American Business Law Journal最新文献_第9页

NAFTA 2.0 and LGBTQ Employment Discrimination NAFTA 2.0与LGBTQ就业歧视

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2020-03-18 DOI: 10.1111/ablj.12154

Alex Reed

引用次数: 0

The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law 准本质规则的无效性：欧盟和美国反垄断法对信息交换的规范

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2020-03-18 DOI: 10.1111/ablj.12155

Kenneth Khoo, Jerrold Soh

{"title":"The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law","authors":"Kenneth Khoo, Jerrold Soh","doi":"10.1111/ablj.12155","DOIUrl":"https://doi.org/10.1111/ablj.12155","url":null,"abstract":"It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand-alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"57 1","pages":"45-111"},"PeriodicalIF":1.2,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12155","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71972343","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

Regulatory Categorization and Arbitrage: How Daily Fantasy Sports Companies Navigated Regulatory Categories Before and After Legalized Gambling 监管分类和套利：每日幻想体育公司在赌博合法化前后如何导航监管分类

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2020-03-18 DOI: 10.1111/ablj.12156

John T. Holden J.D., Ph.D., Christopher M. McLeod Ph.D., Marc Edelman J.D.

{"title":"Regulatory Categorization and Arbitrage: How Daily Fantasy Sports Companies Navigated Regulatory Categories Before and After Legalized Gambling","authors":"John T. Holden J.D., Ph.D., Christopher M. McLeod Ph.D., Marc Edelman J.D.","doi":"10.1111/ablj.12156","DOIUrl":"https://doi.org/10.1111/ablj.12156","url":null,"abstract":"This article uses the context of daily fantasy sports (DFS) to analyze how companies use strategic categorization in regulatory arbitrage. Recent actions by two leaders in the DFS industry, DraftKings and FanDuel, provide an ideal context to study this issue. DraftKings and FanDuel categorized themselves differently to different audiences at different times in a manner that evaded categorization as an illegal gambling activity, only to then dominate the sports betting market after the Supreme Court's decision in Murphy v. NCAA. We examine how this type of strategic categorization, which we call “fluid categorization,” raises important questions for regulators and others concerned with regulatory arbitrage. We also explore how fluid categorization provides lessons for other businesses. While this article has broad implications for the sports gambling marketplace, it also contributes to meaningful discourse for the broader business community, as its findings are relevant to industries beyond DFS that offer gray market products and seek to fight categorical labels until there is a reclassification event.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"57 1","pages":"113-167"},"PeriodicalIF":1.2,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12156","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71965300","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: 7

Can Common Business Practices Ever Be Anticompetitive? Redefining Monopolization 常见的商业行为会具有反竞争性吗？重新定义垄断

IF 1.2 3区社会学

American Business Law Journal Pub Date : 2020-03-18 DOI: 10.1111/ablj.12157

Konstantinos Stylianou

{"title":"Can Common Business Practices Ever Be Anticompetitive? Redefining Monopolization","authors":"Konstantinos Stylianou","doi":"10.1111/ablj.12157","DOIUrl":"https://doi.org/10.1111/ablj.12157","url":null,"abstract":"For most of its modern history, antitrust law distinguished between normal competition and monopolization by looking for merit, legitimate business justifications, or efficiencies in the challenged business conduct. These proxies were seen as appropriate because they served antitrust law's welfare objectives well. However, the universal adoption of these proxies has overshadowed significant shortcomings, chief among them being that firms do not think in terms of legitimate business justifications or efficiencies, but rather in terms of long-term sustainability and appropriation of value. As a result, antitrust law becomes detached from the very subjects it purports to regulate. Against the backdrop of the recent resurgence of enforcement activity, particularly involving tech giants, this article attempts a conceptualization of monopolization that does not revolve around merit in any form or function. Instead it introduces the proxy of commonness of business practices to determine their legality. This helps highlight the importance of considering “how things are done” in the relevant market, and helps reground antitrust law in business realities, which can enhance the heuristic mechanism of distinguishing between normal and anticompetitive practices. To prove this point the article develops an error test framework, through which it compares current tests with the proposed test in terms of their error footprint and concludes that the integration of the commonness parameter delivers better results. Ultimately, the inquiry undertaken herein is not only about constructing a conception of normal competition different from the only standard we currently have, that is, variants of merit, but also about shifting the conversation from how to fine-tune existing standards to how to capture a more complete conception of competition.","PeriodicalId":54186,"journal":{"name":"American Business Law Journal","volume":"57 1","pages":"169-221"},"PeriodicalIF":1.2,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/ablj.12157","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71965299","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

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