American Business Law Journal最新文献

{"title":"The evidence regarding diversity's effect on firm performance","authors":"Jonathan Klick","doi":"10.1111/ablj.12257","DOIUrl":"https://doi.org/10.1111/ablj.12257","url":null,"abstract":"<p>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.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 2","pages":"75-93"},"PeriodicalIF":1.3,"publicationDate":"2025-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.12257","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143944815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Data privacy and the regulation of ridesharing platforms","authors":"Abbey Stemler,&nbsp;Justin W. Evans,&nbsp;Carrie Shu Shang","doi":"10.1111/ablj.12259","DOIUrl":"https://doi.org/10.1111/ablj.12259","url":null,"abstract":"<p>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.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 2","pages":"117-139"},"PeriodicalIF":1.3,"publicationDate":"2025-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143944986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The paradox of ‘non-union unions’: The risks of extending antitrust immunities without labor law's protections","authors":"Sam C. Ehrlich,&nbsp;Neal C. Ternes","doi":"10.1111/ablj.12258","DOIUrl":"https://doi.org/10.1111/ablj.12258","url":null,"abstract":"<p>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.”</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 2","pages":"95-115"},"PeriodicalIF":1.3,"publicationDate":"2025-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143944977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The venture corporation","authors":"Gad Weiss","doi":"10.1111/ablj.12256","DOIUrl":"https://doi.org/10.1111/ablj.12256","url":null,"abstract":"<p>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.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 1","pages":"45-70"},"PeriodicalIF":1.3,"publicationDate":"2025-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143424062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Protecting the protectors: Whistleblowing and retaliation in the compliance arena","authors":"Jeffrey R. Boles,&nbsp;Leora F. Eisenstadt,&nbsp;Jennifer M. Pacella","doi":"10.1111/ablj.12255","DOIUrl":"https://doi.org/10.1111/ablj.12255","url":null,"abstract":"<p>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.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 1","pages":"23-44"},"PeriodicalIF":1.3,"publicationDate":"2025-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.12255","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143424061","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Joke or counterfeit? Balancing trademark parody and consumer safety in the edibles market","authors":"Hannah R. Weiser,&nbsp;Daniel R. Cahoy","doi":"10.1111/ablj.12254","DOIUrl":"https://doi.org/10.1111/ablj.12254","url":null,"abstract":"<p>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, <i>Jack Daniel's Properties, Inc. v. VIP Products LLC</i> and <i>Vidal v. Elster</i>, 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.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 1","pages":"5-21"},"PeriodicalIF":1.3,"publicationDate":"2025-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"143423723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Derivatives markets fragilities and the energy transition","authors":"Colleen M. Baker,&nbsp;James W. Coleman","doi":"10.1111/ablj.12251","DOIUrl":"https://doi.org/10.1111/ablj.12251","url":null,"abstract":"<p>It is common knowledge that climate change concerns have prompted countries around the world to plan for a reduction in their fossil fuel dependencies. Yet while much attention has been placed on new low-carbon sources of energy such as wind, solar, and nuclear, comparatively little focus has centered on the commodity inputs, critical metals, needed to create this clean energy. In this article, we argue that at the heart of the energy transition is a commodities transition, representing an unprecedented international reliance on critical metals, which have traditionally been capricious commodities traded in global markets. Indeed, nations around the world have begun to stockpile these geographically concentrated, geopolitically potent materials which are poised to take center stage. This critical commodities transition accompanying the energy transition is underappreciated in the legal scholarship despite its widespread implications for many areas, including financial regulation. We use the story of the London Metal Exchange's March 2022 nickel debacle to turn a spotlight on this development and to highlight several areas of existing regulatory frameworks in derivatives markets that are ripe for reexamination given this commodities evolution. In doing so, this article sets the stage for a research agenda that will examine how regulators and financial innovators can build strong metal markets to enable secure metals supply chains and to provide the basis for a sustainable energy transition.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"61 4","pages":"285-302"},"PeriodicalIF":1.3,"publicationDate":"2024-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142749030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Joint value creation: A functional, proactive approach to contract governance","authors":"Anna Hurmerinta-Haanpää,&nbsp;Gerlinde Berger-Walliser","doi":"10.1111/ablj.12252","DOIUrl":"https://doi.org/10.1111/ablj.12252","url":null,"abstract":"<p>The recurrent series of crises demonstrates that supply chains are frequently susceptible to disruption. It is imperative they adapt to evolving economic, ecological, social, and geopolitical circumstances. Economists and management scholars have introduced contract governance models that facilitate adaptation and collaboration; however, these models have been largely ignored in the legal field. This article addresses a significant gap in the existing literature on commercial contracts, which is currently fragmented between legal, economic, and organizational perspectives. The article proposes a functional, proactive contracting framework focused on joint value creation. The framework integrates insights from transaction cost economics, relational contract theory, relational view, functional contracting, proactive contracting, and legal design. It provides an instrument for contracting parties to co-create contracts that enhance performance, reduce transaction costs, devise contingency plans, and utilize contracts as user-centric tools to support relational governance practices and sustainability. A case study on Finnish Alliance Model Contract Clauses demonstrates the benefits of this approach in fostering more collaborative and resilient commercial contracts.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"61 4","pages":"261-283"},"PeriodicalIF":1.3,"publicationDate":"2024-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.12252","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142749029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The sovereign climate debt trap and natural disaster clauses","authors":"Stephen Kim Park,&nbsp;Tim R Samples","doi":"10.1111/ablj.12253","DOIUrl":"https://doi.org/10.1111/ablj.12253","url":null,"abstract":"<p>The growing prevalence and magnitude of climate-related natural disasters are perpetuating a climate debt trap in which recovery costs compound over time, progressively eroding the capacity of governments to obtain financing to respond to them. How can countries participating in global financial markets respond? This article focuses on natural disaster clauses in sovereign debt contracts, which enable a national government to temporarily suspend payments to its creditors when a natural disaster strikes the country. Natural disaster clauses are analyzed and critiqued as an example of contract innovation amidst ongoing debates about legal reform of the global financial system in response to climate change.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"61 4","pages":"243-260"},"PeriodicalIF":1.3,"publicationDate":"2024-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142748894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Public pension contract minimalism","authors":"T. Leigh Anenson,&nbsp;Hannah R. Weiser","doi":"10.1111/ablj.12250","DOIUrl":"https://doi.org/10.1111/ablj.12250","url":null,"abstract":"<p>The national pension debt and COVID crises have collided. Post-pandemic economic decline has escalated existing financial strains on state and local pension plans, impacting workers and the public welfare. With unfunded obligations exceeding one trillion dollars, many of these plans are in jeopardy. But the movement to reform government pension contracts has yet to adopt an anchoring idea, leaving judicial decisions in disarray and policymakers without guidance about how to shore up troubled retirement systems. The crux of the problem is the many meanings of contract under state and US Contract Clauses that prevent pension reform. This Essay endorses a promising path forward—contract minimalism. “Contract minimalism” concentrates on the duration of government pension contracts. It posits that public and private employment law should be treated the same. Like its private law counterpart, public sector employment at-will ought to consist of a daily contract interval. A contract-a-day concept entitles employers to change the plan prospectively, with employees receiving a proportionate share of benefits for work performed. Just as several agreements safeguard salaries for labor, they should also mirror the protection afforded to deferred benefits like pensions. Contract minimalism additionally puts public and private sector employers on the same legal footing as to the authority to change pension plan terms. Thus, it aligns public pension benefits with overlapping fields of law, placing them on a firm conceptual foundation. The minimalist approach also has the advantage over approaches that are insufficiently attentive to scarce government resources or employee old-age security. By protecting pension benefits early and incrementally, it advances a middle path with fairer, more coherent results. In the present post-pandemic era of hard choices, minimalism provides an equilibrium between the over- and under-protection of pension benefits.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"61 4","pages":"303-309"},"PeriodicalIF":1.3,"publicationDate":"2024-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.12250","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142748976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}