Terence Lau

Executive Noncompetes: Keeping Talent in House or At Bay?

Terence Lau — Sun, 05 Feb 2012 14:02:25 PST

Towards Zero Net Presence

Terence Lau — Sun, 20 Mar 2011 16:57:32 PDT

The rise of social networking has connected us in ways unthinkable a few years ago, but has also raised alarming questions regarding the right to be left alone. More and more, Americans are discovering that information traditionally considered private is moving into the public domain, sometimes with startling implications for their personal lives. Part I of this Article reviews the problem of Internet intrusion into personal privacy. The Internet is especially remarkable for its three central features: reach, speed and permanence. These features make the Internet unlike any other media in existence, and makes protecting privacy extremely difficult. Part II reviews existing remedies to protect privacy, both legislative and common law, and highlights the shortcomings in such remedies. Finally, Part III of the Article argues that the time has come for a re-thinking of the parameters of online privacy, and calls for the adoption of a new individual right, “Zero Net Presence.” In the right circumstances, any citizen who wishes it should have the right to demand that private companies scrub any information on that citizen from the Internet itself. If the right to privacy is to remain meaningful in the hurricane of technological advance, an immovable shelter must be built now, and it must be constructed in law.

Do Rigid Labor Laws Mean Higher Unemployment in Developing Countries?

Terence Lau — Fri, 10 Jul 2009 11:07:26 PDT

Judicial Independence: A Call for Reform

Terence Lau — Tue, 17 Mar 2009 05:59:21 PDT

According to retired Justice Sandra Day O’Connor, judicial independence is threatened now more so than any other time throughout history. Attacks on the judiciary have crossed the line from legitimate criticism to partisan harangues that threaten the ability of judges to rule fairly and without bias. This Article begins with a historical look at judicial independence as it has shaped the Supreme Court, including the impeachment of Samuel Chase, Ex ParteMcCardle and the court-packing plan and concludes with a call for reform to the judicial appointment process to permit greater transparency in judicial selection.

Courting Success: The Supreme Court Fellows Program at 35

Terence Lau et al. — Thu, 04 Dec 2008 12:51:55 PST

In 1979, PS published an article called "Inside the Courts: The Judicial Fellows Program." The article detailed the genesis and early history of the program, its initial funding, the selection process, the fellows' experiences, and their post-fellowship careers. At the time the article was published, the fellows program had existed for six years and counted 14 participants. Twenty-nine years later, the ranks of fellows has swelled to 104, an increase of 87%. Other than a name change in 2003 to the "Supreme Court Fellows Program," what has changed to the program in the three decades since that article was published? Based on an original survey of Supreme Court Fellows Program (SCFP) alumni, this article offers a look at the SCFP at 35, and offers reflections on the utility of the Supreme Court fellowship for political scientists and others with a particular interest in public law.

Observations on the Folly of Using Student Evaluations of College Teaching for Faculty Evaluation, Pay, and Retention Decisions and Its Implications for Academic Freedom

Terence Lau et al. — Thu, 04 Dec 2008 12:42:24 PST

Research on student teaching evaluations is vast. An examination of this research demonstrates wide disagreements but also substantial consensus of authority for the proposition that student evaluations should be used only with extreme care, if at all, in making personnel decisions. A number of reasons cause administrators to use teaching evaluations for personnel decisions. The literature, however, is virtually unanimous in its condemnation of norming student evaluations in order to rank classroom performances. Current cases on academic freedom indicate some retrenchment by the Circuits from broader pronouncements in earlier Supreme Court cases. This paper concludes that the use of non-validated student evaluations alone without any other criteria for teaching effectiveness raises substantial problems in faculty retention and promotion decisions. It also suggests that such an approach in the right case might violate academic freedom and the First Amendment.

Management and Market Reactions to Litigation: Do Shareholders Win When the Company Loses?

Terence Lau — Thu, 04 Dec 2008 12:35:50 PST

This research brief summarizes a study on how markets react to settlements and judgments. Prior research suggests that when companies refuse to settle and instead take on litigation, they are rewarded by markets even when they lose the case. Why this occurs has tremendously important significance for senior management.

Distinguishing Fiction from Reality: The ASEAN Free Trade Area and Implications for the Global Auto Industry

Terence Lau — Thu, 04 Dec 2008 12:31:47 PST

This Article explores the ASEAN Free Trade Agreement ("AFTA") and its implications for the regional and global auto industry. Section I of this article provides a brief history of ASEAN and its attempts to integrate regionally. It outlines the reasons for regional economic integration, and traces the current literature in this area. Section II provides an overview of the current auto industry in each of the major auto-producing countries in ASEAN: Thailand, Philippines, Indonesia, Vietnam, and Malaysia. It will also explain Malaysia's protected auto industry and Malaysia's attempts to delay implementation of AFTA, and its neighboring countries' reactions. Section III will describe the very first exchange of completely built-up vehicles ("CBU") within ASEAN under the precursor to AFTA, the ASEAN Industrial Cooperation Scheme ("AICO"), and its implications for the future of ASEAN. Section IV will expand on the concept of economic integration by describing current efforts by the auto industry to integrate, thus reducing its costs, increasing quality, and increasing consumer choices. Finally, Section V of this Article will draw some conclusions about the lessons learned from the auto industry's experience with AFTA, and will suggest that further economic integration will provide ASEAN with a credible and stable path to future growth even as the ascendant China continues to draw foreign direct investment from the region.

Can You Hear Me Now? Corporate Censorship and its Troubling Implications for the First Amendment

Terence Lau et al. — Thu, 04 Dec 2008 12:23:51 PST

The day when standing on a soapbox in a public park was an effective way to voice one’s dissent has passed. In this paper we argue that enormous disparities in economic power allow powerful corporations to silence opinions that they consider unfit for public dissemination. In commercial speech, the U.S. Supreme Court has in the past two terms handed down decisions dealing with “coerced speech.” Another problem in commercial speech is “coerced silence” or “coerced ignorance.” The paper begins with the Supreme Court’s doctrine that the First Amendment protects both the speaker’s right to speak and the public’s right to hear. Metaphorically, the channels of free speech in this country are pipelines that connect opinion makers with the American public. Increasingly, the control of pipelines resides in fewer and fewer hands, allowing economically powerful interests to either filter or censor the information. This threatens both the efficient running of a free market and the political freedoms inherent in American democracy. The authors call this phenomenon “corporate censorship.” Examples include an outdoor advertising company canceling Schirf Brewing Co.'s Polygamy Porter campaign and large companies threatening lawsuits to derail the publishing of academic research unfavorable to corporate interests. We suggest a public good approach to the First Amendment will provide a greater diversity of voice. We conclude, "The pursuit of profits with no concern for the flourishing of either the polity or the free market is shortsighted and, ultimately, counterproductive."

Triggering Parent Company Liability Under United States Sanctions Regimes: The Troubling Implications of Prohibiting Approval and Facilitation

Terence Lau — Thu, 04 Dec 2008 12:09:50 PST

This article examines three issues surrounding the liability of U.S.-based companies with foreign subsidiaries or affiliates incorporated in countries where trade with U.S.-sanctioned countries is permissible. First, the article examines the statutory bases for economic trade sanctions and the OFAC-issued implementing regulations, namely the Trading with the Enemy Act (TWEA) and the International Emergency Economic Powers ACT (IEEPA) and how these statutes grant extraterritorial authority to OFAC. Second, the article explores regulations promulgated by OFAC that prohibit parent company "approval" or "facilitation" of transactions by such affiliates or subsidiaries, and how such regulations indirectly extend the reach of U.S. sanctions to the conduct of foreign subsidiaries and affiliates. Third, the article suggests that OFAC's broad and sweeping interpretations of the statutes implementing economic embargoes has resulted in the inability of U.S-based companies to comply with the spirit of that embargo, and that changes should be implemented by OFAC, or Congress if necessary, to ensure compliance.

A Preliminary Inquiry Into the Attitudes Toward Work that Should be Fostered by Socially Responsible Employers

Terence Lau et al. — Thu, 04 Dec 2008 12:02:03 PST

Part I of this paper traces the evolution of modern attitudes toward work. Part II traces the jurisprudence of attitudes towards work as reflected in the common and statutory law. Finally, Part III attempts to sketch the outlines of an attitude toward work that should be embraced beneficially by socially responsible employers.

Caveat Emptor: Lessons from Volkswagen's Lemon Purchase

Terence Lau — Thu, 04 Dec 2008 10:27:41 PST

This article traces Volkswagen's mis-steps in the botched acquisition of Rolls Royce, and solutions are offered for counsel engaged in international transactions with the hope that the practitioner with little experience in the area can avoid similarly embarrassing and costly errors. The article also offers recommendations on how to draft contract clauses for international licensing use, and provides a brief overview of export control regimes counsel should be aware of when engaging in international transactions.

Take Two Tablets and Do Not Call for Judicial Review Until Our Heads Clear: The Supreme Court Prepares to Demolish the 'Wall of Separation' Between Church and State

Terence Lau et al. — Wed, 10 Sep 2008 15:29:51 PDT

In this Article, we examine the issues that bring First Amendment jurisprudence to the grant of certiorari in Pleasant Grove v. Summum, scheduled for oral argument in the Supreme Court of the United States in November. We examine the historical basis for America’s religious heritage, the historical judicial treatment of the religious clauses, and the erosion of the wall of separation between church and state. We examine the Ten Commandments, finding inherent discrimination present in modern-day attempts to advance a particular version of the Ten Commandments as secular. By drawing upon Rousseau’s civic religion, we suggest alternative routes for the Court to pursue in similar cases in the future, including a resolution on the vexing questions posed by Summum and the monument in Pleasant Grove. We argue that in light of America’s increasing religious diversity and our rising religious intolerance, the Supreme Court should set aside an article or two of conservative ideology in order to better serve the long-term interests of an increasingly diverse American people.