Toward a Controlling Shareholder Safe Harbor

Therapeutic Transgene Expression From Genomic Safe Harbors In Patient-Specific Induced Pluripotent Stem Cells

This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern. There are three principal objections to the safe-harbor approach. The first is that the standard may be set too low – that employers will be given a safe harbor when reliance on conventional antidiscrimination activities would yield the same employment outcomes for the workers in question. Stating the point in the somewhat different way, the concern is that the safe harbor will increase the incentive for noncompliance.This kind of objection has less force in the present context because the safe harbor, under this proposal, would be available only for chronically unemployed or underemployed individuals in high-risk groups. Promulgation would occur only after considerable experience with conventional antidiscrimination enforcement. The second objection is a moral objection – that a safe-harbor approach recognizes and legitimates discrimination against individuals in the high-risk group. There is, of course, some force to this point but it ignores the fact that the underlying objective of the law is to promote the employment of individuals from discriminated-against groups. In addition, after the probationary period, the full force of the antidiscrimination laws will be restored.The third objection is based on the projected inutility of the safe-harbor approach. Here, the argument is that employers will hire strategically to take advantage of the probationary period with no intention to retain these employees as potential regular employees at the end of that period. This is largely an empirical objection to be evaluated in the course of actual experience with safe-harbor induced probationary employment. In addition, it is difficult to understand what benefits would accrue to the employer in engaging in such a strategy. Hiring a new employee always entails training and workforce-integration costs, which most employers will not want to incur unless they hope to recoup that investment over the course of sustained employment.This is a preliminary look at the potential benefits of a “safe harbor” approach to antidiscrimination goals. Creation of carefully cabined regulatory safe harbors for hiring employees from high-risk categories has the potential to spur improved utilization of such employees with limited harm to the moral force of the antidiscrimination regime.

The safe harbor for derivatives in bankruptcy has developed over the course of the last four decades into a very powerful tool for derivatives counterparties. The safe harbor’s overall effect is to allow counterparties to terminate their derivatives instruments and immediately collect their collateral upon the debtor’s initiation of a bankruptcy. This effect flies in the face of the Bankruptcy Code’s overarching principles, which are to ensure debtor rehabilitation and equality of distribution amongst creditors. By allowing derivatives counterparties to immediately terminate and close out their positions while the other creditors are stayed, both the debtor and other creditors are severely harmed. As the safe harbor contravenes the purpose of the Bankruptcy Code, it is important to consider why it was enacted into the law. This paper begins with a detailed look at the creation of the safe harbor over time. It all began with the enactment of the Bankruptcy Code in 1978, which contained a narrow safe harbor for certain derivatives instruments. Amendments to the Bankruptcy Code in 1982, 1984, and 1990 all served to dramatically increase the breadth, scope, and power of the safe harbor provisions. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 as well as the Financial Netting Improvements Act of 2006 were the final modifications to the safe harbor, and continued the pattern of enlarging its power. Overall, the safe harbor has consistently grown over time as the derivatives market increased in size and complexity. The paper next takes a detailed look at the legislative history over the decades to ascertain the purposes behind the safe harbor provisions. The legislative history paints a relatively consistent picture over all of the various amendments to the safe harbor about why this legal regime was created. The primary purpose behind the safe harbor provisions is, and has always been, to eliminate systemic risk. There has long been a fear that the size, complexity and interconnectedness of the derivatives market were so great that without special treatment it would all eventually come crashing down. However, there is also a discernible secondary purpose behind the safe harbor provisions, which is to clarify the protections for all market participants and create consistent, settled expectations for all so that the market may function effectively. As derivatives developed in complexity over time, industry participants clamored for legislation to clarify what protections extended to these new instruments and players, and Congress acquiesced to their requests. Having deduced the purposes behind the safe harbor, the next step is to determine whether those purposes were fulfilled in relation to the Financial Crisis of 2007-09. Substantial evidence from the collapses of Bear Stearns, Lehman Brothers, AIG, and the entire residential mortgage-backed securities market suggests that not only did the safe harbor fail to achieve its stated goal of reducing systemic risk, but actually backfired and increased systemic risk, and thereby worsened the financial crisis. In light of this evidence, the paper ends by discussing two routes for reform. The first option is to repeal the safe harbor in light of the creation of the Orderly Liquidation Authority under the Dodd-Frank Act. The Orderly Liquidation Authority is a financial resolution system created specifically for the largest institutions capable of producing systemic risk. However, this paper supports the second option, which is less drastic and the one less likely to upset settled expectations. That second option proposes to narrow the safe harbor provisions in various ways so that they are more appropriately targeted at achieving their goal of reducing systemic risk.

The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 significantly expanded the exemptions from the normal workings of the U.S. Bankruptcy Code. Using a large sample of U.S. banks we study investors’ reaction to news about the promulgation of the BAPCPA repo ‘safe harbor’ provisions and the influence extending such exemptions to repos collateralized by riskier collateral had on equity market information asymmetry. We find a negative market reaction to news events about the promulgation of BAPCPA, which subsequent cross-sectional analysis suggests is at least partly driven by repo exposure. This finding suggests that investors’ perceived the increase in finance risk from the extension of the ‘safe harbor’ provisions as dominating the perceived gain from accessing cheaper finance. We also find that extending repo ‘safe harbor’ provisions without corresponding changes in accounting regulations enhancing repo agreement disclosures, gave rise to increased information asymmetry for banks with higher repo exposure. This finding vindicates the recent changes in accounting regulations mandating increased repo disclosures.

The previous chapter discusses under what circumstances a hosting ISP meets the threshold of “safe harbor” provisions. This chapter will discuss how the courts in the US, EU and China to decide hosting ISPs’ secondary liability under the roof of the “safe harbor” provisions. In the light of “safe harbor” provisions, a hosting ISP who complies with certain requirements can be exempted from paying monetary damages. However, regarding the other kind of reliefs, such as injunction, “safe harbor” provisions cannot immunize hosting ISPs from them. Therefore, even though a hosting ISP fully complies with liability exemption conditions set in “safe harbor” provisions, it may still face liabilities other than paying monetary damages according to the traditional liability rules. Besides, as was mentioned in the end of Chap. 2, when interpreting “safe harbor” provisions, the courts cannot avoid being affected by traditional liability rules, so even though the US, EU and China have reached certain harmonization in the respect of “safe harbor” provisions, in light of case law, the secondary liability rules of hosting ISPs are still diverse in the US, EU and China. This chapter will take a comparative approach to examine the hosting ISPs’ secondary liability for copyright infringement on their platforms in the US, EU and China.

Safe harbors pervade tax law. Yet, the academic literature offers no comprehensive account of why they exist. This Article begins to fashion that account by developing a theoretical framework for understanding the functional purposes that safe harbors serve. In order to analyze safe harbors’ functional purposes, this Article compares and contrasts them with rules and standards. Articulating the reasons for adopting safe harbors has important practical implications. For instance, analyzing the functions of safe harbors can shed light on the use of other rule-standard hybrids such as rebuttable or irrebuttable presumptions. In addition, this Article provides direction to lawmakers considering the enactment or redesign of a particular safe harbor. For example, recently commentators have advocated for additional clarity in the area of law governing tax-exempt organizations’ political campaign activities. The analysis in this Article has important implications for the manner in which lawmakers ought to provide any such additional clarity.

Traditionally, courts held distributers and publishers strictly liable for any copyright infringement that appeared in their publications. By contrast, the hosting ISPs, who also distribute information supplied by others, are not held strictly liable for copyright infringing content that the ISPs distribute. This chapter first explores how the courts in China interpret the “alteration” of uploads so as to disqualify the less passive hosting ISPs for “safe harbor” provisions (Sect. 3.1). Then, it examines the factors on the basis of which the courts in the EU (France, Germany, Italy and the UK) consider hosting ISPs to be content providers like publishers (Sect. 3.2). In the US, hosting ISPs’ competence for “safe harbor” provisions has also been challenged before the courts, and this chapter (Sect. 3.3) discusses the US case law ruling on what is a prescribed hosting ISP in the “safe harbor” provisions. Based on the comparison between China, the EU and US, it summarizes and evaluates the relevant factors considered by courts when deciding on the hosting ISPs’ competence for “safe harbor” provisions (Sect. 3.4). The factors evaluated in Sect. 3.4 can be seen as conducting a certain degree of management on the uploaded contents, so the next section discusses whether a hosting ISP should be required to keep purely passive or allowed to conduct certain management, and then draw a criterion for deciding what is a qualified hosting ISP defined in “safe harbor” provisions (Sect. 3.5). Finally, it summarizes and concludes the findings in the previous sections (Sect. 3.6).

This paper ultimately seeks to promote a discussion that would have ideally been held before the safe harbors – defined as the provisions that allow market participants to ignore the core provisions of the Bankruptcy Code and other insolvency laws – were adopted by legislatures throughout the world. The recent financial crisis should be ample to revisit the discussion. In particular, I use this paper to push against the contention that because the safe harbors enhance liquidity in the derivatives market, that alone justifies the existence of the safe harbors.Liquidity is, in essence, “moneyness.” The safe harbors enhance the money-like qualities of one class of financial instruments by removing them from legal institutions that apply to most other classes of financial instruments. By doing so, the safe harbors convert swaps and other derivatives into a special class of contracts that are exempt from at least one area of non-contractual statutory law.I contend that granting these sort of exceptions is a zero sum game. By removing part of the costs of default from swaps, lawmakers have increased the costs that will be incurred by other financial instruments or other creditors, in other parts of the capital structure. That is, the holders of non-safe harbored financial instruments are subsidizing the safe harbored part of the capital structure. The core question is whether that subsidy – which we are told is vital to the very existence of the derivatives market – is worth more than its cost? The costs of the subsidy include any increase in the cost of other, non-safe harbored financial instruments, the costs to involuntary creditors who are unable to price the safe harbors at all, and the larger social costs of undermining legal institutions designed “to prevent a debtor from going into liquidation, with an attendant loss of jobs and possible misuse of economic resources.” By subsidizing liquidity for swaps, and thus facilitating the growth of the swaps market, we are incurring these costs. Is it worth it? My analysis herein suggests reason for doubt. We need to have the conversation.

Land use restrictions imposed by the Endangered Species Act may create conflict, affecting conservation on private lands. In 1995, the Safe Harbor program (hereafter, 'Safe Harbor') was initiated to alleviate concerns of private landowners about conservation of imperiled species. The inaugural program targeted endangered Red-cockaded Woodpeckers (Picoides borealis; hereafter, 'RCW') in the North Carolina Sandhills, USA. Landowners enrolled in the Safe Harbor select management actions to enhance habitat for existing populations, but incur no additional responsibilities for increases in populations. Despite the relevance for conservation, the benefits of Safe Harbor remain largely unknown. Here, we evaluate the effects of Safe Harbor on RCWs in the North Carolina Sandhills. Between 1980 and 2014, we monitored 55 RCW territories (30 Safe Harbor, 25 control). Following the initiation of Safe Harbor, the probability of territory abandonment on control properties increased by ∼14% over a 19-yr period, while it remained constant on Safe Harbor properties. This could have been due to more Safe Harbor properties (87%) than control properties (68%) receiving artificial cavities that offset cavity losses. Following the initiation of Safe Harbor, the laying date on Safe Harbor properties advanced 16.1 days over a 19-yr period, compared with 11.6 days on control properties. Enrollment in Safe Harbor was not related to other measures of breeding performance, likely due to variation in habitat management across properties. While Safe Harbor clearly alleviates conflict over conservation, other effects depend on management actions. We encourage evaluations of existing similar programs to determine their efficacy.

Policies to Support Home Dialysis Patients: Patients Need Help Too

The rise of so-called “safe harbors” – conditions that, when satisfied, trigger a presumption of legality – is among the most prominent features of the evolution of antitrust law in the modern era. The emergence of antitrust safe harbors occurred quickly and is attributable to significant contributions from the Supreme Court, lower courts, and the federal antitrust agencies. The recent and ongoing weakening and disappearance of safe harbors from the antitrust landscape has been less well recognized. We explain the causes and consequences of the rise and fall of antitrust safe harbors. We argue that the disappearance of safe harbors is not explained by reversals in any of the factors – a shift in economic analysis of legal rules, economic theory, empirical evidence, or the influence of particular judicial appointments – that led to the original rise in safe harbors. Preliminary evidence suggests that other forces are at work, including but not limited to, changes over time in both partisanship and preferences for standards over rules at the FTC. If we are correct that the current and ongoing shift away from safe harbors at the agencies and in the courts is the result of systematic changes, understanding its causes will be critical to identifying its implications for agencies, courts, and practitioners moving forward.

According to the music recording industry, YouTube, one of the largest purveyors of on-demand digital music, evades paying market rates for the use of copyrighted content by exploiting the Digital Millennium Copyright Act’s “safe harbor” provisions. The source of the distortion in licensing negotiation appears to be that at any one time, there may be multiple unauthorized copies of a particular song available notwithstanding compliance with the safe harbors, suggesting that services may essentially be able to offer access to music without paying royalties and still claim safe harbor protection for infringement. The evidence appears to confirm the claim: market-based royalties for subscription-based services are about eight-times larger than that paid by YouTube. An interesting question, it seems to us, is how much revenue the recording industry loses from the distortions caused by the safe harbor provisions? Employing accepted economic modeling techniques, we simulate revenue effects from royalty rate changes on YouTube’s service. Using 2015 data, we find that that a plausible royalty rate increase could produce increased royalty revenues in the U.S. of $650 million to over one billion dollars a year. This is a sizeable effect, and lends credence to the recording industry’s complaints about YouTube’s use of the safe harbor.

The Safe Harbor framework is a compromise agreement between two very different approaches to data protection and, as a result, it has many limitations. One of the main criticisms has been the lack of enforcement action against Safe Harbor members. The Safe Harbor is a self-regulatory scheme, so initial disputes are managed by the members themselves, or sometimes referred to third-party dispute resolution providers. However, the US Federal Trade Commission has been given a back-stop regulatory role for the Safe Harbor, and it has become the key enforcement agency for Safe Harbor compliance and unresolved disputes. This chapter examines the enforcement of Safe Harbor across the 15 years of its operation. There are four clear phases: 2000–2008, no action. 2009–2010, limited action on false claims 2011–2012, limited action on substantive non-compliance 2013–2015, new action on both false claims and non-compliance.

Because of the recent focus on television violence, it is more a question of "when," rather than "if," Congress will take action on this issue. "Safe harbor" regulation, or restricting violent programming to certain hours of the day, is one form of regulation that is recurrently suggested as a means for dealing with the potential ills created by television violence. The possibility of such regulation implicates numerous constitutional issues. This Article addresses whether "safe harbor" regulation of television violence is feasible without violating the First Amendment and other provisions of the Constitution.

BackgroundGenomics research is becoming increasingly globally connected and collaborative, contesting traditional ethical and legal boundaries between global and local research practice. As well, global data-driven genomics research holds great promise for health discoveries. Yet, paradoxically, current research ethics review systems around the world challenge potential improvements in human health from such research and thus undermine respect for research participants. Case reports illustrate that the current system is costly, fragmented, inefficient, inadequate, and inconsistent. There is an urgent need to improve the governance system of ethics review to enable secure and seamless genomic and clinical data sharing across jurisdictions.DiscussionBuilding on the international privacy 'safe harbor’ model that was developed following the adoption of the European Privacy Directive, we propose an international infrastructure. The goal is to create a streamlined and harmonized ethics governance system for international, data-driven genomics research projects. The proposed 'Safe Harbor Framework for International Ethics Equivalency’ would consist in part of an agency supporting an International Federation for Ethics Review (IFER), formed by a voluntary agreement among countries, granting agencies, philanthropies, institutions, and healthcare, patient advocacy, and research organizations. IFER would be both a central ethics review body and also a forum for review and follow-up of policies concerning ethics norms for international genomics research projects. It would be built on five principle elements: (1) registration; (2) compliance review; (3) recognition; (4) monitoring and enforcement; and (5) public participation.SummaryA Safe Harbor Framework for International Ethics Equivalency would create many benefits for researchers, countries, and the general public, and may eventually have application beyond genomics to other areas of biomedical research that increasingly engage in secondary use of data and present only negligible risks. Among the benefits, research participants and patients would have uniform adequate protection, while researchers would be ensured expert ethics review with a reduction in cost, time, administrative hassle, and redundant regulatory hurdles. Most importantly, society would enjoy the maximization of the potential benefits of genomics research.