The Efficacy of Choice-of-Law and Forum Selection Provisions in Third-Party Litigation Funding Contracts

Anyone with an interest in litigation—parties and lawyers alike—must reckon with the implications of third-party litigation finance (TPLF). In short, TPLF involves financial investment in a lawsuit by a disinterested third-party in exchange for a share of the judgment. For many in the United States, litigation is cost-prohibitive, preventing them from obtaining civil justice. Since the advent of TPLF, it no longer must be the case that defendants with deep pockets can make plaintiffs’ cases disappear by burying them in legal fees. If there is a case with meritorious claims that also has the potential for a substantial judgment, third-party funders can provide plaintiffs with the opportunity to force a fairer settlement. Typically, a third-party funder will provide money for a litigant’s living and legal expenses during pending litigation and will only expect a return upon a successful verdict for the litigant. The commercial practice began in the late eighties and has blossomed into a multi-billion dollar industry involving large banks and hedge funds.

The Right of Publicity as Market Regulator in the Age of Social Media

The right of publicity is defined as a property right in one’s name and likeness, and stems from the idea that each of us should be able to wield control over how representations of ourselves are used by others. It is commonly associated with celebrities asserting commercial control over their identity. A recent example is that of singer Ariana Grande suing clothing brand Forever 21 for using photos of her to promote its products on the company’s social media accounts without her consent.

When a Picture is Not Worth a Thousand Words: Why Emojis Should Not Satisfy the Statute of Frauds’ Writing Requirement

In May 2016, Yaniv Dahan posted an online advertisement offering his apartment in Israel for rent. Shortly thereafter, an Israeli couple contacted Dahan to inquire about the apartment. The couple viewed the apartment twice over the course of the next month. On June 5, 2016, the couple sent Dahan a text message reading, “Good morning 😊 We are interested in the home 💃👯‍✌‍☄‍🐿️🍾 We just need to settle on the details . . . When does it work for you?” Relying upon an understanding that the couple intended to rent the apartment, Dahan took the apartment off the market. Thereafter, the couple was unresponsive to Dahan’s many attempts at scheduling a meeting to discuss the lease details and sign a contract. Eventually, contract negotiations terminated. On August 12, 2016, Dahan sued the couple in Israel’s Herzliya Small Claims Court alleging breach of contract. Dahan argued that despite not having signed a contract, the parties considered themselves to have a binding agreement.

Discrimination and Privacy Concerns at the Intersection of Healthcare and Big Data

In the age of the “Internet of Things,” where American adults spend nearly six hours a day interacting with digital media, questions and concerns arise regarding the growth of Big Data and its potential impact on privacy and data security. While there are significant concerns in many areas of privacy,
5 health privacy concerns are among the most foreboding. Traditionally, the zone of Americans’ health privacy has been highly legislated and regulated. Acts like the Genetic Information Nondisclosure Act (GINA), the Health Information Portability and Accountability Act (HIPAA), and the Health Information Technology for Economic and Clinical Health Act (HITECH) are all in part focused on the protection of Americans’ health privacy. But in the burgeoning world of Big Data, these acts have failed to keep up with the times, becoming porous shields over consumer health privacy.

Patent Eligibility and Investment

Have the Supreme Court’s recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors’ answers to those important questions. Analyzing responses to a survey of 475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court’s recent cases have influenced these firms’ decisions to invest in companies developing technology. The survey results reveal investors’ overwhelming belief that patent eligibility is an important consideration in investment decisionmaking, and that reduced patent eligibility makes it less likely their firms will invest in companies developing technology. According to investors, however, the impact differs between industries. For example, investors predominantly indicated no impact or only slightly decreased investments in the biotechnology, medical device, and pharmaceutical industries. The data and these findings (as well as others described in the Article) provide critical insight, enabling evidence-based evaluation of competing arguments in the ongoing debate about the need for congressional intervention in the law of patent eligibility. And, in particular, they indicate reform is most crucial to ensure continued robust investment in the development of life science technologies.

Buyer Beware: Variation and Opacity in ESG and ESG Index Funds

Evidence of the tremendous rise in the significance of environmental, social, and governance (ESG) investing is coming from all quarters. Fund flows into ESG investment vehicles are growing at a sustained and sometimes exponential pace. Fund complexes are rushing to design products, creating and rebranding scores of mutual funds and exchange traded funds (ETFs), including lower-cost indexed options. Industry leaders, critics, and commentators are all heralding the sea change as a shift in investing—and corporate governance—to more broadly consider environmental and social factors. This Article provides vital context for this conversation. Its descriptive account of the ESG investment landscape drawn from hand-collected 2018–2019 data on a sample of active and passive ESG and traditional funds documents great variation in their investment strategies, portfolios, voting records, and fees. The underlying variation across funds, however, is largely opaque to consumers—who rely on the ESG acronym at their peril. Building on our case study, we examine the supply and demand side drivers fueling ESG market growth, variation, and opacity, and explore mechanisms to better match high-ESG committed investors to high-ESG committed funds, including enhanced transparency and regulation of intermediaries.

Antitrust and Two-Sided Platforms: The Failure of American Express

Two-sided platforms serve two sets of customers and enable them to interact with each other. The five most valuable corporations in America—Amazon, Apple, Facebook, Google, and Microsoft—operate two-sided platforms. But despite their growing power, the Supreme Court’s American Express decision has made it harder to stop them from stifling competition. This Article systematically exposes the flaws in the Court’s reasoning and identifies the principles that should govern future cases. The Court’s most fundamental error was to require plaintiffs in rule of reason cases to make an initial showing of consumer harm that weighs the effects of the defendant’s conduct on both sides of its platform. This unprecedented approach will discourage antitrust litigation. It is also flawed antitrust policy because it allows a firm to exploit customers on one side of its platform to benefit customers on the other side. I argue that such conduct by a platform should only be permissible in the face of a market failure—an obstacle that prevents the market from maximizing consumer welfare. Without a market failure—and American Express (Amex) could not demonstrate one—competition will produce the optimal allocation of benefits across a platform.

Third-Party Interests and the Property Law Misfit in Patent Law

Courts and scholars have long parsed the characteristics of patent grants and likened them, alternately, to real or personal property law, monopolies, public franchises and other regulatory grants, or a hybrid of these. The characterizations matter, because they can determine how patents are treated for the purposes of administrative review, limitations, and remedies, inter alia. And these varied treatments in turn affect incentives to innovate. Patents are often likened to real property in an effort to maximize rights and allow inventors to internalize all of the benefits from their activities. And courts often turn first to real property analogies when faced with novel issues in patent law; yet they do not always end there. Sometimes, patents are public rights. Sometimes, they are protected by liability rules rather than property rules. And sometimes, a U.S. patent cannot stop the resale or importation of goods it covers. Patents are very much like real property, it seems, except for when they are not.

The International Claims Trade

Investments are mobile in the twenty-first century international economy. They are seldom held for their duration by a single owner from a single country. They change hands and they do so for a variety of reasons, often in the course of a dispute. But the scholarship addressing what happens when international investments and legal claims against sovereigns regarding those investments change hands appears only at the margins. The practice of buying and selling claims or claims trading is well known and institutionalized in some areas of domestic litigation. For cross-border investment disputes against sovereigns, however, many of the cases discussing claims trading seek to disguise themselves as addressing other legal issues, leading to a haphazard series of doctrines that tends to obscure the trade. The heightened visibility of all forms of external funding for claims against sovereigns has created challenges for tribunals and courts and for claimants who seek to recover on their investments. This Article analyzes the law of the international claims trade and asks what that law ought to look like in light of the theories and purposes of the international investment regime.

The Paradox of Automation as Anti-Bias Intervention

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as a heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic hiring and to explore potential legal approaches to rectifying them, the Article brings together two streams of legal scholarship: law & technology studies and employment & labor law.