BONDS THAT TIE: WILL A PERFORMANCE BOND REQUIRE THAT A SURETY DELIVER A CERTIFIED GREEN BUILDING
Darren A. Prum; Lorilee A. Meddersm, 9 Hastings Bus. L. J. 1 (2009)
As sustainable practices continue to sweep across the country, the federal, state, and local governments chose to further encourage the construction industry through various legislative and regulatory actions. In 2006, the city of Washington, D.C passed landmark legislation introducing green building requirements for various types of structures into the jurisdiction over a five-year period. A noteworthy aspect of the legislation is that it directed construction projects within the district to purchase green performance bonds up to $3 million to guard against a privately owned project's failure to meet its green building aspirations. Outside of the regulatory requirements associated with the construction of a green building, lawsuits may also occur between the participants of a project because the finished structure failed to attain a third party certification. Given the need by project participants to address the risks stemming from potential litigation issues or environmentally friendly governmental policies, the question remains whether performance bonds will provide sufficient coverage when a project fails to meet a sustainability objective, or if a separate instrument is needed to address the specific perils related to green buildings.
THE CASE AGAINST STATUTORY MENUS IN CORPORATE LAW
Daniel M. Hausermann, 9 Hastings Bus. L. J. 45 (2009)
The author challenges the view among corporate law scholars that state legislatures should enact menus of predefined statutory rules from which corporations may select the governance terms of their choice. The private sector has produced menus of contract terms, such as standard form contracts and model documents, long before the idea of statutory menus became fashionable. There is no evidence that the market for private menus has failed, and legislatures are unlikely to be efficient menu producers. Advocates of statutory menus have suggested a number of rationales, most notably considerations based on transaction costs, network and learning effects, bounded attention, or endogenous preferences. But at closer look, none of these justifications are plausible because, if nothing else, they equally apply to private menus. The existing statutory menus do, however, clarify that certain governance terms are legal in cases where this would otherwise be uncertain. Yet that uncertainty could be reduced by other legislative means than menus. For these reasons, menu production should be left to the private sector.
WHAT'S GOOD IN THEORY MAY BE FLAWED IN PRACTICE: POTENTIAL LEGAL CONSEQUENCES OF POOR IMPLEMENTATION OF A THEORETICAL SAMPLE
A. Lynn Phillips; G. Michael Phillips; Melanie Stallings Williams, 9 Hastings Bus. L. J. 77 (2009)
The article discusses the problem with the use of statistical sampling in litigation. Sample-based research is increasingly used in cases as diverse as products liability, antitrust, intellectual property, and criminal law. Sample based research provides objective evidence upon which decisions, damages, and liability may rest. Despite its importance, however, statistical evidence is often misused and misunderstood by attorneys who may be unfamiliar with the underlying form of analysis. The paper explores common errors when using litigative samples, comments upon best practices for the use in law of sample based research, and demonstrates the importance of sound statistical sampling and data collection in a recent case.
THE JOBS ACT: UNINTENDED CONSEQUENCES OF THE FACEBOOK BILL
Tyler Adam, 9 Hastings Bus. L. J. 99 (2009)
The jumpstart Our Business Startups Act ('"OBS Act"), in part, amended § 12(g) of the Securities Exchange Act of 1934. Originally enacted to impose mandatory disclosure requirements on non-reporting companies with a significant volume of trading, § 12(g) became dysfunctional due to changes in the market landscape. The JOBS Act amended § 12(g), first, by raising the shareholders of record threshold, and second, by excluding from the threshold number persons who received securities pursuant to certain employee compensation plans. This note argues that the JOBS Act's retooling of § 12(g) fails to adequately resolve fundamental problems with the rule. Specifically, the amendments will promote a dysfunctional standard for the mandatory disclosure triggering requirements, which will enable public companies to manipulate the rule. Additionally, it will reduce the number of IPOs, which is not the best policy for spurring job growth and economic growth. These unintended consequences can be avoided by changing the § 12(g) triggering requirements to a two-tiered approach that regulates the private and public spheres using different metrics. These metrics should reflect trading volumes and beneficial ownership of public and private companies, respectively.
FAIR COPYRIGHT LITIGATION: THE REVERSE CLASS ACTION LAWSUIT
Brain Noh, 9 Hastings Bus. L. J. 123 (2009)
By some estimates, more than 40 billion songs were downloaded illegally in 2008. In recent years, some copyright holders seeking to curtail copyright infringement have filed thousands of claims against individual end-users and peer-to-peer network operators. The resulting scenario, in some instances, has required plaintiffs to prepare settlement strategies against thousands of individual defendants who are often ill equipped to deal with such suits. This note addresses the inability of the copyright law regime to resolve such scenario, one of the growing problems of the information age. Specifically, the author proposes that the solution to these problems is found in Rule 23 of the Federal Rules of Civil Procedure, through what is described in this note as the reverse class action mechanism. By combining individual defendants in one suit, consumers can make litigation more economically feasible by combining their resources, simultaneously saving both plaintiffs and courts significant litigation related costs. Importantly, plaintiffs will be able to obtain court judgments against a bigger pool of individuals, potentially deterring more users down the line.