Business Commons^™

Innovation’S Hidden Externalities, Stephanie Plamondon Bair

BYU Law Review

When commentators discuss innovation’s externalities, they often classify them into one of two categories. On the positive externalities, or “spillovers” side, legal and economics scholars often speak of the benefits innovation confers on other innovators. Future innovators profit from past innovation as they “stand on the shoulders of giants” to develop progressively new and better innovation. Discussion of innovation’s negative externalities, on the other hand, has mainly focused on social harms not directly related to future innovation that particular advances impose on third parties—the classic example being pollution. Thus, the common understanding is that innovation’s spillovers positively impact innovation (among …

The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal

BYU Law Review

There has been an explosion in new types of startup finance instruments. Whereas twenty years ago preferred stock dominated the field, startup companies and investors now use at least eight different instruments—six of which have only become widely used in the last decade. Legal scholars have yet to reflect upon the proliferation of instrument types in the aggregate. Notably missing is a way to organize instruments into a common framework that highlights their similarities and differences. This Article makes four contributions. First, it catalogues the variety of startup investment forms. I describe novel instruments, such as revenue-based financing, which remain …

Minority Entrepreneurs And Fast Failure, Jesse P. Houchens

Brigham Young University Journal of Public Law

Minority businesses now make up more than a quarter of all U.S. businesses; yet, due to discriminatory lending practices, cultural aversions to debt, and limited access to capital, these businesses continue to have higher failure rates. At the same time, m inority entrepreneurs are more likely to rely on informal lending and less likely to turn to bankruptcy for relief of debt. Doing so slows down failure for minority entrepreneurs — contra Silicon Valley’s new mantra, “fail fast” — and diminishes the minority entrepreneur’s ability to efficiently reallocate resources towards more productive ventures. In this essay, I distinguish the minority …

Minority Entrepreneurs And Fast Failure, John Taylor Jensen

Brigham Young University Journal of Public Law

Minority businesses now make up more than a quarter of all U.S. businesses; yet, due to discriminatory lending practices, cultural aversions to debt, and limited access to capital, these businesses continue to have higher failure rates. At the same time, m inority entrepreneurs are more likely to rely on informal lending and less likely to turn to bankruptcy for relief of debt. Doing so slows down failure for minority entrepreneurs — contra Silicon Valley’s new mantra, “fail fast” — and diminishes the minority entrepreneur’s ability to efficiently reallocate resources towards more productive ventures. In this essay, I distinguish the minority …

A Solution To Utah’S Non-Compete Dilemma: Soliciting The Use Of Non-Solicitation Agreements, Jerrick Robbins

BYU Law Review

Utah has become a hub for company growth and innovation, especially in an area known as the “Silicon Slopes.” Well-known companies, like Qualtrics, Adobe, and eBay, have offices along the Wasatch Front. With such newfound relevance in the business community, it may seem odd that Utah’s legislature recently passed the Post-Employment Restrictions Act, which some say threatens Utah’s position as a state where businesses thrive. The Act restricts non-compete agreements to periods not greater than one year and automatically penalizes, through attorney’s fees and costs, any employer who tries to enforce a non-compete agreement that a court later finds unenforceable …

To Solve It Aright: Rerum Novarum And New Jersey's Answer To Catholic Bishop Of Chicago, Daniel T. Paxton

Brigham Young University Education and Law Journal

No abstract provided.

The Principle Of Subsidiarity And The Law Of The Family Business, Scott Fitzgibbon

Brigham Young University Journal of Public Law

No abstract provided.

Family Law And Entrepreneurial Action, D. Gordon Smith

Faculty Scholarship

In "The Contractual Foundation of Family-Business Law," Benjamin Means aspires to lay the groundwork for a law of family businesses. In this brief response essay, I suggest that a workable family-business law along the lines suggested by Means is consistent with an overarching policy in the United States of promoting entrepreneurial action, and I evaluate the proposal against this policy goal, with particular attention to Means’s arguments in favor of “family-business defaults” and his concern over the potentially disruptive role of fiduciary law.

Pricing Disintermediation: Crowdfunding And Online Auction Ipos, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Institutional Control And Corporate Governance, Geoffrey Christopher Rapp

BYU Law Review

No abstract provided.

The Scope Of Contractor-Subcontractor Liability In The Modern-Era Of Multinational Companies, Niels Bybee

Brigham Young University International Law & Management Review

No abstract provided.

For-Profit Schools: A History Of Abuse And The Need For Reform, Stephanie N. Morse

Brigham Young University Education and Law Journal

No abstract provided.

Private Sector Corruption In International Trade: The Need For Heightened Reporting And A Private Right Of Action In The Foreign Corrupt Practices Act, Nika A. Antonikova

Brigham Young University International Law & Management Review

No abstract provided.

Corporate-School Partnerships And Neoliberal Influences On Students As Future Participants In The Labor Market, Adriane Kayoko Peralta

Brigham Young University Education and Law Journal

No abstract provided.

G8 Principles: Identifying The Anonymous, Max Biedermann

Brigham Young University International Law & Management Review

No abstract provided.

The Duty To Manage Risk, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Shareholder Activism As A Corrective Mechanism In Corporate Governance, Paul Rose, Bernard S. Sharfman

BYU Law Review

Under an Arrowian framework, centralized authority and management provides for optimal decision making in large organizations. However, Kenneth Arrow also recognized that other elements within the organization, beyond the central authority, occasionally may have superior information or decision-making skills. In such cases, such elements may act as a corrective mechanism within the organization. In the context of public companies, this Article finds that such a corrective mechanism comes in the form of hedge fund activism, or, more accurately, offensive shareholder activism.

Offensive shareholder activism operates in the market for corporate influence, not control. Consistent with a theoretical framework that protects …

Fiduciary Discretion, D. Gordon Smith, Jordan C. Lee

Faculty Scholarship

Discretion is an important feature of all contractual relationships. In this Article, we rely on incomplete contract theory to motivate our study of discretion, with particular attention to fiduciary relationships. We make two contributions to the substantial literature on fiduciary law. First, we describe the role of fiduciary law as “boundary enforcement,” and we urge courts to honor the appropriate exercise of discretion by fiduciaries, even when the beneficiary or the judge might perceive a preferable action after the fact. Second, we answer the question, how should a court define the boundaries of fiduciary discretion? We observe that courts often …

Contractually Adopted Fiduciary Duty, D. Gordon Smith

Faculty Scholarship

The Delaware Supreme Court recently referred to “contractually adopted fiduciary duties.” Although some commentators, including Larry Ribstein, view fiduciary duties as a type of contract term, the notion of contractually adopted fiduciary duties is incoherent. The need to opt in to fiduciary duties would arise in only two circumstances: (1) fiduciary relationships that do not invoke fiduciary duties without contractual authorization, and (2) nonfiduciary relationships in which the parties wish to invoke fiduciary duties that would otherwise be absent. The first category of relationships does not exist, as courts impose fiduciary duties when the structure of a relationship indicates that …

Cross-Border Bankruptcy And The Cooperative Solution, Leah Barteld

Brigham Young University International Law & Management Review

No abstract provided.

Foreign Direct Investment In Post-War Iraq: An Investor's Introductory Guide To The Legal Framework, Jordan E. Toone

Brigham Young University International Law & Management Review

No abstract provided.

Corporate Governance In China: How Does The State Influence Its Own Enterprises?, Kan Zhang

Brigham Young University International Law & Management Review

No abstract provided.

From Handbills To Proposed Bills: Suggestions For Regulating The Law Vegas "Strip" Tease, Brian D. Blakley

BYU Law Review

No abstract provided.

Using Second Circuit Precedent To Fundamentally Change Mutlinational Corporations' Global Foreign Corrupt Practices Act Internal Investigations, Travis Robert-Ritter

Brigham Young University International Law & Management Review

No abstract provided.

Sour Chocolate: The U.K. Takeover Panel's Improper Reaction To Kraft's Acquisition Of Cadbury, Michael R. Patrone

Brigham Young University International Law & Management Review

No abstract provided.

Outsourcing, Modularity, And The Theory Of The Firm Margaret M. Blair, Erin O’Hara O’Connor, And Gregg Kirchhoefer, Margaret M. Blair, Erin R O’Hara O’Conno, Gregg Kirchhoefer

BYU Law Review

No abstract provided.

Regulating Compensation, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Brands, Competition, And The Law, Deven R. Desai, Spencer Waller

BYU Law Review

No abstract provided.

Toxic Assets: Untangling The Web, Margarita S. Brose, Bill Niclos

Brigham Young University International Law & Management Review

No abstract provided.

Does Climate Change Justify Compulsory Licensing Of Green Technology?, Robert Fair

Brigham Young University International Law & Management Review

No abstract provided.