• The Dawn of the e-WTO

    by  • January 27, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho

    On the sidelines of the Davos World Economic Forum this week, seventy six WTO member countries agreed to launch a negotiation on electronic commerce.  Yes, we all know that e-commerce has recently been skyrocketing, becoming part of our everyday lives.  Meanwhile, the WTO has been criticized for having failed to provide effective multilateral rules to regulate e-commerce.  I see a bit of déjà vu from the Uruguay Round here, in particular within the context of the North-South tension.  Developed countries such as the United States, the European Union and Japan are spearheading this new initiative, while developing countries such as China and India seem to be lukewarm about the initiative.  China joined the initiative with the reservation that developing countries’ concerns must be reflected. India argued that the Doha Development Round must be addressed before starting a new set of negotiations in the WTO. (more…)

    The Resiliency of the WTO Dispute Settlement Mechanism (Or Not)

    by  • January 12, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on January 10, 2019]

    Many worry that the current United States–China trade wars, and negotiations therefrom, might undermine the WTO dispute settlement mechanism (DSM).  Curiously, however, both the United States and China have not completely bypassed the WTO DSM.

    In fact, both countries have invoked the WTO DSM in tandem with their unilateral/bilateral engagements outside of the WTO.  For example, China sued the United States for the latter’s punitive tariffs against the former (here and here).  The United States also filed a complaint against China regarding the latter’s alleged violation of TRIPS, in addition to its execution of the Section 301 procedure on the same complaint.

    One might surmise that the U.S.’ such actions are in contrast to its recent blocking of new Appellate Body members.  So, can we say comfortably that the WTO DSM is resilient?  Or, are these all about merely anteing up political rhetoric?

    Epic Systems v. Lewis: The Movements’ Time is More Clear Now

    by  • June 5, 2018 • 0 Comments

    photo of US Supreme Court by Matt Popovich

    by César F. Rosado Marzán In Epic Systems v. Lewis, Supreme Court Justice Neil Gorsuch and four conservative Justices determined that class action waivers are enforceable, not least because of the Federal Arbitration Act’s (FAA) strong protection of arbitration agreements. Class action waivers are enforceable despite the National Labor Relations Act (NLRA), which provides workers...

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    “Swatting” and Section 1983: Some Preliminary Thoughts

    by  • February 26, 2018 • 0 Comments

    by Professor Sheldon Nahmod

    Suppose, either as some sort of misguided prank or motivated by malice, an individual calls the police anonymously and informs them falsely that a man has killed his father and is holding other persons hostage at a particular address. Members of a police SWAT team arrive at the location in the early evening, surround the location and call on the man inside to come out. They also call out directions to the man–who apparently has no idea of what’s going on–to keep his hands up. However, for whatever reason the man appears to lower his hands and at that point one of the officers shoots and kills him.

    This is obviously a real tragedy. But I would like to make some preliminary observations about the section 1983 liability issues potentially arising out of these circumstances. (more…)

    Cert Granted in Lozman v. City of Riviera Beach: Section 1983 First Amendment Retaliatory Arrest Claims & Probable Cause

    by  • February 24, 2018 • 0 Comments

    by Professor Sheldon Nahmod

    Suppose a section 1983 plaintiff alleges that a city had him arrested in retaliation for the exercise of his First Amendment rights. He claims that he was arrested (although never prosecuted) at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act.

    Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim. What result? (more…)

    Prof. Shapiro: “Gerrymandering the Constitution: More than statehouse politics at risk”

    by  • October 2, 2017 • 0 Comments

    In advance of Tuesday morning’s Supreme Court oral arguments in Gill v. Whitford, Professor Carolyn Shapiro has published an opinion piece in The Hill outlining the dangers of “extreme partisan gerrymandering.” An excerpt from the introduction follows: The primary issue in Gill is whether partisan gerrymandering can be challenged in court at all and, if so,...

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    Financial CHOICE Act v. 2: Reducing Protections Against Systemic Risk

    by  • May 25, 2017 • 0 Comments

    By Alexander Dill Clearing Corporation Charitable Foundation Practitioner in Residence The nearly 600-page Republican bill to deregulate the financial markets moved forward in the House earlier this month, exiting the Financial Services Committee on May 4. Emboldened by the results of the 2016 election, the bill takes a considerably more aggressive approach than the...

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    Whistleblowing Update: Tone Deaf at the Top and Regulatory Lapses

    by  • April 27, 2017 • 0 Comments

    By Alexander Dill
    Clearing Corporation Charitable Foundation Practitioner in Residence

    Despite the fact (or perhaps due to the fact) that whistleblowing can be a very effective policing mechanism against wrongdoing, confidential employee hotlines often exist in obscurity, as a New York Times article pointed out concerning the Fox News Bill O’Reilly scandal. It cites one employment expert to the effect that companies often “bury information about how employees can file confidential complaints and for employees to be completely unaware of the existence of hotlines.” This is despite the fact that several federal laws require implementation of an effective whistleblowing compliance regime, ranging from Sarbanes-Oxley, the Dodd-Frank Act, and the SEC’s whistleblower rules. But it is one thing to mandate and another to create a culture of compliance that actively supports employees’ whistleblower rights. (more…)

    Prescriptive, “Rules-Based” Regulation Is Key to Enhancing Cybersecurity in Financial Institutions

    by  • March 10, 2017 • 0 Comments

    By Alexander Dill
    Clearing Corporation Charitable Foundation Practitioner in Residence

    There is much debate in the compliance community about the virtues and drawbacks of a “principles-based” versus a “rules-based” regulatory approach in ensuring effective compliance with regulatory obligations. On the one hand, in “principles-based” regulation agencies establish broad but well-articulated principles that a business is expected to follow. There is clarity about the regulatory objective, but not how to design and implement a compliance system that accords with it. (more…)