Volume 4 / Number 2 / Summer 2000
This page contains the abstracts, as well as links to the complete document on Westlaw.com, for the Articles, Essays, Comments and Recent Developments of the Summer 2000 Issue.
The Goals and Process of Reorganizing Small Businesses in Bankruptcy
Brian A. Blum
Although the enhancement of creditor recovery is an important goal of bankruptcy reorganization, the rehabilitation of financially troubled businesses is aimed at achieving other socially and economically valuable ends as well. Where small businesses are concerned, these multiple benefits of bankruptcy reorganization have not been achieved as effectively as possible because of undue complexity in the procedure of Chapter 11 of the Bankruptcy Code. Court-developed means of ameliorating the problem have inspired several attempts at legislative reform during the past decade, but none have been enacted. The author argues that the proposed amendments to Chapter 11 now pending in Congress fall short of fully rationalizing the procedures for small business rehabilitation. Nevertheless, they do go a considerable way toward creating a more workable process for expediting and facilitating the successful reorganization of small businesses.
Transnational Small and Emerging Business in the World of Nikes and Microsofts
Henry H. Drummonds
This Article considers the nature and effects of an increasingly global labor market against a backdrop of recent protests in the United States. Globalization presents both opportunities and challenges for small and emerging businesses, which benefit from entrepreneurial adaptability, but which face increased competition. Global labor markets expose and expand concerns for establishing core labor standards to protect employees from abuse and denial of basic rights. However, the extent of these standards and the means for establishing and enforcing them have generated substantial debate. Most proposed mechanisms for establishing core labor standards involve governmental oversight. Ultimately, however, the standards will be most effective when established through private ordering of the workplace.
The Impact of Regulation on Small and Emerging Businesses
James L. Huffman
This Essay suggests a simple hypothesis about the impact of America’s regulatory state on small and emerging business: The past century of regulation has significantly disadvantaged small and emerging business relative to big and established business, resulting in significant losses in innovation and economic productivity and a widening of disparities in income and wealth. The author proposes to take the middle ground between the pro-regulatory and free-market camps by embracing the principle of subsidiary, which is the idea that certain regulatory functions are better performed at the local level than the national level.
No Remedy for Hostile Environment Sexual Harassment? Balancing a Plaintiff’s Right to Relief Against Protection of Small Business Employers
Kalley R. Aman
This Comment examines current federal and state remedies available to a private-sector employee alleging supervisory sexual harassment after the U.S. Supreme Court’s decisions in Faragher v. City of Boca Raton and Ellerth v. Burlington Industries. It begins by discussing the “reasonableness” standard for liability under Title VII announced in these decisions, then explores the various avenues of relief available under state law. The author ultimately argues that the limitations of current federal and state legal remedies for the sexually harassed employee are, in part, attributable to a greater governmental interest in protecting the small business employer from liability for these claims.
Coastal Erosion and the Risk of Liability for Coastal Land Developers
Recent catastrophes affecting coastal developments have spotlighted the potential liability of land developers for damage due to coastal erosion. This Comment traces the history of developer liability for real estate defects from its common law roots in the doctrine of caveat emptor, which forced buyers to shoulder the risk of loss, to the current trend toward expanded liability for developers and others. Throughout the Comment, the author illustrates his analysis with examples from recent Oregon cases involving property damaged during the El Nino weather event in 1998. The author discusses both contract and tort liability theories, concluding with an assessment of the issues that risk-averse developers and attorneys should investigate in planning a coastal development project.
Chilling of the Corn: Agricultural Biotechnology in the Face of U.S. Patent Law and the Cartagena Protocol
Cliff D. Weston
The recent completion of the human genome sequencing effort has yielded a base of information from which may spring untold inventions benefiting mankind. At the same time, advances have been made in engineering plants and animals used in agriculture, increasing food production, and reducing the labor and harmful chemicals formerly needed. Strong intellectual property protection is necessary to offset the enormous cost of research in these areas. This Comment reviews traditional sources of research and development funding for biotech firms, surveys a patent law landscape unfriendly to genetic inventions, and examines worldwide resistance to the employment of biotechnology in agriculture. The Comment concludes that potentially valuable biotech growth will be obstructed by these legal and cultural forces.
Technology and Related Law
Technology is playing an increasingly large role in nearly every facet of society. In recent years, technology-related legal issues have arisen that could have a substantial impact on small business. This Section highlights four legal issues that could affect the way a small business will structure transactions, interact with its customers, access the Internet, and shoulder technology-related expenses.