American Business Law Journal最新文献_第10页

Trade Secrecy Injunctions, Disclosure Risks, and eBay's Influence 商业秘密禁令、披露风险和eBay的影响

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-11-21 DOI: 10.1111/ablj.12153

Deepa Varadarajan

{"title":"Trade Secrecy Injunctions, Disclosure Risks, and eBay's Influence","authors":"Deepa Varadarajan","doi":"10.1111/ablj.12153","DOIUrl":"https://doi.org/10.1111/ablj.12153","url":null,"abstract":"Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four-factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post-eBay has been viewed as beneficial for the patent system.Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard-to-quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 4","pages":"879-925"},"PeriodicalIF":1.2,"publicationDate":"2019-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12153","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91857397","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}

引用次数: 0

Bribing the Machine: Protecting the Integrity of Algorithms as the Revolution Begins 贿赂机器:在革命开始时保护算法的完整性

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-11-21 DOI: 10.1111/ablj.12151

Philip M. Nichols

{"title":"Bribing the Machine: Protecting the Integrity of Algorithms as the Revolution Begins","authors":"Philip M. Nichols","doi":"10.1111/ablj.12151","DOIUrl":"10.1111/ablj.12151","url":null,"abstract":"In the Industrial Revolution, machines took on the burden of physical labor; in the Big Data Revolution, machines are taking on the tasks of making decisions. Algorithms are the rules and processes that enable machines to make those decisions. Machines will make many decisions that affect general well-being. This article addresses a threat to the efficacy of those decisions: the intentional distortion or manipulation of the underlying algorithm so that machines make decisions that benefit self-interested third parties, rather than decisions that enhance public well-being. That threat has not been recognized or addressed by legal thinkers or policy makers. This article first examines the lifecycle of an algorithm, and then demonstrates the likelihood that self-interested third parties will attempt to corrupt the development and operation of algorithms. The article then argues that existing mechanisms cannot protect the integrity of algorithms. The article concludes with a discussion of policies that could protect the integrity of algorithms: transparency in both the development of and the content of algorithms that affect general well-being and holding persons who corrupt the integrity of such algorithms accountable. Just as the Industrial Revolution eventually improved the quality of life for many, so too does the Big Data Revolution offer enhancement of general well-being. That promise, however, will only be realized if policy makers take action to protect the integrity of underlying algorithms now, at the beginning of the revolution.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 4","pages":"771-814"},"PeriodicalIF":1.2,"publicationDate":"2019-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12151","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44894906","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}

引用次数: 5

How Behavioral Science Ultimately Fails Retirement Savers: A Noble Experiment 行为科学最终如何让退休储蓄者失败:一个高尚的实验

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-11-21 DOI: 10.1111/ablj.12150

Dana M. Muir

{"title":"How Behavioral Science Ultimately Fails Retirement Savers: A Noble Experiment","authors":"Dana M. Muir","doi":"10.1111/ablj.12150","DOIUrl":"10.1111/ablj.12150","url":null,"abstract":"Behavioral scientists boast that their insights have increased savings in 401(k) plans. Evidence shows that careful use of default decision settings and nudges can prevent decisional errors and encourage behavior that aligns with public policy while retaining individual power of choice. Indeed, even the Swedish National Academy of Sciences highlighted the effect of his behavioral science work on retirement savings when it awarded the 2017 Nobel Prize in economics to Professor Richard Thaler. This article shows, though, that, unlike the three plan default settings attributed to behavioral science insights, the default setting that I term automatic retention fails. That failure means too many savers take affirmative actions to move (rollover) assets from their 401(k) plans to individual retirement accounts (IRAs). Primarily because of rollovers, IRAs hold more than 11.5% of U.S. household financial assets. However, usually the decision to roll over is not an optimal choice for the saver. This last mile problem undermines the goal of the first three default settings to help employees build long-term retirement savings. This article examines research on what causes default settings to be slippery, as is the case for automatic retention, instead of sticky, as is the case for the other 401(k) default settings. It then evaluates three categories of potential interventions to mitigate the popularity of rollovers: aggressive regulation, expansion of fiduciary obligation, and use of incremental impeding altering rules. It concludes that adoption of incremental impeding altering rules would be both politically feasible and effective in increasing the stickiness of the automatic retention default setting.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 4","pages":"707-770"},"PeriodicalIF":1.2,"publicationDate":"2019-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12150","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43981920","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}

引用次数: 1

New Battles and Battlegrounds for Mandatory Arbitration After Epic Systems, New Prime, and Lamps Plus 继Epic Systems、New Prime和Lamps Plus之后，强制仲裁的新战场和战场

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-11-21 DOI: 10.1111/ablj.12152

Stephanie Greene, Christine Neylon O'Brien

{"title":"New Battles and Battlegrounds for Mandatory Arbitration After Epic Systems, New Prime, and Lamps Plus","authors":"Stephanie Greene, Christine Neylon O'Brien","doi":"10.1111/ablj.12152","DOIUrl":"10.1111/ablj.12152","url":null,"abstract":"The Supreme Court's recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems Corporation v. Lewis upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus, Inc. v. Varela rejected a state law interpretation of a contract provision to find that parties to an employment contract intend individual arbitration absent reference to group arbitration. A unanimous Court in New Prime v. Oliveira interpreted the FAA to include independent contractors under the transportation worker exemption, reinvigorating the battle over what it means to be engaged in interstate commerce to qualify for the exemption. These decisions resolved some disputes about the breadth of the FAA, but other questions remain. In the wake of Epic Systems and Lamps Plus, state courts and legislatures are testing the boundaries of the FAA's saving clause, with limited success. Confidentiality provisions, frequently associated with arbitration agreements, may unlawfully interfere with employees’ federal labor law rights. This article recommends that Congress amend the FAA to address these issues by excluding all workers engaged in interstate commerce, not just transportation workers, because the Court has strayed far from the original intent of the Act—to enforce commercial agreements in which the parties had equal bargaining power. State legislation also should provide guidance on what makes arbitration voluntary and fair, and provide a choice to employees on collective action, forum, and confidentiality.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 4","pages":"815-878"},"PeriodicalIF":1.2,"publicationDate":"2019-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12152","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41906961","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}

引用次数: 0

The Controlling Shareholder Enforcement Gap 控股股东执行差距

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-08-20 DOI: 10.1111/ablj.12147

Itai Fiegenbaum

{"title":"The Controlling Shareholder Enforcement Gap","authors":"Itai Fiegenbaum","doi":"10.1111/ablj.12147","DOIUrl":"https://doi.org/10.1111/ablj.12147","url":null,"abstract":"The regulation of controlling shareholder related-party transactions is one of corporate law's animating concerns. A recent Chancery Court decision extends the double approval framework endorsed by the Delaware Supreme Court—independent director committees and a majority of the minority shareholders—to non-freezeout transactions. This article explains why the Chancery Court's innovation does not decrease the risk faced by minority shareholders. Subjecting a transaction to the double approval framework is a voluntary decision. Transaction planners will willingly traverse this path if the benefits outweigh the loss in deal certainty and attendant costs. When almost every freezeout is challenged in court, the voluntary application of this framework is the logical outcome. The calculus in the non-freezeout context leads to a different result. Non-freezeouts must be challenged by a derivative lawsuit. The procedural hurdles inherent in the derivative mechanism affect both the demand for the ratification framework and the incentive to comply. Without a tangible threat of a lawsuit to coax voluntary compliance in the non-freezeout setting, transaction planners have nothing to gain by subjecting the deal to the double approval gauntlet. This article's analysis reveals a large gap in the enforcement of self-dealing transactions. Recent high-profile litigation exposes questionable adherence to the double approval framework for obviously conflicted non-freezeout transactions. The paucity of derivative lawsuits foretells a troubling fate for similar transactions at less enticing litigation targets. Worse yet, the superficial step toward improved minority shareholder protection stifles the discussion on additional reform.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 3","pages":"583-644"},"PeriodicalIF":1.2,"publicationDate":"2019-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12147","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91852479","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}

引用次数: 2

Data Analytics and the Erosion of the Work/Nonwork Divide 数据分析与工作/非工作鸿沟的侵蚀

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-08-20 DOI: 10.1111/ablj.12146

Leora Eisenstadt

{"title":"Data Analytics and the Erosion of the Work/Nonwork Divide","authors":"Leora Eisenstadt","doi":"10.1111/ablj.12146","DOIUrl":"10.1111/ablj.12146","url":null,"abstract":"Numerous statutes and common law doctrines conceive of a dividing line between work time and nonwork time and delineate the activities that must be compensated as work. While technological innovations and increasing desires for workplace flexibility have begun to erode this divide, it persists, in part, because of the ways in which the division protects employers and employees alike. Nonetheless, the explosion of data analytics programs that allow employers to monitor and rely upon a worker's off-duty conduct will soon weaken the dividing line between work and nonwork in dramatically greater and more troubling ways than ever before. The emergence of programs allowing employers to track, predict, rely upon, and possibly control nonwork activities, views, preferences, and emotions represents a major blurring of the line between work and nonwork. This article contends that these advances in data analytics suggest a need to reexamine the notion of work versus nonwork time and to question whether existing protections adequately consider a world in which these lines are so significantly muddled. As a society, we need to acknowledge the implications of the availability of massive quantities of employees’ off-duty data and to decide whether and how to regulate its use by employers. Whether we, as a society, decide to allow market forces to dictate acceptable employer behavior, choose to regulate and restrict the use of off-duty data for adverse employment decisions, or find some middle ground that requires disclosure and consent, we should choose our own course rather than allowing the technology to be the guide.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 3","pages":"445-506"},"PeriodicalIF":1.2,"publicationDate":"2019-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12146","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48200098","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}

引用次数: 0

Incomplete Clearinghouse Mandates 不完整的票据交换所授权

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-08-20 DOI: 10.1111/ablj.12149

Colleen M. Baker

{"title":"Incomplete Clearinghouse Mandates","authors":"Colleen M. Baker","doi":"10.1111/ablj.12149","DOIUrl":"https://doi.org/10.1111/ablj.12149","url":null,"abstract":"In the 2007–08 financial crisis, over-the-counter (OTC) derivatives triggered the collapse of colossal financial institutions. In response, global policy makers instituted clearinghouse mandates. As a result, all standardized OTC derivatives must now use clearinghouses, and global financial market stability now depends upon these institutions. Yet certain underlying legal and regulatory structures threaten to undermine clearinghouse stability, particularly were a significant clearinghouse to become distressed. This article argues that the clearinghouse mandates are incomplete in that they fail to reform these problematic arrangements.As with electric utilities, the lights at the financial market infrastructures known as clearinghouses must always be on. Yet the legal frameworks for handling a distressed clearinghouse, the problem of clearinghouse recovery, and resolution, remain uncertain. This article advances debate on this issue. It argues that recovery, a private market restructuring process, can be conceptualized as a bargaining game dependent upon time-critical cooperation between a clearinghouse and members. This article uses transaction cost economics to demonstrate, however, that certain underlying legal and regulatory structures could work at cross-purposes to this necessary cooperation, and actually increase its cost. Based upon this analysis, it proposes reforms designed to ensure that parties’ incentives promote efficient recovery. In the absence of efficient recovery frameworks, the path of a distressed, significant clearinghouse is likely to resemble that of the government-backed mortgage lenders whose fate more than ten years after their entry into conservatorship remains uncertain. This article aims to help avoid a repeat of this history.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 3","pages":"507-581"},"PeriodicalIF":1.2,"publicationDate":"2019-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12149","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91852480","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}

引用次数: 1

The Convergence of Financial and ESG Materiality: Taking Sustainability Mainstream 财务重要性与ESG重要性的融合:引领可持续发展主流

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-08-20 DOI: 10.1111/ablj.12148

Ruth Jebe

引用次数: 0

Equating U.S. Tax Treatment of Dividends and Capital Gains for Foreign Portfolio Investors 美国对外国投资组合投资者股息和资本收益的同等税收待遇

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-05-20 DOI: 10.1111/ablj.12140

Stanley Veliotis

{"title":"Equating U.S. Tax Treatment of Dividends and Capital Gains for Foreign Portfolio Investors","authors":"Stanley Veliotis","doi":"10.1111/ablj.12140","DOIUrl":"10.1111/ablj.12140","url":null,"abstract":"The U.S. tax law equates the tax rate on dividends and long-term capital gains on stock owned by U.S. citizens and residents. However, the taxation of these two types of rewards in the hands of foreign portfolio investors remains dramatically different from each other, with the capital gain being fully exempt. Several reasons support this article's proposal to no longer exempt these gains. Extending finance theory and prior normative tax research, this article argues that foreigners’ portfolio dividends and capital gains should be taxed in the same manner because they are economically equivalent and emanate from the same source. Three recent empirical developments also support repeal of the foreigner's exemption. First, there is now extensive use by U.S. corporations of stock repurchases—which are taxed to selling shareholders as capital gain—as a form of corporate payout that was in the past primarily accomplished through dividends. Second, foreign ownership of U.S. stocks has continued to increase, with an estimated one-third of these stocks owned by foreigners. Third, the modern tax compliance environment—including aspects of the Foreign Account Tax Compliance Act that apply to foreigners—reduces past congressional and academic concerns about enforcing the taxation of foreigners’ portfolio gains.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 2","pages":"345-390"},"PeriodicalIF":1.2,"publicationDate":"2019-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12140","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42280359","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}

引用次数: 3

Personal Data and the GDPR: Providing a Competitive Advantage for U.S. Companies 个人数据和GDPR:为美国公司提供竞争优势

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2019-05-20 DOI: 10.1111/ablj.12139

W. Gregory Voss, Kimberly A. Houser

{"title":"Personal Data and the GDPR: Providing a Competitive Advantage for U.S. Companies","authors":"W. Gregory Voss, Kimberly A. Houser","doi":"10.1111/ablj.12139","DOIUrl":"10.1111/ablj.12139","url":null,"abstract":"The European Union's General Data Protection Regulation (GDPR) became applicable in May 2018. Due to the GDPR's extraterritorial scope, which could result in massive fines for U.S. companies, comparative data privacy law is of great current interest. In June 2018, California passed its own Consumer Privacy Act, echoing some of the provisions of the GDPR. Despite the many articles comparing the two schemes of law, little attention has been given to the foundation of these laws, that is, what exactly encompasses the data referred to by these laws? By understanding how the term “personal data” or “personal information” is defined in both jurisdictions, and why these definitions and the treatment of protected data are so different, companies can strategize to take advantage of these developments in the European Union. After explaining the differences in how data is treated in the United States and the European Union by exploring the definitions, regulations, and court cases, we will explore the five legal strategy pathways that companies might pursue with respect to the legal aspects of data transfer and privacy law compliance. While these strategies range from ignoring the law to adopting the European model worldwide, this analysis of legal strategy reveals a means for companies to gain a competitive advantage through their adoption of a worldwide compliance scheme.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"56 2","pages":"287-344"},"PeriodicalIF":1.2,"publicationDate":"2019-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12139","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46632072","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}

引用次数: 20