American Business Law Journal最新文献

Amid the surge of intellectual property (IP) disputes surrounding non-fungible tokens (NFTs), some scholars have advocated for the application of personal property or sales law to regulate NFT minting and transactions, contending that IP laws unduly hinder the development of the NFT market. This Article counters these proposals and argues that the existing IP system stands as the most suitable regulatory framework for governing the evolving NFT market. Compared to personal property or sales law, IP laws can more effectively address challenges such as tragedies of the commons and anticommons in the NFT market. NFT communities have also developed their own norms and licensing agreements upon existing IP laws to regulate shared resources. Moreover, the IP regimes, with both static and dynamic institutional designs, can effectively balance various policy concerns, such as innovation, fair competition, and consumer protection, which alternative proposals struggle to provide.

Mutual fund disclosures must include information about a fund's strategies and risks to comply with the letter of the law. But funds should also honor the spirit of Securities and Exchange Commission (SEC) regulations, including informing ordinary investors. Disclosure language creates impressions that can be just as important as the content. But evaluating these soft aspects of disclosures is hard. In this article, we propose using disclosure tone—how positive or negative the language is—to empirically capture these impressions. This measure provides an additional tool to assess compliance with the spirit of disclosure laws. Building on finance research on company disclosures, we develop customized dictionaries specific to mutual fund disclosures. We then introduce a novel sentiment-scoring framework that generates transparent sentence- and disclosure-level scores for our sample of 164,602 mutual fund summary prospectuses (497k) from 2010 to 2020. Our descriptive analysis validates our dictionary by showing meaningful and statistically significant differences across disclosure sections, fund type, and time. Funds' statements of their principal risks are more negative (and uniformly so) across time than funds' descriptions of their investment strategies. We further explore these relationships using a fixed-effects regression model. These analyses reveal statistically significant relationships between mutual fund disclosure tone and fund attributes, performance, and disclosure characteristics. These relationships are consistent with SEC requirements that anchor risk discussions in more negative language than strategy discussions. The findings also highlight the role of legal language in setting the overall disclosure tone. Our context-sensitive approach provides a path to regulate compliance more effectively with both the letter and the spirit of the law. Our framework, which we have made publicly available, provides a robust tool to allow researchers and regulators to assess not only what funds say, but how they say it.

In an unsustainable trend, each year is touted as the worst on record for data and system breaches. 2020's dubious top distinction was exceeded across numerous metrics in 2021, and 2022's numbers set another unwanted record. The growing epidemic of ransomware, data breaches, and cyber-enabled attacks pushes policymakers and business leaders to consider what can be done to reverse the cyber-insecurity spiral. Amidst the current cybersecurity landscape fraught with regulatory gaps, dependence on self-regulation, and resource constraints of small- and medium-sized businesses, policymakers should seize opportunities to reward reasonable cybersecurity postures and disincentivize underinvestment in cybersecurity best practices. Bold and coordinated actions are needed to dislodge the unsustainable trend of increasingly damaging cyberattacks, and to create a more holistically secure digital future. To move the needle toward a more robust cybersecurity ecosystem, this article proposes an incentive-based strategy that breaks the mandate-versus-self-regulation dichotomy, leveraging a carrots and sticks tax approach to spur stronger cybersecurity postures across the ecosystem. Such proposal outlines a framework for a Federal Cybersecurity Investment Tax Credit, tailored and mapped to select entity types, combined with a cyberinsecurity tax, thus promoting the principle that businesses have basic cybersecurity responsibilities and fundamental duties to operate securely in a digital society. In addition, this article introduces supplementary tools as part of an enhanced cybersecurity tax policy toolkit. Given pressing national and global cyber risks, this article continues a long-standing conversation about the operative use of tax policy as part of a holistic approach to reaching a secure and sustainable digital future.

Although policymakers have recently shown a keen interest in noncompete reform, a gap exists in the literature concerning what the U.S. public's preferences are regarding noncompetes. Therefore, this article presents the empirical findings of a nationally-representative survey of the American public on the noncompete law governing employees. Based on the results of a conjoint experiment within the survey, this article finds that the U.S public prefers that noncompetes be used to protect any types of confidential information, rather than simply customer lists or employee training investments. Additionally, the findings do not show clear support either for or against noncompete exemptions based on an employee's earnings level. However, this article finds that the U.S. public prefers a noncompete exemption for physicians, a shorter maximum duration for the noncompete period, and a legal mandate that departing employees subject to noncompetes receive some compensation from the employer during the noncompete period. Consequently, this article argues that employers should engage in greater self-regulation if they would like to mitigate the risk not only that legislators will respond to public sentiment favoring more employee-friendly policies by enacting a total or near-total ban on noncompetes, but also that judges will find the noncompetes to be unreasonable.

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.