Sarah Dadush - Academia.edu (original) (raw)

Papers by Sarah Dadush

Duke Journal of Comparative and International Law, 2018

With proponents of deregulation ascendant, both domestically and around the world, private regula... more With proponents of deregulation ascendant, both domestically and around the world, private regulation appears to be an attractive solution to a seemingly intractable problem—assuming it is or can be effective. This Article adds an important corrective to standard accounts of private legal regulation and its effectiveness. Existing scholarship generally looks to the formal contract terms as the key to understanding private regulation and to evaluating its impact. This practice needs to be rethought. The relationship between contracting parties, as well as the regulatory authority that one party exerts over the other, can be quite different than the relationship described by the formal contract terms. This Article illustrates the problem with the scholarly assumption that formal contract language reliably describes the private regulatory relationships they establish. It does so through an in-depth analysis of a form of private contracting with great regulatory potential: the loan guar...

Social Science Research Network, Jun 18, 2019

This Article offers a commentary on the American Bar Association's initiative to craft model cont... more This Article offers a commentary on the American Bar Association's initiative to craft model contract clauses that U.S. buyer companies can include in their contracts with suppliers. The purpose of the model contract clauses ("MCCs") is to deepen the protection of human rights along the supply chain. This Article briefly explains how the MCCs work and highlights two valuable contributions of the MCCs to the business and human rights space. First, the MCCs effectively take buyers' non-binding human rights policies and put them into practice by incorporating them as contractually enforceable appendices to the supply agreements. Second, the MCCs serve to relax the legally outdated distinction between product and process regulation by treating a product's human rights conformity as being on contractual par with a product's technical conformity (e.g., quantity, size, design). Both of these contributions are hugely beneficial for purposes of advancing the protection of human rights within global supply chains. This Article then discusses a central shortcoming of the MCCs, which is that the clauses shift all responsibility for human rights violations onto the supplier, ignoring the reality that the buyer's purchasing practices can be a serious contributing factor to the occurrence of violations. It concludes with some preliminary recommendations for improving the MCCs, in anticipation of a possible version 2.0 of the clauses.

SSRN Electronic Journal, 2022

The Cambridge Handbook of Social Enterprise Law, 2019

Social enterprises solve social and environmental problems in rich and poor countries alike. Some... more Social enterprises solve social and environmental problems in rich and poor countries alike. Some advance a social mission and work to expand access to critical goods and services for the poor and under-served, such as healthcare (e.g., affordable ambulance services and cataract surgeries), housing, financial services, and quality employment. Others commit to an environmental mission and develop green products such as eco-friendly household cleaning products and textiles, solar powered cooking stoves, and sustainably sourced food products and minerals. Social enterprises receive funding from impact investors who expect their investments to generate double or triple bottom line returns: Financial, social, and environmental. Like the social enterprises it finances, impact investing — also referred to as social finance — is hybrid in that it is driven by both commercial and non-commercial imperatives: To generate financial returns alongside a positive social or environmental impact. Impact investors — individuals or institutions like funds, investment banks, foundations, etc. — supply “patient” capital to finance the provision of goods, services, and technological innovation that make the world a better, safer place. This chapter is concerned with identifying norms, rules, and mechanisms for protecting the promise of social enterprises — and, by extension, social finance. The aim is to maximize the potential for social enterprise to have positive impact while minimizing the risk of “hybridity diversions,” which are produced when commercial and non-commercial imperatives come into tension. The argument is that, to protect the transformative promise of social enterprises, hybridity must be regulated, both formally and informally, through a mix of hard and soft norms. To do this effectively, we cannot simply blueprint the regulatory frameworks designed for conventional corporations and conventional finance — frameworks designed to protect financial expectations, not those of stakeholders, and not impact. Instead, a new blueprint must be developed.

Consumer Law eJournal, 2018

In September 2015, the world learned that Volkswagen had rigged millions of its “clean diesel” ve... more In September 2015, the world learned that Volkswagen had rigged millions of its “clean diesel” vehicles with illegal software designed to cheat emissions tests. Contrary to what had been advertised, the vehicles are anything but clean. The fraud, referred to as “Dieselgate,” lasted for over seven years. When affected owners learned that their cars were much more toxic than advertised, what were they upset about? Was it that their cars were now worth fewer dollars? Or that they had been deceived into being bad global citizens, when they thought they were being good?<br><br>Coverage of Dieselgate strongly suggests that affected car-owners experienced both kinds of disappointment, economic and non-economic, and in heavy doses at that. But while the first kind of harm is relatively easy to recognize and address, this article shows that our protective regime is ill equipped to shield consumers from the second, a kind of “identity harm.” Identity harm refers to the distress ex...

LSN: Corporate Governance International (Topic), 2021

These Model Contract Clauses (MCCs) are designed to help protect the human rights of workers in i... more These Model Contract Clauses (MCCs) are designed to help protect the human rights of workers in international supply chains. This second version (MCCs 2.0) marks a major shift in contract design, reflecting both recent research and thinking about what organizational strategies are most effective and recent and ongoing legislative developments, including not only US legislation but also the likely mandatory human rights due diligence law in the European Union. While the most prominent shift in MCCs 2.0 is that buyers share contractual responsibility for human rights with their suppliers and sub-suppliers, other contract design changes are equally fundamental. Instead of a typical regime of representations and warranties, with concomitant strict contractual liability, these clauses provide for a regime of human rights due diligence, requiring the parties to take appropriate steps to identify and address adverse human rights impacts. This regime aligns better with current and contempla...

The American University law review, 2019

This Article offers a commentary on the American Bar Association’s initiative to craft model cont... more This Article offers a commentary on the American Bar Association’s initiative to craft model contract clauses that U.S. buyer companies can include in their contracts with suppliers. The purpose of the model contract clauses (“MCCs”) is to deepen the protection of human rights along the supply chain. This Article briefly explains how the MCCs work and highlights two valuable contributions of the MCCs to the business and human rights space. First, the MCCs effectively take buyers’ non-binding human rights policies and put them into practice by incorporating them as contractually enforceable appendices to the supply agreements. Second, the MCCs serve to relax the legally outdated distinction between product and process regulation by treating a product’s human rights conformity as being on contractual par with a product’s technical conformity (e.g., quantity, size, design). Both of these contributions are hugely beneficial for purposes of advancing the protection of human rights within...

Identity harm refers to the anguish experienced by consumers who learn that their efforts to cons... more Identity harm refers to the anguish experienced by consumers who learn that their efforts to consume in line with their personal values have been undermined by a company’s false or exaggerated promises about its wares. When broken, other-regarding “virtuous promises” about products (e.g. eco-friendly, responsible, fair-trade, cruelty free, conflict free) give rise to identity harm by making consumers unwittingly complicit in hurting others. A leading example is the Volkswagen emissions scandal: when environmentally-conscious purchasers of Volkswagen’s “clean diesel” cars learned that the vehicles were in fact hyper-polluting, they experienced identity harm because of their complicity in a scheme that hurt the planet and the health of their communities. As more people become sensitized to environmental and social (labor and human rights) sustainability challenges, they are also becoming increasingly concerned about their role in aggravating these challenges through their individual c...

The settlement that followed the Volkswagen emissions scandal has been touted as the largest one ... more The settlement that followed the Volkswagen emissions scandal has been touted as the largest one in automative history. Affected car owners can sell their cars back to VW at pre-scandal prices and receive compensation on top of that; additionally, VW must pay billions of dollars into a climate mitigation fund to offset the emissions generated by its deceit. However, conscious consumers--individuals who care about the environmental and social impact of their purchases--should be cautious about overstating the settlement's precedential value. This is because the factors that contributed to making it so large are quite unique. This Essay argues that it is too easy for companies to make and then break sustainability promises without fear of accountability, and that it is too hard for consumers aggrieved by broken sustainability promises to vindicate their expectations in court. It introduces the notion of identity harm, which refers to the anguish experienced by consumers who come t...

AJIL Unbound, 2017

This essay describes the normative dynamics within industry associations that affect their contri... more This essay describes the normative dynamics within industry associations that affect their contributions to private transnational legal ordering. It asserts that even the most powerful associations possess characteristics that undermine their autonomy to rulemake for their industries, and so, their ability to govern. Examining the relationships between associations and their members helps us identify the forces that impede the effectiveness of associational governance, an important source of transnational private regulation.

Policing and Society, 2003

Organizational Communication eJournal, 2020

Humans have different types of relationships. Behavioral economists and social psychologists dist... more Humans have different types of relationships. Behavioral economists and social psychologists distinguish between two main types. The first type is the “exchange relationship,” based on mutual economic benefit and efficiency principles. The second is the “communal relationship,” based on caring, kindness, support, and affection. The law has been slow to incorporate this distinction. This is particularly true in the consumer marketplace, where businesses increasingly employ communal tactics to achieve exchange outcomes. Today’s firms are in the business of selling not only products or services, but also “communal” or “social” relationships. We dub this phenomenon “relationship as product.” Our conjecture is that the practice of selling relationship as product can generate various negative outcomes. By encouraging consumers to behave emotionally, relationship as product lowers consumers’ defenses. It encourages consumers to overlook their self-interest and invest more money, attention,...

Global Power through Classification and Rankings, 2012

... Celebrities such as Oprah Winfrey, Stephen Spielberg, and Chris Rock appear in promotional ma... more ... Celebrities such as Oprah Winfrey, Stephen Spielberg, and Chris Rock appear in promotional materials, urging consumers to make conscientious purchasing decisions, and calling for more awareness about AIDS in Africa.4 The campaign was itself founded by two ...

International Organizations Law Review, 2012

NYUL Rev., 2010

... 85 These simple rules for how combatants must be treated if found in neutral territory are st... more ... 85 These simple rules for how combatants must be treated if found in neutral territory are still in force and were incorporated in Article 4(B)(2) of the Third Geneva Convention Relative to the Treatment of Prisoners of War (GC III). ... n25.n25. Hamlily v. Obama, 616 F. Supp. ...