Michigan Business & Entrepreneurial Law Review最新文献

{"title":"Consumer Preferences for Performance Defaults","authors":"F. Snyder, Ann M. Mirabito","doi":"10.36639/mbelr.6.1.consumer","DOIUrl":"https://doi.org/10.36639/mbelr.6.1.consumer","url":null,"abstract":"Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These “majoritarian” defaults are justified as being most likely to carry out the presumed intentions of the parties. Despite the frequent assertion that the defaults used by courts reflect the views of most contracting parties, there is remarkably little empirical evidence that they do. Neither the legal scholars who study contract law nor the business scholars who study business transactions seem to have examined whether important default terms really are those that parties actually prefer. Statements by judges and scholars that these defaults are those the parties would presumably have chosen do not appear to rest on anything except the personal opinions of the writers. This article attempts to remedy that situation by focusing on one very important situation in which default rules are generally relied upon—and then asking which rule the parties actually prefer. In particular, we look at how consumer purchasers of goods and services view the default rules that apply when sellers tender an imperfect performance. Do those purchasers prefer a rule that allows them to insist on getting exactly what they sought (a rule reflected in the Uniform Commercial Code’s concept of “perfect tender”), or one that requires them to accept a performance that is reasonably close to, but not exactly, what they wanted (the common law’s “substantial performance” rule)? And does purchasers’ preference depend on the goods/services nature of the product? The UCC applies a perfect tender standard for goods, and a substantial performance standard for services. To shed light on consumer preferences, we conducted three studies, reported here. These studies uncover a powerful consumer preference for perfect tender in contracts for both goods and services. Consumers reject the idea that they have any moral or legal obligation to pay for things when they did not receive exactly what was ordered, even where the failure relates to an idiosyncratic preference rather than a difference in economic value between the promised performance and what was tendered. These findings are important because they show that one very large group of contracting parties (consumer purchasers) would not choose substantial performance as a default. Because there is already ample historical evidence that commercial buyers and sellers also prefer perfect tender, courts need to reevaluate the claim","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123267099","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating Secondary Markets in the High Frequency Age: A Principled and Coordinated Approach","authors":"M. Morelli","doi":"10.36639/mbelr.6.1.regulating","DOIUrl":"https://doi.org/10.36639/mbelr.6.1.regulating","url":null,"abstract":"Technological developments in securities markets, most notably high frequency trading, have fundamentally changed the structure and nature of trading over the past 50 years. Policymakers both domestically and abroad now face many new challenges impacting the secondary market’s effectiveness as a generator of economic growth and stability. Faced with these rapid structural changes, many are quick to denounce high frequency trading as opportunistic and parasitic. This article, however, instead argues that while high frequency trading presents certain general risks to secondary market efficiency, liquidity, stability, and integrity, the practice encompasses a wide variety of strategies, many of which can enhance, not inhibit, the secondary trading market’s core goals. This article proposes a regulatory model aimed at maximizing high frequency trading’s beneficial effects on secondary market functions. The model’s foundation, however, requires information. By analyzing more data on how high frequency traders interact with markets, regulators can assess the viability and scope of other potentially worthwhile measures targeting more general market threats. Likewise, regulators can determine who is in the best position to bear supervisory responsibility for particular trading activities: agencies, exchanges, traders, or some combination thereof. Crucially, the model also calls on regulators to share information on a global scale: trading no longer only affects a single exchange, a single asset class, or even a single country. By sharing information, global regulations become more informed, secondary market stability is enhanced, and regulatory arbitrage is minimized. In short, high frequency trading can be a force for good, but a principled and coordinated effort is required to ensure it fulfills that potential.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"661 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116097166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Where Does One Begin to Describe a Professor who Literally Changed Your Life?","authors":"Kelli Turner","doi":"10.36639/mbelr.5.2.where","DOIUrl":"https://doi.org/10.36639/mbelr.5.2.where","url":null,"abstract":"A bit of background to set the stage, if you’ll indulge me. Growing up in West Bloomfield, Michigan, I was never overly ambitious, nor did I have any lofty academic goals. In particular, I never had any desire to go to law school or, for that matter, to become a lawyer. I come from a family of trial attorneys and it never interested me much. I was a numbers person and didn’t enjoy a lot of deep reading and essay writing (somewhat ironic as I’m writing this for a law journal). But when I started in public accounting and developed a strong interest in tax, I realized I could do much more with a law degree than only a CPA. At that point, with good but not great grades from Michigan undergraduate business school and good but not great LSAT scores, as well as a desire to go to law school in Michigan for cost reasons, I applied to Wayne State University Law School and was accepted. Much to my surprise, I really enjoyed law school and was very happy at Wayne. Also, I ended up with straight As and was tied for first in my class. It seemed like I had found my groove, so at that point, I decided I should apply to transfer to the University of Michigan Law School, and I was thrilled to be accepted. Straight off, I elected any tax and business courses that I could find. Which leads me, finally, to Professor Kahn. My first tax course was personal income tax with Professor Kahn. I was a bit intimidated, and for good reason. He had written numerous books that were essential to the study of tax law and he was somewhat of a legend in the history of the University of Michigan Law School. My best friend’s dad had Professor Kahn twenty plus years before I did, and I had heard a lot about him. As it turned out, Professor Kahn was also brilliant, funny and made what could be a dry topic very engaging. I remember the first time he called on me like it was yesterday. He seemed to like my thought process and my answer. It was a huge relief.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128771066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Doug Kahn - A Personal Appreciation","authors":"Patricia White","doi":"10.36639/mbelr.5.2.doug.kahn.personal","DOIUrl":"https://doi.org/10.36639/mbelr.5.2.doug.kahn.personal","url":null,"abstract":"Doug Kahn has a booming laugh and an infectious enthusiasm for his subject. I am one of the legions of students who were infected by the tax bug—thanks to Doug. It is appropriate that, on the occasion of his retirement, some of us who were most infected reflect on Doug’s influence in our lives. In my case this is easy. I owe the basic contours of my career to Doug. I graduated from Michigan Law in 1974. Times were different then. I graduated never having had a female instructor. There were no women on the faculty. Only thirteen percent of the members of the class of 1974 were women, up from nine percent for the class of 1973. Although law firms and law schools of course interviewed job candidates, they relied enormously, and far more than they are allowed to do today, on recommendations from trusted faculty friends as the basis for choosing who to interview. It was very much the day of the old boys’ network (OBN).","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115362378","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revisiting the Accredited Investor Standard","authors":"S. Haq","doi":"10.36639/mbelr.5.1.revisiting","DOIUrl":"https://doi.org/10.36639/mbelr.5.1.revisiting","url":null,"abstract":"The passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and the Jumpstart Our Business Startups (JOBS) Act provided the impetus for several changes in the financial regulatory regime. In the securities markets, Dodd-Frank included provisions that lifted a ban on general solicitation and mandated a review of the accredited investor standard. These changes, while intended to increase capital formation within our private markets, also brought to light serious investor protection issues. This note advocates for a new accredited investor standard that more accurately reflects the risks associated with investing in the private markets.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117331033","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rebutting the Fraud on the Market Presumption in Securities Fraud Class Actions: Halliburton II Opens the Door","authors":"V. E. Schwartz, Christopher E. Appel","doi":"10.36639/mbelr.5.1.rebutting","DOIUrl":"https://doi.org/10.36639/mbelr.5.1.rebutting","url":null,"abstract":"In Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), the United States Supreme Court reaffirmed the validity of the “fraud on the market” presumption underlying securities fraud class action litigation. This presumption is vital to bringing suits as class actions because it excuses plaintiffs from proving individual reliance on an alleged corporate misstatement on the theory that any public statements made by the company are incorporated into its stock price and consequently relied upon by all investors. Thus, the Court’s decision to uphold the validity of the presumption has been hailed as a significant victory for those who bring securities fraud class actions. Overlooked by many commentators is the fact that in addition to upholding the fraud on the market presumption, the Court established a new avenue for defendants to rebut the presumption at the class certification stage of a case. Defendants can now rebut the presumption before a class is certified by presenting evidence that an alleged corporate misstatement had no impact on the price of the stock. This ruling is significant because securities fraud class actions, as a practical matter, often settle after a class has been certified. This article examines what that ruling could mean for modern securities fraud class action litigation.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125391165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dual-Class Capital Structures: A Legal, Theoretical & Empirical Buy-Side Analysis","authors":"C. C. McKinnon","doi":"10.36639/mbelr.5.1.dual-class","DOIUrl":"https://doi.org/10.36639/mbelr.5.1.dual-class","url":null,"abstract":"“The advantage of a dual-class share structure is that it protects entrepreneurial management from the demands of ordinary shareholders. The disadvantage of a dual-class share structure is that it protects entrepreneurial management from the demands of shareholders.” Issuing dual classes of stock has become hotly debated since two major events transpired in 2014: (1) Facebook acquired WhatsApp for $19 billion and (2) Alibaba chose to list its shares on the New York Stock Exchange (NYSE) instead of the Hong Kong Exchange. Because dual-class managers, like those at Facebook and Alibaba, retain a controlling voting block, their decisions are immune from activist investors or others who disagree with corporate actions. This protection allowed Mark Zuckerberg to acquire WhatsApp at an enormous price that stockholders may have resisted, and it is why Alibaba chose to list on the NYSE even though its stockholders may have found the Hong Kong Exchange to be a more natural fit. This Comment seeks to determine whether the one-man decisional structures at Facebook and Alibaba—accomplished through dual classes of stock—allow such managers to undertake, what the market perceives to be, value-destroying transactions more often than their single-class counterparts.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117343189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Proposed Regulatory Change of Treatment of a Guaranteed Payment from a Partnership to a Partner","authors":"Douglas A. Kahn","doi":"10.36639/mbelr.5.2.proposed","DOIUrl":"https://doi.org/10.36639/mbelr.5.2.proposed","url":null,"abstract":"A partnership pays no federal income tax. Instead, its income, deductions, and credits are allocated among its partners at the end of its taxable year. A partnership’s distribution of cash or property in kind to a partner will be characterized as one of three distinct transactions, each of which has its own tax consequences.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128035163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Equity Investments in Microfinance in India","authors":"Hugh Manahan","doi":"10.36639/mbelr.4.2.private","DOIUrl":"https://doi.org/10.36639/mbelr.4.2.private","url":null,"abstract":"A trail connects a skyscraper in Manhattan’s Financial District to a tiny food stand in a village in the southeast Indian state of Tamil Nadu. Initially wild and overgrown, the trail now resembles a well-developed road, cleared and shaped. The trail does not connect customers to call centers or raw materials to laborers; the path connects lenders seeking abnormal returns on their investments to borrowers living in poverty. This is the path of private equity investments in microfinance. Microfinance is a powerful financial innovation that has changed personal finance in many parts of the world. While microfinance began as non-profit means of empowering low-income entrepreneurs, the promise of scale, high repayment rates, and underserved markets has made microfinance an increasingly attractive investment for profit-seeking investors. This observation is supported by an unprecedented level of private equity investment in microfinance enterprises. Microfinance’s promise as an investment opportunity is best exemplified in India, which offers a vast low-income population, low penetration of personal financial products, liberal regulatory policies, and cultural forces that support group liability structures. This Note analyzes the investment potential of microfinance through the scope of Microfinance Institutions (MFIs) in India in four parts. Part II describes the MFI business model and explores how MFIs create contractual advantages and operational efficiencies in serving low-income borrowers. Part III explores how the Reserve Bank of India regulates MFIs and the incentive effects of these regulations on MFI behavior. Part IV attempts to quantify the extent of private equity investment in MFIs. Part V analyzes why private equity firms invest in MFIs and argues that two emerging trends may make MFIs less attractive investments in the future.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124214250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Avoiding the Next Napster: Copyright Infringement and Investor Liability in the Age of User Generated Content","authors":"Truan Savage","doi":"10.36639/mbelr.4.2.avoiding","DOIUrl":"https://doi.org/10.36639/mbelr.4.2.avoiding","url":null,"abstract":"Rapid developments in digital technology over the past quarter century have made it easier than ever for people to create and instantly share content. These developments have served as the basis for countless innovations and have spawned some of today’s largest and most profitable companies. As content creation and distribution continues to evolve, businesses seek new ways to profit from these technological innovations. But while businesses continue to develop around new methods of content distribution, the law of copyright, which generally aims to encourage the creation of content, has been slow to adapt. This era of modern technological innovation thus operates in a legal environment developed primarily in the 1970s. Consequently, many innovative and groundbreaking ideas are stymied by legal conceptions that seem out of date in cyberspace. The result is excessive legal liability and disproportionate ramifications on innovation.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130946444","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}