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Lewis & Clark Law Review

Volume 6 / Number 2 / Summer 2002

This page contains the abstracts, as well as links to the complete document on, for the Articles in our Summer 2002 Issue.




Privatizing Commercial Law: Lessons from ICANN
Gillian K. Hadfield
This Essay is the final piece from the 2001 Forum, Deciding ICANN Domain Name Disputes: Questioning Delegation, Fairness, and Consent, published in Volume 6, Number 1 of The Journal of Small and Emerging Business Law. It provides an analysis of privatizing commercial law in the context of the legal rulemaking and domain name dispute resolution vested in the Internet Corporation for Assigned Names and Numbers (ICANN). This Article suggests that modern market democracies should be exploring the possibilities for privatizing commercial law, both as a means of increasing the efficiency of commercial relationships and as a means of correcting for distortions in the way law deals with people and democratic values as opposed to corporations and economic values. Specifically, this Article examines (1) ICANN’s legal regime, (2) the privatization of law generally, (3) the principles that should be considered in exploring the potential for privatizing commercial law, and (4) the application of these principles to the operation of the ICANN domain name dispute system. Unfortunately, ICANN neither exploits its full potential for increasing the efficiency of the domain name system nor respects the appropriate boundary between what a private legal regime, from the perspective of democratic legitimacy, can and cannot do.




Impact of the 2001 Tax Act on Retirement Savings for Owners and Employees of Small Businesses
Richard J. Kovach
This Article examines whether the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) will in fact close the retirement savings gap between employees of small and large businesses as intended by Congress. First, the author outlines how Congress hopes the new EGTRRA retirement savings provisions will help close this gap. Second, the author explains why the new provisions will not achieve Congress’s intended effect. Finally, the author concludes that the retirement savings scheme needs to be reformed, because it fails to maximize individual choice in retirement planning, hinders the economic efficiency of small businesses, and misguidedly places paternalistic responsibility on employers to provide retirement income for their employees.




Employer Beware? Enforcing Transnational Labor Standards in the United States Under the Alien Tort Claims Act
Sarah J. Adams Lien
The Alien Tort Claims Act (ATCA) arguably allows non-U.S. citizens to bring claims for violations of customary international law (CIL). Although CIL litigation typically embraces only egregious human rights violations, the scope of CIL actually encompasses all universally recognized rights, including some labor rights. This Comment explores the possibility that the ATCA may be used to litigate claims by non-U.S. citizens alleging violations of international labor rights. It concludes that the Act likely provides a vehicle for aggrieved employees to bring suit in U.S. court for violations of international labor standards. Finally, this Comment recognizes that ATCA litigation may benefit owners of small businesses. By holding U.S. and other employers operating in developing nations to an international labor standard, the ATCA may act to level the playing field between domestic companies and companies operating abroad.

The AOL-Time Warner Merger: An Analysis of the Broadband Internet Access Market
Aaron M. Wigod
On January 10, 2000, America Online, Inc. executed a 3 billion takeover of Time Warner, Inc., creating the newly formed holding company AOL-Time Warner Inc. At that time, the merger was the largest in corporate history. The merger combined America Online, the world’s dominant Internet Service Provider (ISP), with the distribution channels, media, and entertainment brands of Time Warner. The merger resulted in tremendous telecommunications implications, challenging regulatory agencies and the antitrust laws to ensure consumer access to competitive broadband Internet access markets. Although the Federal Communications Commission and Federal Trade Commission unanimously approved the merger with concessions that lessen the illegality of the merger, the concessions do not go far enough in creating a naturally competitive market for residential broadband Internet access. Such lack of competition is detrimental to consumers and small business ISPs.

The Barnett Paradox: Icarus’ Wings
Melissa M. Chureau
This Comment explores the potential difficulties employers face in meeting their statutory obligations under the Americans with Disabilities Act (ADA) when an employee exhibits symptoms of a latent disability, such as alcoholism, drug addiction, or a mental disorder. The ADA prohibits employers from discriminating against an individual who is either actually disabled or “regarded as” disabled by an employer. If the employer takes any affirmative actions to accommodate these employees, it risks exposing itself to liability under the ADA. This Comment examines the tension between the employer’s duty to initiate the accommodation process and the employer’s desire to avoid liability under the ADA. It criticizes specifically the solution postulated by various courts to the problem of whether the employee or the employer should bear the burden of initiating the accommodation process. Finally, this Comment suggests a new approach to the problem that better reflects the policies and purposes behind the ADA.


Recent Developments


Proposed Reforms to the Regulation of 401(K) Plans in the Wake of the Enron Disaster
Marisa Rogoway
This Note examines the current regulation of 401(k) plans in light of the collapse of Enron. It discusses proposed reforms to 401(k) regulation and the effects of these reforms on small businesses. The Note concludes that small businesses need to be aware of the issues and potential reforms surrounding 401(k) plans in order to respond quickly to regulatory changes.

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