Emory Corporate Governance and Accountability Review

Volume 4Issue : Special
Presidential Inauguration Issue
Introduction

The New World of Electoral Politics and What It Means: An Introductory Essay

Reuben Guttman and Paul J. Zwier | 4 Emory Corp. Governance & Accountability Rev. 17 (2017)

The Emory Corporate Governance and Accountability Review (“ECGAR”) could not let this election cycle slip by without a substantive discussion of at least some of the issues that may be important to Americans, those who will serve as legislators, and the ranks of the new administration. The word “accountability” in our review’s name provides, where necessary, a broad mandate to discuss issues of public importance (although some of these issues may relate to corporations only tangentially). Discussions of the environment, global warming, labor and employment, and (by some accounts) our broken healthcare system are within the essays published here. This dialogue is merely the start of a larger conversation. Still, this Issue is the largest single Issue of any law review published by Emory University School of Law since its founding exactly a century ago.

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Essays & Interviews

Making America Equal Again: An Interview with Robert Ahdieh

Prasad Hurra | 4 Emory Corp. Governance & Accountability Rev. 21 (2017)

In an ECGAR interview, Dean Ahdieh gives his insight about the Equal Protection Clause and its implications regarding the upcoming administration. Specifically, Ahdieh discusses the increasing problem of income disparity between the rich and the poor, and how lack of interaction between different communities—such as urban and rural—have impacted the disparity.

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Stop-and-Frisk Under President-Elect Donald Trump’s Administration

Manny Arora | 4 Emory Corp. Governance & Accountability Rev. 31 (2017)

This Perspective addresses President-elect Trump’s comments on stop-and-frisk, the history of stop-and-frisk jurisprudence, and the potential impact that the reinstatement of stop and frisk can have on individual constitutional rights. The piece identifies and discusses crucial Fourth-Amendment opinions such as Terry, and the piece leaves the reader to ponder how the President-elect appointment power for U.S. Supreme Court justices can affect the overall trajectory of stop-and-frisk.

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A Call for Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability

Aloke Chakravarty | 4 Emory Corp. Governance & Accountability Rev. 37 (2017)

Civility is under attack in boardrooms, conference rooms, and courtrooms. Government officials, corporate officers, and litigators are uniquely suited to be a bulwark against expedience at the expense of ethics; it is time to insist upon the highest ethical and civil conduct in these public spaces. First, it is important to invest in an initiative to encourage cultures of ethics and civility in businesses and organizations. Second, government and industry groups should provide resources and encourage more robust ethics enforcement. Third, attorneys should aspire to be the model for civility and ethics. Increasing focus on ethical and civil behavior in the powerful organizations of the American fabric is likely to carry-over to an awareness of the importance of civility to the broader masses. Doing so not only makes business sense, but it is the right thing to do and the right time to do it.

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Conflicts of Interest and the President: Reviewing the State of Law in the Face of a Trump Presidency

M.C.E. | 4 Emory Corp. Governance & Accountability Rev. 47 (2017)

I’m very interested in the potential conflicts of interest between Donald Trump’s presidency and his companies. Unlike other presidents, rather than placing his assets in a blind trust, he has turned his companies over to his adult children—some of whom may also serve in his cabinet/other roles. While he says he will not be discussing the companies with them, (a) there is no way to enforce this, (b) he still knows enough about them to make decisions that could likely affect his companies in a beneficial way, and (c) won’t people dealing with his children (including foreign countries) assume they are inadvertently dealing with our president and thus be inclined to show them special treatment?

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Recommendations for Improving the Health Care System—Pharmacology

Stephen Z. Fadem | 4 Emory Corp. Governance & Accountability Rev. 61 (2017)

Dr. Fadem introduces the increasing problem of unaffordable pharmaceuticals, and addresses that issue by discussing how health care could constructively help patients gain more access to pharmaceuticals. Dr. Fadem accomplishes this goal by discussing the history of the FDA, the process of drug development, the manufacturing of drugs, and the marketing of those drugs. The Article also discusses how stricter regulations in the U.S. than abroad often punish the U.S. patient since the same drug sold overseas can cost double for the U.S. consumer.

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U.S.-EU Trade Barriers and the Transatlantic Trade and Investment Partnership Agreement

Lydia Ferrerese | 4 Emory Corp. Governance & Accountability Rev. 71 (2017)

Lydia Ferrerese explores the divergent opinions on whether U.S. trade agreements should be negotiated, renegotiated, or abolished entirely. Ferresese accomplishes this goal by discussing how low growth and increased competition fosters protectionist barriers, and fear of how the upcoming administration can have a negative effect on the Transatlantic Trade and Investment Partnership Agreement.

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FCPA Enforcement and Compliance Under Trump

Thomas R. Fox | 4 Emory Corp. Governance & Accountability Rev. 79 (2017)

Donald Trump has gone on the record as saying the Foreign Corrupt Practices Act (FCPA) is a “horrible law and it should be changed” and that it puts US businesses at a “huge disadvantage.” What does all of this and a Trump administration mean for FCPA enforcement and, more importantly, FCPA compliance going forward? The US Foreign Corrupt Practices Act has been shown to be the world’s leading tool in the fight against bribery and corruption. Any US company doing business outside the US is subject to the FCPA and must have an effective compliance program to be in compliance with the law. Yet this same law also protects US companies overseas in variety of ways, such as providing clear protections that US companies do business ethically and without resorting to bribery and corruption. The law also fosters US foreign policy, economic and legal interests abroad. FCPA enforcement and the compliance profession should not be eviscerated by the incoming administration as it is not in either the US government’s nor US business’s interest to do so.

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Labor in the Trump Years

Charlotte Garden | 4 Emory Corp. Governance & Accountability Rev. 95 (2017)

For Unions, the 2016 election changed everything. Instead of building upon the advances of the past eight years, Unions will be facing a Trump administration hostile to their interests. Under Obama, the NLRB took a broad view of worker’s rights. This included a pragmatic view on the fissured workplace, a widening of the statutory definition of “employee,” and “employer,” and increased enforcement of NLRA rights for non-union members. But now under Trump, unions will face a conservative supreme court likely to rule against unions. Unions will also face a Republican Senate and Congress looking to pass anti-labor legislation. All hope is not lost though, as a pro-labor message continues to resonate with the American public. Unions most now be able to transform public popularity in the message to popularity in policy.

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Employment Limbo—A Labor and Employment Law Perspective on the Transition from Obama to Trump

Patricia Griffith | 4 Emory Corp. Governance & Accountability Rev. 103 (2017)

Griffith explores how the President-elect’s new administration will effect key policy issues such as health care reform, the Department of Labor, and the National Labor Relations Board. Because President-elect Trump has a Republican Senate, it should be easier for him to implement his policies on these key issues. Until the new administration forges a plan regarding these key issues, employers will still operate under President Obama’s policy.

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Government by Contract: The White House Needs Capacity to Account for the Legacy of 20th Century Reform

Dan Guttman | 4 Emory Corp. Governance & Accountability Rev. 115 (2017)

The perspective explores the increasing roles that contractors play in policy implementation, from drafting rules, plans, and budgets, to writing statutorily-required reports to Congress. The author identifies the increasing problem of contractors—as opposed to elected officials—making such implementations, fearing that contractors lack accountability to the public.

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Jury Practice in Post-Truth America: A Cautionary Note

Richard A. Harpootlian and Christopher P. Kenney | 4 Emory Corp. Governance & Accountability Rev. 131 (2017)

Harpootlian argues that President Elect Donald Trump’s treatment of facts throughout the campaign presents cause for concern. Specifically, Harpootlian argues that the courtroom is designed to rely on evidence. Harpootlian worries that this reliance is threatened by the fact that President Trump flouted and ignored evidence which was unfavorable towards him. Harpootlian fears a similar disregard for evidence in favor of results driven decisions taking root in the courtroom.

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Money Talks

Barbara J. Hart and Christina McPhaul | 4 Emory Corp. Governance & Accountability Rev. 143 (2017)

For better or for worse, money speaks loudly. Companies and people respond to monetary incentives. As a result, change often is tied to spending money. Citizens have power to influence corporations by deciding when and where they will spend money. In light of this, Hart advocates for increased shareholder activism to continue to influence corporate decisions vis-à-vis social values.

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An Interview with Charles Holton

Prasad Hurra and Zalak Raval | 4 Emory Corp. Governance & Accountability Rev. 149 (2017)

Many important economic indices show that the economy has improved markedly under the Obama administration, but, there are communities that are still struggling with loss of jobs and housing. Courts are seeing an increased number of eviction cases presenting some very serious concerns, particularly for the tenants. However, the evictions can be reduced, and educating the judges, tenants and landlords is the first step. The struggling tenants can seek public funding or legal aid available in their counties that provide alternatives to eviction, but unfortunately, the cutbacks in funding to legal aid organizations have affected many states of late. On behalf of the Emory Corporate Governance and Accountability Review, Prasad Hurra and Zalak Raval interviewed Mr. Charles Holton, a partner in Womble Carlyle. This interview is about the legal battles of the individuals and the communities that have suffered the impact of homelessness.

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Conservative Mythology and the Supreme Court

Gregg Ivers | 4 Emory Corp. Governance & Accountability Rev. 157 (2017)

Trump has made a firm public commitment to overturn Roe and appoint “pro-life” justices, and he held out Antonin Scalia as his model Supreme Court justice. For almost fifty years, Republican presidential candidates have campaigned against the Supreme Court. Should President Trump have the opportunity to appoint two justices over the coming years, Chief Justice John Roberts will, more likely than not, find himself having to make decisions that are as strategically calculated towards maintaining the Court’s institutional prestige. Retracting rights is not something the Court does easily, if at all. For better or worse, the Constitution’s fate has been in the hands of a majority of Republican appointed justices since 1970 and that is not about to change anytime soon. It is important to see how Roberts will balance the competing forces in front of him.

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Hindu American Immigration Reform Priorities for the Trump Administration

Samir Kalra and Suhag Shukla | 4 Emory Corp. Governance & Accountability Rev. 179 (2017)

As the new Trump-Pence Administration prepares to take office in January, it must work immediately towards developing a robust policy agenda to address the most pressing domestic and international issues facing our country. Paramount among these is the urgent need to reform our immigration system in a manner that is humane and practical, and that simultaneously supports our economic and national security interests. This Article explains the importance of the Trump-Pence Administration and members of Congress to implement immigration policies, which address the concerns of the Hindu American community.

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The Workers’ President

Jonathan D. Karmel | 4 Emory Corp. Governance & Accountability Rev. 189 (2017)

Given Trump’s appointment of Puzder, and the numerous violations that Trump’s and Puzder’s businesses have in the past been assessed by OSHA, it is unlikely that a Trump administration will continue the pro-worker, pro-safety agenda initiated by the Obama administration. Instead, the advances in worker safety that cannot be undone by the Congressional Review Act (CRA) will be effectively undone by a weakened enforcement OSHA regime in an already under resourced OSHA. It seems apparent that American workers will be in a crisis under the Trump administration despite his campaign promises otherwise. However, crisis creates opportunity. Workers and their advocates must use the impending crisis to hold Trump’s feet to the fire and demand nothing less than the great jobs that he promised while posing as the Workers’ President.

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An Interview with Wilma Liebman: Liebman Knows Labor Law—The Future of the National Labor Relations Board

Samuel Feldman | 4 Emory Corp. Governance & Accountability Rev. 195 (2017)

Samuel Feldman interviews Wilma Liebman on the impact of president elect Trump’s presidency on labor relations and the National Labor Relations Board. Liebman, a former official with the NRLB, concludes that a Trump administration likely will translate into a more laissez-faire approach to employment issues. This approach, according to Liebman will empower businesses but may result in lower bargaining power for workers.

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Considerations for the Next Administration: Criminal Justice Reform and Prisoner ReEntry

J.C. Lore, III and Jason S. Kanterman | 4 Emory Corp. Governance & Accountability Rev. 201 (2017)

This Article explains the concept of prisoner reentry, which are Reentry programs that are designed to assist incarcerated individuals to successfully transition back into society after being released from prison. One critical component for reforming our system is through enhanced reentry programming and support: ensuring that offenders are provided adequate support and guidance post-incarceration, so that they may re-enter society as a contributing member of the global community. For the next administration, criminal justice reform will present an opportunity to implement rehabilitative justice through an investment of resources. The benefits of doing so appear clear—the community is safer when people are successfully reintegrated and precious resources are saved by not having to incarcerate those who don’t successfully reintegrate.

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Marijuana on Trial: Who Decides?

William Nettles and Prasad Hurra | 4 Emory Corp. Governance & Accountability Rev. 209 (2017)

This Essay addresses the tension between Federal and State level regulation of marijuana. Nearly a half century ago, under the Controlled Substances Act, Congress classified Marijuana as a Schedule One substance. Today, possession of marijuana, outside of limited research exceptions, remains a federal crime. Yet that has not stopped marijuana to be legalized, for medical and recreational reasons, in States across the country. As States legalize marijuana questions will remain because of the current Federal ban. Should banks lend money to the cannabis business, or are they putting themselves at risk? Uncertainty in the laws regulating marijuana use and sale will remain in the near future as State voters fight against Federal law.

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Against the Backdrop of President-Elect Trump’s Carrier Deal: The Breach of Fiduciary Duty Exposure Caused by Directing a Subsidiary to Undertake a Transaction for the Parent Company’s Benefit

O.C. Nwaeze | 4 Emory Corp. Governance & Accountability Rev. 219 (2017)

When Carrier, at then Presidential Candidate Donald Trump’s bequest, decided to keep 1000 jobs in Indiana, it did so at substantial economic costs. O.C. Nwaeze examines the millions of dollars in lost profit in terms of the fiduciary duty of Carrier’s board members to the shareholders in the company. However, given the ownership situation of Carrier, Nwaeze ultimately concludes that there is no breach of fiduciary duty.

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Environmental Law in the Trump Administration

Robert V. Percival | 4 Emory Corp. Governance & Accountability Rev. 225 (2017)

As Washington’s first outsider president, Mr. Trump has an opportunity to craft environmental legislation that balances both business and environmentalist. While it is too early to predict with confidence how environmental law will fare in the Trump administration, it is clear that it will be markedly different than it would have been if Hillary Clinton had been elected President. But because Trump truly is a Washington outsider who is beholden to neither of the two major political parties, he actually may have an opportunity to craft reforms that benefit both business and the environment. Whether or not he actually will do so is anyone’s guess.

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Medicine Meets Wall Street

Caroline Poplin | 4 Emory Corp. Governance & Accountability Rev. 237 (2017)

Dr. Poplin argues that profit incentives are out of place in a health care industry. One of the problems she points to is the western concept of medicine as care for the sick. Poplin proposes that a better potential approach is a more holistic health promoting system that attempts to keep people healthy before they get sick in the first place. She also argues that the health insurance market has inherently changed and that any future approaches will need to consider changes such as increase early screening and increased life expectancy with chronic illness.

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The Impact of a Trump Presidency on Criminal Law

Don Samuel | 4 Emory Corp. Governance & Accountability Rev. 249 (2017)

ECGAR asked Don Samuel to comment on the results of the 2016 Presidential Election. This Article elaborates on Samuel’s personal views regarding the Trump Administration in the following three capacities: (1) as a criminal defense attorney; (2) as a United States citizen; and (3) as a citizen of the world. Under each of the three sections, Samuel discusses sub-topics where he predicts substantial changes coming under the Trump Administration. Samuel will also comment on Trump’s Administration’s possible effect on corporate governance.

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A Wish-List from the Trenches of Health Information Technology

Sam Snider | 4 Emory Corp. Governance & Accountability Rev. 257 (2017)

The Article outlines Sam Snider’s personal wish-list items for Trump’s upcoming administration to address as it relates to information technology (HIT) systems. This approach consists of highlighting items that have the potential to yield significant benefits to the healthcare IT infrastructure, concentrating in four areas: interoperability, privacy/consent, cybsersecurity, and industry involvement. While the author admits that some of the items would be difficult to incorporate, they would, in essence, bring the Office of the National Coordinator for Healthcare IT (ONC) closer to achieving their vision: “high-quality care, lower costs, healthy population, and engaged people.”

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A Civil Justice System That Works for Working People

John Vail | 4 Emory Corp. Governance & Accountability Rev. 273 (2017)

Serial wrongdoers—generally, large corporations—have sought to make it more difficult to get into court and, if you get in, to make it more difficult to get cases before juries, the one decision-making institution they have not been able to buy. Their efforts have worked. Lay people decide cases increasingly less often. Power has been transferred from citizens to elites. The courts have been starved of funding. And jury trials are disappearing to the benefit of serial wrongdoers. The incoming administration and Congress profess to be on the side of working Americans. Here are three things they can do to make the civil justice system more fair: (1) feed the courts; (2) restore the original intent of the Federal Arbitration Act; and (3) Restore the power of juries.

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On Your First Day, President Trump, Please Repeal the Immunization of Gun Sellers Act

Frank J. Vandall | 4 Emory Corp. Governance & Accountability Rev. 281 (2017)

The purpose of this edition of the Emory Corporate Governance and Accountability Review is to suggest what needs to be done during the first few days of President Trump’s new administration. The first act should be the repeal of the Protection in Lawful Commerce in Arms Act (PLCA) (2005). In essence this is a ban on suits against corporations that manufacture guns. Gun manufacturers are the experts and need to be brought into the gun safety debate. When at fault, they should be held liable.

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Draining the Swamp Requires Robust Whistleblower Protections and Incentives

Jason Zuckerman and Tom Devine | 4 Emory Corp. Governance & Accountability Rev. 303 (2017)

The Trump Administration has promised to “drain the swamp,” combat corporate corruption, and root out waste, fraud, and abuse in the federal government. To achieve those laudable goals, the new Administration will need to appoint effective leaders to the agencies or subagencies charged with enforcing whistleblower-protection laws, and Congress will need to preserve and, indeed, enhance whistleblower protections in the public and private sectors. This Article provides a detailed agenda for the new Administration to ensure effective enforcement of federal whistleblower-protection laws and an agenda for Congress to plug significant gaps in whistleblower-protection laws.

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Challenges to Health Care Reform in 2017

Paul J. Zwier | 4 Emory Corp. Governance & Accountability Rev. 327 (2017)

The issue of health care in the US has been a huge challenge to fix. This Article by Paul Zwier provides analysis and policy proposals regarding the resistance to the health care reform. It will first briefly examine the problems the Affordable Care Act was trying to address. Next, it will describe the recent arguments in Congress against reform and what the nomination of Tom Price as head of the U.S. Department of Health and Human Services (DHHS) might portend for what is behind the Affordable Care Act’s (ACA) repeal. Lastly, Zwier will propose some potential policies that might be part of the reform that could help overcome this resistance.

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Afterword

Afterword: The Election, the Regulators, and the Regulated

Prasad Hurra, Nicholas Torres, and Sai Santosh Kolluru | 4 Emory Corp. Governance & Accountability Rev. 335 (2017)

This Voters’ Piece is a short Article based on the voters’ opinion of the results of the 45th Presidential election of the United States. In a surprising upset, President-Elect Donald Trump defeated Secretary Hillary Clinton. Prasad explains the history of Emory Corporate Governance and Accountability Review (“ECGAR”), re-tells the events surrounding the election night on November 8, 2016, and finally details the voters’ opinions regarding the result of the election. This Article concludes that no matter the results of the election, the regulated expect the Trump Administration to preserve, protect, and defend the American Dream with a renewed vigor.

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