American Business Law Journal最新文献

This article seeks to analyze the legal, market, and institutional features needed to become an international hub for debt restructuring. To that end, it examines the strategy adopted by Singapore as well as the market and institutional factors generally found in other leading legal and financial centers such as the United States, the United Kingdom, and Hong Kong. It is argued that in jurisdictions that have traditionally had creditor-oriented insolvency systems, such as Singapore, the United Kingdom, and Hong Kong, one of the primary challenges when enhancing the restructuring framework for debtors is ensuring that the insolvency system remains protective of the interests of the creditors. Otherwise, a reform that seeks to support the real economy may end up doing more harm than good, given that creditors may respond by increasing the cost of debt or restricting the availability of credit, ultimately harming firms' access to finance and the promotion of economic growth. Drawing on a novel insolvency index that measures the attractiveness of reorganization procedures from the perspective of debtors, secured creditors, and general unsecured creditors, this article shows how the United States managed to design an insolvency system that is attractive to both debtors and creditors and how Singapore and the United Kingdom have recently enhanced their restructuring framework for debtors while continuing to be attractive jurisdictions for lenders. Therefore, the experiences of these jurisdictions provide valuable lessons for countries seeking to improve their restructuring frameworks. It will be argued, however, that enhancing a country's insolvency and debt restructuring laws represents only the first step toward becoming a restructuring hub. The sophistication of the judiciary, the development of the restructuring ecosystem, and other external factors, such as the international recognition of reorganization procedures, will also play an essential role in the success of a jurisdiction seeking to become an international hub for debt restructuring.

Traditional insolvency duties are designed to protect creditors, yet in times of financial crisis, they may lead to a wave of bankruptcies. This Article challenges the assumption that director insolvency duties always serve creditor interests, arguing that they can generate “congestion costs”—a surge in bankruptcy cases that overwhelms courts and floods markets with distressed assets at fire-sale prices. Drawing on a comparative analysis of legal responses in Germany, Australia, and the United States during the COVID-19 pandemic, this Article demonstrates how the presence or absence of rigid insolvency duties can affect bankruptcy congestion and premature filings during times of crisis. To address these concerns, this Article proposes a designated carve-out, providing temporary relief from insolvency duties during macroeconomic shocks. Where legal reform is impractical, it suggests alternative contractual solutions such as automatic debt deferrals. By integrating macroeconomic considerations into insolvency law, this Article reframes the role of director duties in corporate governance and financial stability. This Article concludes that flexible insolvency frameworks are essential to building crisis-resilient markets.

Despite the stability of the formal Bankruptcy Code, an influential literature suggests a paradigm shift from debtor control to lender control in the actual processing of Chapter 11 cases. Yet, while existing studies highlight who now benefits more from case outcomes, how the doctrinal case content has evolved amidst this paradigm shift remains unexplored. To address this gap, I examine the doctrinal evolution of Chapter 11 cases through citation practices. In bankruptcy law, judges are required to cite sections and co-cite doctrinally related code sections to justify their decisions, similar to how precedents are co-cited. The citation practices enable a systematic examination of corporate reorganization law using information from 6439 bankruptcy opinions, revealing a shift toward a closer relationship between operational and distributional sections. These two types of sections govern critical bankruptcy decisions: operational sections oversee firm activities related to asset deployment and securing financing, while distributional sections regulate decisions concerning creditors' priority and payoffs. Both individual section co-citation analysis and the global examination based on community detection and text analysis demonstrate that these two categories of sections have transitioned from being infrequently co-cited to being frequently co-cited. This article explains the strengthened co-citation relationship between operational and distributional sections as a result of a shift in business transaction structures. In modern bankruptcy, distributional decisions are increasingly made simultaneously with operational decisions—the bundling structure, rather than the traditional unbundled structure. This bundling serves as the mechanism through which lender control is exercised as it sidesteps the priority rule in favor of certain senior lenders. As judges oversee more bundled transactions, sections of different types, implicitly or explicitly, are co-cited more frequently. This study systematically identifies the doctrinal shift from unbundling to bundling for the first time. By linking case content to outcomes, this study enhances our understanding of the bankruptcy law paradigm shift. Furthermore, this network approach to addressing the inconsistency between judicial practice and formal law holds potential in other fields.

Regulators, legislatures, and advocacy groups assert that diversity improves decision-making in groups when pushing firms to change the way they select managers, officers, and directors. Likewise, consulting firms trumpet diversity as a path to better organizational outcomes, citing impressive-sounding performance differentials between diverse and non-diverse entities. A review of the empirical literature provides a much more uncertain assessment of the evidence for the “business case” for diversity. This literature is dominated by research designs that do little to isolate causal relationships. This review examines many of the most highly cited articles used to support the proposition that diversity improves decision-making and performance within groups or firms, focusing on the credibility of the research designs employed.

Notwithstanding its many agreeable benefits, the sharing economy has presented numerous negative externalities and policy challenges. Foremost among these is the abuse of users' privacy, which is enabled by the capture of vast troves of data by sharing economy platforms. As humankind confronts the frontier of generative artificial intelligence, examining how privacy harms have been articulated and addressed in the context of ridesharing is a beneficial exercise and one that can be enhanced by looking beyond U.S. borders. This Article, therefore, uses a functionalist comparative law methodology to examine the regulation of ridesharing platforms concerning user data in the United States and China, and to reveal actionable insights for policymakers. Following a primer on comparative law methodology, the Article integrates Chinese- and English-language primary and secondary sources to compare the ridesharing data regulations of China and the United States along their institutional and substantive dimensions. We argue that China has effectively utilized the benefits of its federalist structure by promulgating a floor of data privacy regulations at the national level that enables local regulators to address local realities while also preserving the incentives to innovate that are so important for technology firms. We suggest that a national regulatory floor would also promote consistency and innovation in the United States and would similarly enable regulators to speedily and efficiently respond to market failures in fast-paced technology sectors. We also argue that the utilization of technology to enhance the regulatory oversight of technology firms would behoove the United States, though perhaps with the addition of certain guardrails that do not exist in the Chinese legal environment.

This Article critically examines the recent movement to extend collective bargaining rights and antitrust immunity to non-employee labor groups, spurred by the First Circuit's 2022 decision in Confederación Hípica de Puerto Rico v. Confederación de Jinetes. Historically, labor under the Clayton Act and the National Labor Relations Act (NLRA) have been limited to employees, safeguarding unions from antitrust scrutiny while requiring employer neutrality in union organization. Yet, the First Circuit extended the Clayton Act's labor exemption to a group of independent contractor jockeys, challenging the traditional employee-focused framework. As Congress and state and local governments consider further expansions of bargaining rights to non-employees, new tensions emerge. This Article argues that granting collective bargaining rights to non-employee groups—without the corresponding employee protections of the NLRA and Fair Labor Standards Act—would significantly harm labor markets and weaken labor's power in collective bargaining. By examining college sports and the gig economy as case studies, we demonstrate how non-employee bargaining heightens the risk of “sham” labor groups that allow employers to structure labor groups favorably and unionization's inherent checks and balances, starting labor off at an extreme disadvantage in collective bargaining negotiations. This Article calls for a reevaluation of non-employee bargaining exemptions to ensure robust protections for all workers, avoiding the pitfalls of employer-dominated bargaining frameworks that offer the antitrust immunity “carrot” without the accompanying labor law “stick.”

Corporate law does not support the corporate operating systems of Silicon Valley startups. Startups are exit-driven, short-term ventures. Their shareholders care from day 1 about the exit strategy that the startup will finally pursue (i.e., how and when it will be acquired or go public). Startup shareholders often have differing views in this respect, and to allow them to collaborate efficiently nonetheless, startups have developed unique governance structures. These structures rely substantially on giving prominent shareholders the power to force their desired exit strategy on other shareholders and startups' managements. At the same time, however, startups are practically required to organize their businesses as corporations, which strictly undermines these governance structures. Corporate law compels shareholders to entrust almost all exit-related powers and discretion to the board of directors. The board, in turn, is obliged to serve the interests of the shareholders as a whole, disregarding particular shareholders' needs. This tension burdens startups by making their carefully crafted governance structures unreliable and difficult to enforce. Currently proposed solutions, whether based on sophisticated contracting or using non-corporate business entities, prove inadequate for resolving this fundamental clash. Instead, this paper calls for policymakers to introduce the “venture corporation,” a new business entity designed to answer startups' unique governance needs.

In the last decade, we learned of massive scandals at some of the world's largest companies. In each of those cases, compliance officers were charged with ensuring that the company adhered to legal and regulatory requirements and their own internal codes of conduct, and yet, these companies were not protected from their own bad actors. Compliance functions have grown in importance, while, at the same time, it has become increasingly difficult to hire and retain qualified personnel for compliance roles. We posit that a key issue facing compliance personnel—one that could be improved with legislative attention—is the failure of the law to protect compliance officers from retaliation when they blow the whistle by reporting unlawful or unacceptable conduct to superiors inside the organization. In essence, when compliance officers do their jobs and alert the company to possible violations of law or take issue with the company's handling of a potential legal violation, these officers are vulnerable to retaliation and can be terminated, demoted, and the like without legal consequence. The very employees that organizations hire to protect them are themselves unprotected. In this article, we consider compliance officers in three areas: Equal Employment Opportunity (EEO), securities fraud and financial regulation, and anti-money laundering. In two out of the three areas, we find compliance officers uniquely exposed to lawful retaliation, while the third area provides a far more protective environment and offers a path forward for the other two. In both the EEO sector and the securities fraud sector, we highlight the common law doctrines and statutory interpretations that have created this situation for compliance officers. In contrast, the Anti-Money Laundering Act of 2020 (AMLA) provides exceptional protection for whistleblower compliance officers in this sector, and as a result, we propose using the AMLA as model legislation for proposed changes in the other two domains. The plight of compliance officer whistleblowers is complicated by courts that have intentionally and unintentionally narrowed protections without contemplating the broader implications of their actions. We propose that Congress respond to these narrowing doctrines so that compliance officers can effectively do their jobs and protect their organizations from legal liability and scandals, with the assurance of protection against retaliation as they perform this essential function.

Children mistakenly eating tetrahydrocannabinol-laced gummies thinking they are Halloween candy. Adults overdosing on seemly innocent and fun-looking “edibles.” These all-too-common occurrences are a serious problem in the growing market for cannabis-related products. A significant part of the risk stems from the broad acceptance and expectation of parody marketing in the field, which has contributed to these dangerous misunderstandings. Importantly, recent changes to trademark law have limited the commercial use of parodies as marks, strengthening the hand of brand owners to police harmful impersonation while preserving legitimate speech. As a result of the more restrictive environment, trademark law and consumer safety rules are increasingly congruent and a greater array of stakeholders with significant financial resources now possess the power and incentive to reduce the danger. This article uses the above cannabis marketing conflict as a framing tool for exploring the limits of trademark parody in an important yet under-examined context: when safety concerns clash and arguably supersede speech. The existing literature has typically considered parody in innocuous and often noncommercial applications. Such limited review underappreciates instances when trademark confusion or dilution through parody lead to serious health consequences, particularly for vulnerable audiences such as children. Additionally, to the extent that the literature does address cannabis and trademarks, it has generally focused on cannabis branding issues as opposed to infringing the rights of others. This article bridges the gaps. Moreover, it integrates a consideration of the impact of recent Supreme Court cases, Jack Daniel's Properties, Inc. v. VIP Products LLC and Vidal v. Elster, that reflect a tighter circumscription on speech protections for unauthorized use. It concludes with the observation that not all parodies are equal in terms of balancing speech and safety. And with evolving trademark law, there is increasingly an incentive for various stakeholders to collaborate to enhance consumer safety.