American Business Law Journal最新文献

This article examines current and future trends in worker surveillance. It also examines the various, though minimal, legal protections workers have against extensive work-related monitoring. With no meaningful legal protections against excessive work-related surveillance, employees are arguably taking matters into their own hands by engaging in deviant behaviors that attempt to thwart surveillance efforts. Factoring in the ethical and managerial dimensions of a workforce under constant and excessive surveillance, this article examines a way forward for workers to engage in self-managed privacy, potentially leading to a less intrusive, but still productive, work environment.

Rapidly growing concerns about the adverse effects of climate change are prompting a re-thinking of how companies view their strategies and operations and spurring legal and regulatory responses around the world. The overarching objective of these efforts is to facilitate and accelerate the transition to a more sustainable economy. The green transition will have substantial distributional and structural implications for workers and the workplace across companies and economic sectors. Indeed, the future of work will be significantly shaped by climate change. However, relatively scant scholarly attention has been devoted to the forward-looking legal implications of climate change for work. Similarly, legal scholars writing on climate change have largely neglected the laws governing employment. This article seeks to help fill that gap. How can companies, workers, and society respond to the green transition in a manner that enables better jobs, a safe and stable workplace, and more resilient companies? To answer this question, this article draws on the theory of just transition, which is rooted in environmental justice and labor rights. We offer an interpretation and application of just transition that expands its scope to serve as a blueprint for ethical business conduct and legal reform to improve the world of work and the lives of workers.

This article presents evidence that patent value varies with random examiner assignment at the U.S. Patent Office. Prior work analyzed firm growth as a function of review by “easy” examiners who grant patents at a high rate. The current research looks past whether a patent is granted and instead focuses on how assignment to an “easy” or “hard” examiner influences the attributes of resultant patents. Focusing on their propensities to reject applications on novelty or obviousness grounds, analysis finds that patents issued by lenient examiners tend to be broader in scope, are more valuable to their owners, and elicit a larger stock market response when granted. Further analysis quantifies the level of variation (“noise”) among examiners. This inquiry finds that the noise level in issuing novelty rejections decreases with examiner experience, while variation among examiners issuing obviousness rejections actually increases with experience. A third line of investigation presents evidence that “stricter” examiners disproportionately reach the correct examination relative to more lenient counterparts. This conclusion is supported by “twin application” analysis comparing outcomes of related U.S. and European applications. Consistent with the literature using this method, the European Patent Office's outcome is considered the “gold standard” for examination, and thus, its decision to grant or deny is assumed correct.

Rights offers are a relatively common capital-raising method. In a rights offer, the company's existing shareholders are given the opportunity to purchase newly-issued shares in proportion to the amount of shares they already own for a specific subscription price per share. Because all shareholders can participate in the issuance under the same terms, rights offers are often regarded as fair to all shareholders. However, this article demonstrates that rights offers do not always place shareholders on equal footing. In particular, this article shows that dominant, non-controlling shareholders (“insiders”) can utilize a rights offer to expropriate control. By setting a deliberately high subscription price, insiders can deter other shareholders from buying into the offer. Insiders can then purchase a disproportionate amount of shares via the rights offer, thereby securing absolute control. Once in control, insiders will be in a position to extract value from the firm, and will be immune to future control challenges. These expected benefits of control make the high subscription price worth paying from insiders' perspective, so that the rights offer is effectively underpriced for insiders but overpriced for other shareholders. When a rights offer acts as a change-of-control tool, it should be governed by Delaware takeover law. Courts should closely scrutinize such issuances, and require boards to maximize the premium insiders pay for control. This article further suggests that stock exchanges adopt a mandatory price-adjusting mechanism for rights offers, which will guarantee that the subscription price is lower than or equal to the underlying share's trading price.

States are engaging in brute force (anti) federalism, where both sides of the political spectrum push agendas that extend beyond the Founder's early ideal of balanced federalism, using popular support and special interest groups' interests as their springboard. These trial-and-error tactics increase vertical and interstate horizontal frictions, create political and economic challenges for businesses, and increase American polarization. However, they also allow states the opportunity to force an increasingly stalemated federal government into action. This article introduces the concept of brute force (anti) federalism by first examining the evolution of modern federalism. It then offers a sampling of state brute force efforts, analyzes the effect of popular momentum and special interest groups on state political activity, advances broad-based perspectives surrounding brute force (anti) federalism, and poses additional questions to be considered.

The United Nations Convention on Contracts for the International Sale of Goods (CISG) has reached the level of acceptance that it can be recognized as the face of international sales law. Over a century ago, the late Roscoe Pound drew attention to the dichotomy between the law as written and the law as experienced in practice. The law of the CISG “on the books” is the law of the United States. With the growth of international trade, one might expect its importance to grow in the realm of law “in action.” This article explores the CISG in action in U.S. courts during its almost four decades of being the law on the books in the United States. To this end, the authors built an original dataset based on their Westlaw search of all decisions mentioning the CISG across all U.S. federal and state courts from 1988 (when the CISG entered into force) through 2019. The dataset provides unprecedented insights into: (1) how parties raise the issue of the applicability of the CISG, (2) how courts have ruled on the Convention's applicability, and (3) the provisions of the Convention that appear most frequently in these disputes. This article empirically assesses, through logistic regressions, which factors are statistically significant for predicting if a court will apply (or decline to apply) the Convention to a disputed transaction. Finally, the article highlights many ways in which the law in action may not be as robust or comprehensive as it appears on the books.

Arbitration is changing the United States justice system. Critics argue that arbitration leads to claim suppression. Proponents argue that, compared with courts, arbitration is cheaper and less formal. These claims have not been empirically tested. In particular, whether and how arbitration impacts individuals’ decision to sue remains an open inquiry. This article for the first time shows, in a series of experiments, the impact of arbitration agreements on individuals' decisions to sue. This article calls it the “arbitration effect.” First, we test whether the arbitration effect exists; that is, if arbitration agreements negatively impact individuals' decision to sue. Second, we experimentally test individuals' decisions to opt out of arbitration agreements. Lastly, we assess whether any type of information can “cure” the arbitration effect. The results establish that individuals are less likely to sue in arbitration as opposed to court, hence the arbitration effect. Such an effect, however, does not exist at the contracting stage, meaning that individuals do not shun arbitration when given the option. Further, none of the fundamental attributes of arbitration, as touted by the U.S. Supreme Court, nor win-rates and class actions mitigate the arbitration effect. Equally, informational nudges do not reduce the effect, and individuals do not ascribe negative attributes to firms forcing mandatory arbitration. For decades, courts and lawmakers grappled with issues related to arbitration. The article provides much-needed data on arbitration. Findings cast serious doubts on the ongoing efforts—market-based, judicial, or regulatory—aiming to change the arbitration course.

Professional baseball players are often thought of as making multi-million-dollar salaries, but most professional baseball players have recently made under $15,000 a year. Minor league players toiled under an onerous system resulting from baseball's judicially created antitrust exemption and lobbying efforts that exempted them from minimum wage and overtime. These factors allowed teams to impose a uniform player contract (UPC) on players with numerous unconscionable provisions for years. However, a late-night Tweet in August of 2022 sent shockwaves through the sports and labor world, announcing that the Major League Baseball Players Association (MLBPA) was sending out authorization cards to represent minor league players. After years of fighting to maintain the authority to impose conditions on minor league players, through lobbying and litigation, Major League Baseball (MLB) turned over a new leaf and recognized the unionization of minor league players under the MLBPA less than three weeks later. In light of this long sought-after recognition, this article takes a novel approach. First, it provides historical context for baseball's unique ability to impose working conditions on minor leaguers without significant concern for legal ramifications. Second, it provides an overview of the doctrine of contractual unconscionability and analyzes the prior UPC as an unconscionable agreement. Finally, it details the historic unionization process and makes detailed recommendations to ameliorate the unconscionable conditions minor league players have faced when they negotiate with MLB owners to draft their initial collective bargaining agreement.

While the Class Action Fairness Act (CAFA) establishes a bright-line jurisdictional amount in controversy for removing cases from state to federal court, calculating that quantitative threshold in practice is a fraught and heavily litigated exercise. This article examines removals under CAFA to show the substantial lack of clarity in how state-law causes of action and damage claims interact to reach the jurisdictional threshold. It compiles cases illustrating the challenges surrounding removal litigation that flow from these uncertainties, particularly in how the structure of CAFA incentivizes defendants to chain together tail-event precedent to inflate theoretical amounts in controversy. It then applies a Coasean analysis to suggest these uncertainties impede efficient resolutions to litigation. Finally, it suggests a series of practical amendments to CAFA and its interpretive case law that would provide clarity, decrease forum-selection litigation, and enhance the efficacy of class litigation.

Following the 2008 Great Financial Crisis, financial policy makers have refocused their attention on bank resolution, prompting the creation of new resolution tools and regime reforms. As a result, the focus has mainly been on large, systemically important banks. Less attention has been paid to a broader range of financial institutions, namely small and medium deposit-taking institutions. That tendency limits the applicability of these tools, which are imperfectly adapted to the unique issues faced by these smaller institutions. This article will assess both the successful applications and the limitations of resolution tools to small and medium deposit-taking institution failures, focusing on three tools in particular: the bail-in, the bridge bank, and purchase and assumption. In doing so, the benefits and challenges of each of these tools will be examined through the lens of recent resolution examples in the United States, Canada, and the European Union. This article also argues for the availability of public funds to achieve a successful resolution, taking the view that moral hazard concerns are overstated and that rigid bans of public funds are counterproductive to the goals of resolution. Lastly, this article seeks to develop a broad understanding of the systemic importance that accounts for the essential role of small and medium deposit-taking institutions in their communities.