American Business Law Journal最新文献

{"title":"Curbing multinational digital tax avoidance with the general anti-avoidance rule","authors":"Kathryn Kisska-Schulze,&nbsp;Robert C. Bird","doi":"10.1111/ablj.70010","DOIUrl":"https://doi.org/10.1111/ablj.70010","url":null,"abstract":"<p>Large multinational companies (MNCs) are increasingly leveraging the enormous value embedded in the global digital economy. This has resulted in numerous innovations; however, it has likewise resulted in the loss of billions of dollars in tax revenue to governments due to outdated laws that generally assume a brick-and-mortar economy and residence-based taxation. Governments have responded with a multitude of efforts to capture lost revenue and update tax laws to meet the realities of the digital era, but with only partial success. Resistance from MNCs and disagreements among national governments resulted in significant delays and half-hearted responses. The result is that current laws do not sufficiently capture lost tax revenue from an increasingly valuable digital environment. This article proposes that a robust general anti-avoidance rule (GAAR) can help alleviate the problem of costly tax avoidance by MNCs. A GAAR is a mechanism that gives governments a general power to deny taxpayers the tax benefit of a transaction when the transaction's primary purpose is merely to circumvent the payment of taxes. This article defines the GAAR, presents the advantages and disadvantages of adopting GAARs, and shows how GAARs can be particularly effective in civil law systems. This article then highlights New Zealand's GAAR as a model of effective drafting and enforcement to stop tax avoidant behavior. Finally, this article presents several carrots and sticks, with particular emphasis on a regime enacted in the United Kingdom that specifically deters serial tax avoiders, that can further strengthen GAARs introduced at the national level. The article concludes that GAARs, utilized effectively and enacted in conjunction with strong tax laws, are a necessary and important tool for optimizing enforcement of legitimate tax laws in an increasingly global and digital economy.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"63 1","pages":"33-55"},"PeriodicalIF":1.5,"publicationDate":"2026-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.70010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147569221","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":"Rethinking the contract-failure theory","authors":"Yumiao Wang","doi":"10.1111/ablj.70009","DOIUrl":"https://doi.org/10.1111/ablj.70009","url":null,"abstract":"<p>The contract-failure theory posits that the nonprofit form can be an indicator of high product quality because the nondistribution constraint reduces the nonprofit manager's financial benefits from cheating. This would give nonprofits an advantage over for-profit firms when consumers cannot determine product quality and thus explains nonprofits' existence. This article finds that nonprofits are not generally more trustworthy. It is methodologically wrong to compare the nonprofit and for-profit managers' personal benefits from cheating to one another. Instead, both nonprofit and for-profit managers will act to maximize their respective utility, seeking either higher income and/or more leisure. Since providing low-quality products leads to both less effort and a lower cost, both nonprofits and for-profit firms will cheat. Further, providers cannot overcharge because there are no informational asymmetries about product price. The market price in contract failure situations will drop, forcing both nonprofits and for-profit firms to offer only the lowest quality product. Shifting to nonprofit purposes requires nonprofits to allocate part of their resources through giving, which makes some of their transactions trustworthy. However, consumers usually cannot identify trustworthy transactions. Adopting the nonprofit form will not make an untrustworthy provider trustworthy; and trustworthy providers are also not necessarily more likely than untrustworthy ones to take that form because it costs untrustworthy-inefficient providers even less to do so. The nonprofit form thus cannot be an effective signal of high quality. Even if nonprofits were more trustworthy, this cannot explain why nonprofits exist. It is the supply side, which only partly overlaps the contract failure situations, that drives the nonprofit sector. The existence of other informational-asymmetries-relieving mechanisms also reduces consumers' demand for the nonprofit form. In debunking the contract-failure theory, this article will be useful for scholars examining nonprofits' behavior and the justification for the nonprofit sector.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"63 1","pages":"5-31"},"PeriodicalIF":1.5,"publicationDate":"2026-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.70009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147565245","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":"Antitrust for the fintech era","authors":"Gregory Day,&nbsp;Lindsay Sain Jones","doi":"10.1111/ablj.70008","DOIUrl":"https://doi.org/10.1111/ablj.70008","url":null,"abstract":"<p>The emerging relationship between fintechs and banks has revealed antitrust's antiquation. At one time, scholars predicted that fintechs could democratize banking while providing a critical source of competition. But then banks began to acquire their digital rivals: about 900 acquisitions of fintechs have taken place since 2021. By merging or partnering, banks have squelched competition in an already concentrated market. Antitrust's absence in bank-fintech deals is additionally curious because enforcers recognize that digital platforms such as fintechs are prone to monopolization. Despite this landscape, enforcers have asserted that the rise of fintechs should make antitrust even more deferential to bank mergers. The problem is that antitrust law adheres to an orthodox brand of economic theory about how people ostensibly behave. At its root, antitrust cannot intervene in most scenarios because rational actors are supposed to correct markets. This article shows that consumers in the digital era cannot always detect or mitigate their injuries, suggesting that antitrust is underenforced in fintech and other innovative sectors. Just as troublesome is the outdated assumption that consumers suffer harm as a collective group. With digital markets, anticompetitive conduct may injure only certain people such as low-income persons. Recognizing these issues, the Department of Justice (DOJ) and Federal Trade Commission (FTC) issued new merger guidelines that seem to jettison outdated assumptions about when markets will self-correct. The primary assertion of this article is that to preserve the promise of fintech and its ability to democratize financial services, the courts should embrace the agencies’ new approach.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"63 1","pages":"57-78"},"PeriodicalIF":1.5,"publicationDate":"2026-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.70008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147568561","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":"Compelling private sport speech","authors":"Thomas A. Baker III,&nbsp;John T. Holden,&nbsp;Sarah Pack","doi":"10.1111/ablj.70012","DOIUrl":"https://doi.org/10.1111/ablj.70012","url":null,"abstract":"<p>The intermingling of sport and political speech has become increasingly poignant. Although basketball star Michael Jordan has now clarified that his famous statement that “Republicans buy sneakers, too” was made in jest when asked about why he did not make political statements, Michael Jordan was well within his rights to avoid the political spotlight and reserve his political and social contributions for more discreet settings. Things have changed since Jordan's playing days in the 1990s; many contemporary athletes promote their activism as part of their commercial identities. The rise in athlete activism has not, however, reduced athlete interest in being “like Mike” by not speaking. In fact, the opposite might be true, as athletes may have a stronger sense of the causes they desire to support, as well as how they are willing to assume the risks associated with social and political activism. Nevertheless, the teams and leagues that make up our sports industry are also developing activist, or at least social, identities and are within their rights to do so. Teams, leagues, and other sport or corporate entities are permitted to engage in corporate social activism (CSA) on causes that are important to them. This Article explores the underexamined world of compelled speech in the realm of private employers. The Article uses the context of private sports leagues to examine the ability of individuals to resist efforts by private employers to compel speech. Furthermore, we extended the scope of our investigation to include examination of compelled speech regulation in the multibillion-dollar industry of collegiate sports. In fact, the heightened degree of institutional control that athletic programs exercise over the lives and careers of college students makes them particularly vulnerable to free speech compulsion that, in some cases, could violate the First Amendment. Our research culminates in the development of suggestions that were formulated based on a thorough survey of the relevant case law and literature on the subject of compelled speech.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"63 1","pages":"79-99"},"PeriodicalIF":1.5,"publicationDate":"2026-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.70012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147563251","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":"Building a restructuring hub: Lessons from Singapore","authors":"Aurelio Gurrea-Martínez","doi":"10.1111/ablj.70004","DOIUrl":"https://doi.org/10.1111/ablj.70004","url":null,"abstract":"<p>This article seeks to analyze the legal, market, and institutional features needed to become an international hub for debt restructuring. To that end, it examines the strategy adopted by Singapore as well as the market and institutional factors generally found in other leading legal and financial centers such as the United States, the United Kingdom, and Hong Kong. It is argued that in jurisdictions that have traditionally had creditor-oriented insolvency systems, such as Singapore, the United Kingdom, and Hong Kong, one of the primary challenges when enhancing the restructuring framework for debtors is ensuring that the insolvency system remains protective of the interests of the creditors. Otherwise, a reform that seeks to support the real economy may end up doing more harm than good, given that creditors may respond by increasing the cost of debt or restricting the availability of credit, ultimately harming firms' access to finance and the promotion of economic growth. Drawing on a novel insolvency index that measures the attractiveness of reorganization procedures from the perspective of debtors, secured creditors, and general unsecured creditors, this article shows how the United States managed to design an insolvency system that is attractive to both debtors and creditors and how Singapore and the United Kingdom have recently enhanced their restructuring framework for debtors while continuing to be attractive jurisdictions for lenders. Therefore, the experiences of these jurisdictions provide valuable lessons for countries seeking to improve their restructuring frameworks. It will be argued, however, that enhancing a country's insolvency and debt restructuring laws represents only the first step toward becoming a restructuring hub. The sophistication of the judiciary, the development of the restructuring ecosystem, and other external factors, such as the international recognition of reorganization procedures, will also play an essential role in the success of a jurisdiction seeking to become an international hub for debt restructuring.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 4","pages":"271-287"},"PeriodicalIF":1.5,"publicationDate":"2025-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.70004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145555659","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":"Strategic bankruptcies and systemic shocks: rethinking corporate reset in today's economy","authors":"Robert J. Landry III,&nbsp;Nizan Geslevich Packin","doi":"10.1111/ablj.70006","DOIUrl":"https://doi.org/10.1111/ablj.70006","url":null,"abstract":"","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 4","pages":"245-249"},"PeriodicalIF":1.5,"publicationDate":"2025-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145555684","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":"Insolvency and systemic risks: The macroeconomic costs of director duties in crisis","authors":"Adi Marcovich Gross","doi":"10.1111/ablj.70007","DOIUrl":"https://doi.org/10.1111/ablj.70007","url":null,"abstract":"<p>Traditional insolvency duties are designed to protect creditors, yet in times of financial crisis, they may lead to a wave of bankruptcies. This Article challenges the assumption that director insolvency duties always serve creditor interests, arguing that they can generate “congestion costs”—a surge in bankruptcy cases that overwhelms courts and floods markets with distressed assets at fire-sale prices. Drawing on a comparative analysis of legal responses in Germany, Australia, and the United States during the COVID-19 pandemic, this Article demonstrates how the presence or absence of rigid insolvency duties can affect bankruptcy congestion and premature filings during times of crisis. To address these concerns, this Article proposes a designated carve-out, providing temporary relief from insolvency duties during macroeconomic shocks. Where legal reform is impractical, it suggests alternative contractual solutions such as automatic debt deferrals. By integrating macroeconomic considerations into insolvency law, this Article reframes the role of director duties in corporate governance and financial stability. This Article concludes that flexible insolvency frameworks are essential to building crisis-resilient markets.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 4","pages":"251-269"},"PeriodicalIF":1.5,"publicationDate":"2025-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/ablj.70007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145555745","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":"Bankruptcy Law's doctrinal evolution: An empirical study","authors":"Alex Zhicheng Huang","doi":"10.1111/ablj.70005","DOIUrl":"https://doi.org/10.1111/ablj.70005","url":null,"abstract":"<p>Despite the stability of the formal Bankruptcy Code, an influential literature suggests a paradigm shift from debtor control to lender control in the actual processing of Chapter 11 cases. Yet, while existing studies highlight who now benefits more from case outcomes, how the doctrinal case content has evolved amidst this paradigm shift remains unexplored. To address this gap, I examine the doctrinal evolution of Chapter 11 cases through citation practices. In bankruptcy law, judges are required to cite sections and co-cite doctrinally related code sections to justify their decisions, similar to how precedents are co-cited. The citation practices enable a systematic examination of corporate reorganization law using information from 6439 bankruptcy opinions, revealing a shift toward a closer relationship between operational and distributional sections. These two types of sections govern critical bankruptcy decisions: operational sections oversee firm activities related to asset deployment and securing financing, while distributional sections regulate decisions concerning creditors' priority and payoffs. Both individual section co-citation analysis and the global examination based on community detection and text analysis demonstrate that these two categories of sections have transitioned from being infrequently co-cited to being frequently co-cited. This article explains the strengthened co-citation relationship between operational and distributional sections as a result of a shift in business transaction structures. In modern bankruptcy, distributional decisions are increasingly made simultaneously with operational decisions—the bundling structure, rather than the traditional unbundled structure. This bundling serves as the mechanism through which lender control is exercised as it sidesteps the priority rule in favor of certain senior lenders. As judges oversee more bundled transactions, sections of different types, implicitly or explicitly, are co-cited more frequently. This study systematically identifies the doctrinal shift from unbundling to bundling for the first time. By linking case content to outcomes, this study enhances our understanding of the bankruptcy law paradigm shift. Furthermore, this network approach to addressing the inconsistency between judicial practice and formal law holds potential in other fields.</p>","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"62 4","pages":"289-312"},"PeriodicalIF":1.5,"publicationDate":"2025-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145555629","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 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}