Law Commons^™

It Shouldn’T Be This Hard: The Law And Economics Of Business In Indian Country, Adam Crepelle

Utah Law Review

Indian reservation economies have been in shambles for generations. Although some tribes operate successful gaming enterprises, no tribe has a vibrant private sector economy. Law and economics help explain why. Economics is the study of choices, and Indian country’s complex legal rules deter businesses from investing on tribal land. After all, no business wants to spend a year waiting for the federal government to approve a land lease on reservation when land is easily accessible off reservation. Likewise, jurisdictional rules are clear off reservation, but within Indian country, simply determining whether to file a breach of contract suit in tribal, …

When Cannabis Businesses Fail: Assignment For The Benefit Of Creditors As An Alternative To Bankruptcy, Edward S. Adams

Utah Law Review

Cannabis businesses should keep the ABC in mind if they begin to struggle. As the cannabis industry becomes a greater part of our economy, more practitioners need to be aware of the solutions to risks that come with running a business associated with cannabis. While the federal government appears to have taken a mostly hands-off approach with states with their own regulatory schemes, that does not address the concerns of a failing cannabis business. The ABC addresses those concerns and can serve as a valid substitute for filing for bankruptcy.

Market Myopia’S Climate Bubble, Madison Condon

Utah Law Review

A growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing occurs, drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: (1) Lack the fine-grained asset-level data they need in order to assess risk exposure; (2) Continue to rely on outdated means of assessing risk; (3) Have misaligned incentives resulting in climate-specific agency costs; (4) Have myopic biases exacerbated by climate change misinformation; and (5) Are impeded by captured …

Corporations Without Representation: The Constitutionality Of Gender Diversity Mandates, Talley Ransil

Utah Law Review

Biases and structural barriers contribute to the glacial pace at which women are represented on corporate boards. Even though companies with at least one female board of director outperform companies with no female directors, women only held 20% of board of director positions in 2019. Companies nationwide would not reach gender equality in the boardroom for decades without legally enforceable gender diversity requirements. In response, California Senator Jackson proposed SB 826—requiring California-based publicly held corporations to include at least one woman on their board of directors. However, conservative legal organizations filed lawsuits claiming California’s gender diversity mandate violates the California …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

Utah Law Review

There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Cryptocorporations: A Proposal For Legitimizing Decentralized Autonomous Organizations, Timothy Nielsen

Utah Law Review

A DAO does not fit well within the current landscape of recognized organizational structures and, rather than shoehorning it into one, states should recognize a new hybrid entity. This Note’s proposed Cryptocorporation form, with rules and protections better suited to the unique qualities of a DAO, could allow for the most appropriate tax treatment of shared profits, limit personal liability, and allow for an appropriate voting structure as articulated in the White Paper. The proposed Cryptocorporation would also protect investors and give the SEC more presumptive jurisdiction over the token-based-stock that is issued and represented exclusively through blockchain tokens. Cryptocorporations …

The Interconnections Between Entrepreneurship, Science, And The Patent System, Amy Landers

Utah Law Review

This Article considers several related points about the recent changes to the patent system and the opportunities for entrepreneurship. The concern about the adverse effect of the recent changes to patent law on innovation may be overstated. As a practicalmatter, the concept that patents are a necessary input to innovation is built on a model that does not account for the complex relationship between this legal system, science, and innovation. Although it can be expected that there may be some adverse impacts from these decisions, this trend opens up the opportunity for entrepreneurship. By releasing more foundational information into the …

Alice Was No Rabbit Hole: Why Software Inventors Should Be Neither Surprised, Nor Alarmed, Sherman Helenese

Utah Law Review

Trade secrets offer an alternative to patent - ineligible innovations and to the problems and perils of protecting, defending and enforcing patents. Although there is currently limited trade secret legislation on the national level, nearly all states have adopted, with little substantive variation, the Uniform Trade Secrets Act. Unlike patent - eligibility requirements that precluded software in Gottschalk, Diehr, Alice, and Tenon from patent protection, no trade secret is automatically deemed out of scope. Trade secrets encompass anything of value, so long as it is not generally known and reasonable steps are taken, such as the use …

Altering Rules, Cumulative Voting, And Venture Capital, John F. Coyle

Utah Law Review

Legal scholars have long debated the proper balance betweenmandatory and default rules in corporate law. One group — the contractarians — maintain that corporatelaw should function as an off-the-rack set of default rules that approximate, as much as possible,the rules that the transacting parties would have agreed to if bargaining were costless. The contractarians are generally skeptical of mandatory rules because they interfere with the ability of the parties to decide for themselves how to organize their economic relationships. Another group of scholars—the anti - contractarians — have argued that corporate law should seek to achieve certain regulatory objectives separate …

Startups And Unmet Legal Needs, Alice Armitage, Evan Frondorf, Christopher Williams, Robin Feldman

Utah Law Review

Our survey results demonstrate that startup companies are exposed to a wide variety of legal needs from an early stage: when attorneys associated with the Startup Legal Garage were asked to handle a company’s most pressing legal needs, the average startup received assistance with over three distinct legal matters over the course of a thirteen-week academic semester. These issues often spanned multiple categories. Although matters frequently touched on a variety of topics within companies, strong similarities emerged in the types of issues faced by all startups in our sample. Almost 90% of the legal matters addressed by Startup Legal Garage …

Enduring Design For Business Entities, William E. Foster

Utah Law Review

The success or failure of an institution may hinge on some of the earliest decisions of its founders. In constitutional design literature, endurance is a widely accepted drafting objective. Indeed, constitutional endurance is positively associated with prosperous and stable societies. Like drafters of constitutions, business organizers have almost innumerable objectives for their enterprises, and attorneys drafting organizational documents must take into account these myriad goals. Oftentimes the drafting process fails to fully address some of the most important of these aims and results in suboptimal structures that lack predictability and reliability.

This article looks specifically at small business organizations and …

The Real World Of Interdependence Of Governments And Corporations: What We Know Vs. What We Teach, David Menefee-Libey, Charles Herman, Chad Powell, Jeffrey Zalesin

Utah Law Review

Once we better understand this interdependence, we can more carefully ask how the public and private sectors can and should collaborate, for what purposes, and to whose benefit. The real world political questions are not whether it will be done or how such things could happen. A more constructive real world politics will focus on how we will manage the interdependence of governments and corporations, and whose interests and values will be served by policy choices about the patterns and practices of collaboration. If we organize our public life around these questions in 2020, American politics will be much more …

The Materiality Of Morality: Conflict Minerals, Alexandrea L. Nelson

Utah Law Review

Shareholder activism is not a privilege—it is a right and a responsibility. When we invest in a company, we own part of that company and we are partly responsible for how that company progresses. If we believe there is something going wrong with the company, then we, as shareholders, must become active and vocal.