governance. 'Cadbury' codes of corporate governance spread like wildfire. The legacy of the Cadbury Report lives on in the UK with no diminution in the appeal of its voluntary code/comply or explain approach to corporate governance. But there are several clouds looming on the horizon. Comply or explain and voluntary codes of corporate governance appear to have run their course elsewhere in the world. Even in the UK, legislative initiatives on the corporate governance front, either domestically initiated or EU-driven, may be sapping the voluntary code of its vitality. Although the conviction remains strong in the UK that the flexibility and opportunity for easy, rapid adjustments are strengths of the voluntary code approach to corporate governance, the constantly evolving nature of the UK voluntary codes may, in fact, be an indication of a deep-rooted problem. Are these voluntary codes of corporate governance, which give so much deference to industry sentiment and conventional wisdom, in a constant state of flux because they are not getting it right?","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"58 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2012-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2099820","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67909850","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":"M&A Fiduciary Duties: Delaware's Murky Jurisprudence","authors":"D. Morrissey","doi":"10.2139/SSRN.2070189","DOIUrl":"https://doi.org/10.2139/SSRN.2070189","url":null,"abstract":"The article deals with the fiduciary duties of corporate officials in mergers and acquisitions, particularly as they have been defined by the Delaware Courts. It focuses on judicial decisions over the last several decades and includes a discussion of some of the most recent significant ones.The article also describes how those duties may vary depending on the type of corporate event that is occurring and contains commentary on the nature of those obligations. Where corrupt activity is present or there is no showing that these transactions are in the public interest, they should not be permitted to go forward. If Delaware Courts are not willing to stop them, the article proposes a system of more meaningful review to accomplish that.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"58 1","pages":"121"},"PeriodicalIF":0.0,"publicationDate":"2012-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67897547","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 Rise of the Common Law of Federal Pleading: Iqbal, Twombly, and the Application of Judicial Experience","authors":"Henry S. Noyes","doi":"10.2139/SSRN.1856309","DOIUrl":"https://doi.org/10.2139/SSRN.1856309","url":null,"abstract":"With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. The requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime, just like the new plausibility standard. Second, the application of judicial experience – as intended by the Supreme Court – requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to involve a subjective analysis of the plausibility of a claim. Instead, the Supreme Court intends district courts to consider a larger, objective body of experience – beyond the subjective experience of any particular district court – with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. The Court has expressly denied that plausibility “require[s] heightened fact pleading of specifics,” but what plausibility means is informed by judicial experience. Sometimes plausibility requires more convincing facts (not more specific facts). Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage – even where it is based on objective information – is inappropriate and inconsistent with the adversarial nature of litigation.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"56 1","pages":"857"},"PeriodicalIF":0.0,"publicationDate":"2011-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67761362","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}