American Business Law Journal最新文献

This article examines how the organizational structures and purposes of securities regulators affect securities law and its enforcement. Securities regulators in different jurisdictions can have either hierarchical or horizontal organizational structures, and their mission can be either policy-implementing or dispute-resolving. The securities regulators in China and the United States are two typical examples. The two countries can be roughly categorized as activist and reactive states, respectively. This article shows that the organizations of regulators and the disposition of governments affect the ends of securities regulation and provides some evidence that they also affect the means, which would explain the express differences in securities enforcement as well as those applied in practice. While a reactive state mainly seeks to protect investors and facilitate capital formation, an activist state tends to consider other state goals, including industrial policies and redistribution of wealth. Additionally, hierarchically organized securities regulators tend to focus more on technical rules and routines, whereas horizontally organized regulators employ more flexible standards and are better equipped to deliver substantive justice. This article contributes to the literature of law and finance and cautions against the “capital-market-centrist” view.

Transparency on ESG (environmental, social, and governance) is an important, if imperfect, step in striving for sustainability. Because a constellation of nonprofit organizations created voluntary reporting frameworks with little government involvement, ESG reporting governance is institutionally dense and fragmented. Reporting companies and information users have both expressed dissatisfaction. In 2020, standard-setting organizations indicated their intent to cooperate to simplify ESG reporting rules. In a different yet similar context, scholars utilize regime theory to understand institutional density and the potential for international cooperation, primarily among states. This article is the first to apply regime theory to ESG reporting governance architecture to better understand this unusual arena of rulemaking. It identifies key obstacles to global consolidation of ESG reporting governance and predicts that differences between the reporting philosophies in the European Union and the United States are among the factors that will prevent global consolidation of ESG reporting governance. This article concludes with advice for practitioners. It draws on law and strategy and proactive law literature to propose approaches for reporting companies navigating the complex landscape of ESG reporting governance.

Patent examination should ensure that only novel and nonobvious technologies are patented. This evaluation requires comparing the invention to technologies described in public documents—called “prior art.” Examiners and applicants have obligations to cite known prior art that is material to whether the patent is issued. Beyond documenting examination, citations are used as metrics in a significant body of research. The importance of citations as a predictive metric rests on the assumption that they provide evidence of continued development in the relevant field. Research indicates that some citations are, however, made for reasons beyond technological similarity. This undermines the notion that citations show continued growth of a technology. We analyze this assumption—and correct for inaccuracies—by employing similarity metrics to characterize the “relatedness” of technologies described in two patent documents (i.e., citing and cited references). To this end, we use a “Jaccard Index” to quantify textual similarity—and thus technological relatedness—of two documents. Using this method, we empirically analyze strategic behaviors in patent law that were previously only theoretically described in the literature. For example, some patent applicants “bury” relevant references—submitting many irrelevant references and a few relevant ones to hinder review of the important ones. Our Jaccard Index analysis is the first to empirically evaluate whether this practice benefits the applicant. Moreover, we improve upon patent value and grant rate analyses and demonstrate that citation relevance has a significant impact above and beyond a count of citations made.

This article examines how the law can help reduce retail vacancy rates in volatile urban real estate markets. Two potential drivers of high vacancy rates along retail corridors in otherwise healthy real estate markets are identified: (1) location risk, and (2) positive feedback effects. This article suggests that local governments can pursue a nudge-based approach to encourage landlords and retail tenants, especially small business owners, to adopt percentage rent or some other form of profit-sharing to more efficiently allocate location risk. To address positive feedback effects in which each storefront vacancy increases the likelihood of an additional storefront vacancy, a case is made for stronger government intervention.

Given the narrow framing of the Supreme Court's decision in Bostock v. Clayton County, that employers cannot fire someone simply for being gay or transgender, numerous questions persist as to whether and to what extent LGBTQ Americans are protected against employment discrimination. Resolving these issues is likely to require years, if not decades, of litigation, leaving LGBTQ workers and their employers without meaningful guidance in the interim. This article contends that the most efficient means of clarifying these uncertainties is for Congress to enact a new employment statute known as the Title VII Amendments Act. As proposed, the Act would resolve each of Bostock's ambiguities in favor of affording greater protections to workers generally and LGBTQ persons specifically while avoiding the controversies that have derailed LGBTQ civil rights legislation in the past. Thus, the Title VII Amendments Act represents LGBTQ persons' best hope of attaining immediate, comprehensive employment protections and employers' best prospect of securing definitive, timely legal guidance post-Bostock.

This article analyzes a significant Supreme Court securities law decision from the 2020 term, Goldman Sachs v. Arkansas Teachers Retirement System (Goldman). Goldman was a blockbuster class action, brought by shareholders seeking $13 billion in damages from Goldman Sachs based on claims that date back to the 2008 financial crisis. This article proceeds by taking an in-depth look at the case history of Goldman from start to finish. In the process, it shows that the Supreme Court's recent decision was more impactful than has been widely appreciated. Rather than being a recap of existing precedents, the Court's holding in Goldman made significant changes to some of the core doctrines in securities law that were first set forth in 1988 when the modern securities class action was created by Basic v. Levinson. This article also looks beyond doctrinal categories to assess how the Goldman decision can be understood as the latest chapter in the Supreme Court's longstanding role as a leading policy maker in the law of securities class actions. Lastly, the article explains how the precedent set in Goldman will affect securities litigation on the ground going forward. As a result of Goldman, it will be argued, the class certification stage in shareholder securities fraud suits has been moved closer to an open-ended totality of the circumstances test, in which the federal courts have an increasing number of tools to act as gatekeepers on the merits of a litigation.

Access to credit in the United States is contingent upon an individual obtaining the “right” credit score. Yet the opaque scoring system makes it nearly impossible for an individual to break out of a cycle of low credit ratings and participate in the benefits of the American economy. Partially as a response, alternative credit rating products now use personal nonfinancial data for automated credit decision-making, purportedly intended to expand access to credit. Social media activity, college grades, and even what time of day a person applies for a loan are examples of data points used for this purpose. However, these and other alternative data can be highly correlated with protected traits, such as race and national origin. While extending access to credit equitably across society is an important goal, the cure should not exacerbate the same inequalities that it is designed to address. The necessity of credit for the modern consumer compels continued oversight of the credit infrastructure to ensure fair data practices and to hold participants accountable. This article contends that consumer access to a fair credit score is a necessity, and that the consumer credit infrastructure should be viewed as a modern utility and subject to additional oversight. A proposal is then advanced that establishes fair data duties for credit scoring entities.

Can IP rights be lost? That is, once IP rights are acquired, what—if anything—must owners do to keep those rights or risk forfeiting them. The answer varies widely across the IP landscape and has important consequences for follow-on innovation, competition, and the public domain. This article takes the first close look at forfeiture mechanisms throughout the five major IP regimes—utility patent, trade secret, copyright, design patent, and trademark. I demonstrate how IP forfeiture mechanisms (e.g., maintenance fees, monitoring obligations, and use requirements) have weakened or narrowed over time. Building on prior scholarship, I also delineate the important functions that IP forfeiture mechanisms serve. By forcing IP owners to decide if the cost and effort of maintaining IP rights are worthwhile, forfeiture mechanisms help eliminate low-value IP rights and enlarge the public domain, benefiting follow-on innovators and society at large. In addition, forfeiture mechanisms serve an important notice or signaling role by forcing owners to engage in acts that inform second comers about the existence and scope of IP rights. These functions are particularly important when it comes to functional or useful subject matter (e.g., innovations that make a product work). Given forfeiture's role and its problematic narrowing across the IP landscape, I suggest the need for reform—particularly in design patent and copyright law, two areas that increasingly cover functional subject matter but lack any forfeiture mechanism.

The recent disbursement of COVID-19 pandemic-related federal relief funds to businesses and individuals under the CARES Act exposed significant problems in the U.S. system of money and payments. U.S. banks' wealth maximization objectives clashed with the federal government's goals of diversity, equity, and inclusion (DEI). The discriminatory, self-interested behavior of banks, which essentially served as the federal government's long arm in these transactions, worsened the pandemic-induced economic crisis for many, especially women and minorities, and intensified racial injustice. The U.S. government's inability in 2020 to successfully execute its stimulus plan and give all its intended recipients the benefits it had designated due to the role played by banks begs the question: Should U.S. banks be subject to any legal obligations when they help the government execute its fiscal goals? This article argues that U.S. banks should help advance the federal government's fiscal policy, including the DEI social agenda, especially during critical junctures such as the economic crisis instigated by COVID-19, and proposes an agency theory approach to mandate the implementation of government social policy goals among commercial banks via a CAMELS rating-like system that includes social goals, such as DEI. This DEI rating system would create public consequences for noncomplying banks, including depositors withdrawing their funds from lower-rated banks and redepositing them in top-rated banks, resulting in higher-rated DEI banks overtaking lower-rated banks. This DEI rating system will also provide an incentive for banks to compete for more diversity and inclusion, which would solve many of the systemic discrimination-related issues that led to economic inequality and intensified the 2020–2021 crisis. Lastly, DEI-based scores could help prevent banks from finding themselves on the losing side of the growing public banking movement in the United States, enabling banks to reposition themselves and avoid future radical changes in the banking industry.

This article uses computational text analysis to study the form and content of more than 3000 recommendation letters submitted on behalf of applicants to a major U.S. anesthesiology residency program. The article finds small differences in form and larger differences in content. Women applicants' letters were more likely to contain references to acts of service, for example, whereas men were more likely to be described in terms of their professionalism and technical skills. Some differences persisted when controlling for standardized aptitude test scores, on which women and men scored equally on average, and other applicant and letter-writer characteristics. Even when all explicit gender-identifying language was stripped from the letters, a machine learning algorithm was able to predict applicant gender at a rate better than chance. Gender stereotyped language in recommendation letters may infect the entirety of an employer's hiring or selection process, implicating Title VII of the Civil Rights Act of 1964. Not all gendered language differences were large, however, suggesting that small changes may remedy the problem. The article closes by proposing a computationally driven system that may help employers identify and eradicate bias, while also prompting a rethinking of our gendered, racialized, ableist, ageist, and otherwise stereotyped occupational archetypes.