Law Commons^™

The Legal Regulation Of U.S. Crowdfunding: An Organically Evolving Patchwork, Joan Macleod Heminway

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The legal regulation of crowdfunding in the United States is neither well calibrated nor holistic. With the exception of specific securities regulation legislation, the regulation of crowdfunding under U.S. law exists as an extension of principles of pre-existing regulation to a specific new and continually changing Internet-based financing space. As a result, while some common consumer protection objectives can be identified, the legal regulatory approach to crowdfunding did not develop through deliberate, rational choice based on coherent public policy objectives. Instead, it arose and evolved by necessity in response to the spontaneous and natural origination and development of crowdfunding as …

Tennessee's For Profit Benefit Corporation Act: Will More Regulation Achieve The Desired Results, Brian Krumm

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No abstract provided.

Selling Crowdfunded Equity: A New Frontier, Joan Macleod Heminway

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This article briefly offers information and observations about federal securities law transfer restrictions imposed on holders of equity securities purchased in offerings that are exempt from federal registration under the CROWDFUND Act, Title III of the JOBS Act. The article first generally describes crowdfunding and the federal securities regulation regime governing offerings conducted through equity crowdfunding — most typically, the offer and sale of shares of common or preferred stock in a corporation over the Internet — in a transaction exempt from federal registration under the CROWDFUND Act and the related rules adopted by the U.S. Securities and Exchange Commission. …

Incorporating Race Into Your Legal Research Class, Shamika Dalton

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No abstract provided.

Professional Responsibility In An Age Of Alternative Entities, Alternative Finance, And Alternative Facts, Joan Macleod Heminway

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Business lawyers in the United States find little in the way of robust, tailored guidance in most applicable bodies of rules governing their professional conduct. The relative lack of professional responsibility and ethics guidance for these lawyers is particularly troubling in light of two formidable challenges in business law: legal change and complexity. Change and complexity arise from exciting developments in the industry that invite — even entice — the participation of business lawyers.

This essay offers current examples from three different areas of business law practice that involve change and complexity. They are labeled: “Alternative Entities,” “Alternative Finance,” and …

Polygamous Marriage, Monogamous Divorce, Michael J. Higdon

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Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more than …

To Avoid The Ieds, Mind The Ethical Touchstones, George Kuney

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No abstract provided.

Financing Social Enterprise: Is The Crowd The Answer?, Joan Macleod Heminway

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How does a business that wants “do good” while doing well finance its operations? In particular, how does a business of that kind find investors who understand and are committed to both its nonfinancial and financial objectives? This chapter addresses issues at the intersection of corporate governance and corporate finance with those questions in mind. Specifically, the pages that follow assess common foundational elements of social enterprise and crowdfunding and whether crowdfunding may be a promising (or even suitable) source of funding for social enterprise businesses.

As young popular and populist corporate governance and corporate finance adventures, social enterprise and …

We, The People - Whoever That Is [Reviews], Glenn Harlan Reynolds

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No abstract provided.

Safe Haven Conundrum: The Use Of Special Bailments To Keep Pets Out Of Violent Households, Joan Macleod Heminway

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Family violence is a continuing social problem that breeds new complexity at every turn. Just as we seem to get a modicum of control over the sheltering of at-risk mothers and children (among other human victims), we find that family pets—dependent creatures endangered by the same violent behavior that threatens their human caretakers—often are left unprotected or under-protected by both law and society. In most cases, pets are unable to be sheltered with human victims of domestic violence due to shelter restrictions. Restrictions on the sheltering of abuse victims with their pets result in difficult choices for human victims who …

Equality And Nondiscrimination Through The Eyes Of An International Religious Organization: The Organization Of Islamic Cooperation's (Oic) Response To Women's Rights, Robert C. Blitt

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This article is the first of a two part series that draws on women’s rights and sexual orientation and gender identity (SOGI) to explore how the Organization of Islamic Cooperation (OIC) represents, interprets and seeks to impact the right to equality and protection against discrimination as enshrined under international human rights law. The study is a novel one in as much as the OIC is neither a state nor a religious group per se. Rather, the OIC stands out as the only contemporary intergovernmental organization unifying its member states around the commonality of a single religion. In this capacity, the …

2017 Transactional Clinic Conference -- June 1-2, 2017 Philadelphia. Results Of A Survey Of Conference Participants On Skills, Competencies, Learning Outcomes And Assessments (And Other Transactional Clinic Demographics), Brian Krumm

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The authors were presenters at the 2017 Transactional Clinic Conference: Built for Impact, held at University of Pennsylvania Law School in Philadelphia on June 1-2. Their topic was Learning Outcomes, Competencies, Skills and Assessments in Transactional Clinics. As part of their presentation, they prepared a survey of conference participants to gather information about how they define learning outcomes, and define and assess competencies and skills in their transactional clinics. The survey also asked numerous demographic questions about the transactional clinics which were represented, including types of clients represented and matters addressed, number of students supervised, prerequisites, grading, use of technology, …

Why Can't We Be Friends? A Business Finance Lawyer's Plaintive Plea To Entrepreneurs, Joan Macleod Heminway

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Entrepreneurs have the capacity to add value to the economy and the community. Business lawyers — including business finance lawyers — want to help entrepreneurs achieve their objectives. Despite incentives to a symbiotic relationship, however, entrepreneurs and business finance lawyers are not always the best of friends. This symposium piece offers several approaches to bridging this gap between entrepreneurs and business finance lawyers.

Tacit Collusion On Steriods - The Tale On Online Price Transparency, Advanced Monitoring And Collusion, Maurice Stucke

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No abstract provided.

A Taxonomy And Evaluation Of Successor Liability (Revisited), George Kuney

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Successor liability does not consist of just one doctrine or exception to the general corporate rule of non-liability for asset purchasers, but of many. There are two broad groups of successor liability doctrines, those that are judge-made (the “common law” exceptions) and those that are creatures of statute. Both represent a distinct public policy that in certain instances and for certain liabilities, the general rule of non-liability of a successor for a predecessor’s debts following an asset sale should not apply. With regard to the judge-made doctrines, some commentators have asserted that they are basically a species of liability based …

Shareholder Wealth Maximization As A Function Of Statutes, Decisional Law, And Organic Documents, Joan Macleod Heminway

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In context, corporate law is often credited with creating, hewing to, or reinforcing a shareholder wealth maximization norm. The now infamous opinion in Dodge v. Ford Motor Co. describes the norm in a relatively bald and narrow way: "A business corporation is organized and carried on primarily for the profit of the stockholders." As a matter of theory and policy, commentators from the academy (law and business) and practice (lawyers and judges) have taken various views on this asserted norm — ranging from characterizing the norm as nonexistent or oversimplified to maintaining it as simple fact.

In an effort to …

Memorial: William J. (Bill) Beintema (1944-2015), Sibyl D. Marshall, Scott Childs

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No abstract provided.

Old-School Rhetoric And New-School Cognitive Science: The Enduring Power Of Logocentric Categories, Lucille Jewel

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For thousands of years, the contours of Western legal argument have remained unchanged. Since the time of the ancient Greeks, lawyers have been presenting arguments in the same basic format, with a heavy reliance on the concept of logos, the idea that arguments are most persuasive when presented in a clear deductive logical structure using clean-cut categories. Forming the basis for the terms that appear in logocentric legal arguments, categories allow humans to group facts and information together into classes. For instance, chairs, tables, and beds occupy the category of furniture and cars; trucks, and motorcycles occupy the category of …

Permissible Negligence And Campaigns To Suppress Rights, Glenn Harlan Reynolds

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In his The Second Amendment Right To Be Negligent, 68 Fla. L. Rev. 1 (2016), Andrew McClurg looks at statutory protections shielding gun owners and sellers from liability in cases of theft, etc. in terms of what he calls a constitutional “right to be negligent” under the First and Second Amendments. In this brief response, I look at that question, and also touch, briefly, on the to-me interesting aspect that the protection enjoyed by publishers under the First Amendment was created by judicial action, while that enjoyed under the Second Amendment was instead the product of legislation. But, in short, …

Poor Support/Rich Support: (Re)Viewing The American Social Welfare State, Wendy A. Bach

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Since at least the 1970s a variety of scholars have redefined the U.S. social welfare state to include not only traditional benefit programs (for example Food Stamps and social security) but also a variety of tax benefits that are “hidden” or “submerged” forms of “welfare for the wealthy.” Including these benefits in the overall picture of U.S. social welfare provision reveals a system that is both larger in size than popularly believed and that, in addition to providing some support for the poor, distributes significant benefits regressively, to households with substantial wealth. Although a variety of scholars and policy analysts …

The Cost Of High Prices: Embedding An Ethic Of Expense Into The Standard Of Care, Isaac ("Zack") D. Buck

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It is not profound to say that the American health care enterprise is in a state of flux. Since the passage of the Patient Protection and Affordable Care Act (ACA), the administration and delivery of health care in the country has undergone fundamental change. And this change continues unabated, as the Obama administration looks for ways to improve health care access and quality while limiting cost. It is a riddle that America has sought to solve for decades.

In the midst of this rapid and radical change, America’s crown jewel public health insurance program of Medicare faces an intensifying cost …

2016-2017 Oxford Business Law Blog Round-Up: Most Read Opinion Pieces, Maurice Stucke

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On 14 March 2017, the Oxford Business Law Blog (OBLB) marked its first anniversary. One year ago, we set out to create a leading and truly international forum for the exchange of ideas and reporting of new developments in business law. Since then, we have published over 530 posts from academics and practitioners from across the world and have reached readers from over 150 countries.

The OBLB is now a firmly entrenched part of the Oxford Law Faculty’s Business Law Hub. The purpose of this collection is to celebrate submissions created especially for publication on the OBLB. As such, this …

Tracing The Roots Of The Criminalization Of Poverty [Reviews], Wendy A. Bach

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No abstract provided.

Marriage On Our Own Terms, Teri Dobbins Baxter

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No abstract provided.

Attorney Negligence And Negligent Spoliation: The Need For New Tools To Prompt Attorney Competence In Preservation, Paula Schaefer

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Though case law typically suggests otherwise, attorney negligence is the primary cause of negligent spoliation of evidence. With the advent of ediscovery, it became markedly more difficult for attorneys to competently guide their clients through the steps necessary to preserve evidence – particularly the categories of evidence most likely to help an opponent in a case. Unlike intentional spoliation instigated by an attorney, negligent spoliation is not the product of calculation. If an attorney were to undertake a cost-benefit analysis, negligent spoliation would not be a rational choice. The field of behavioral legal ethics provides insight into other reasons attorneys …

Timekeeping And Wage Theft In The 21st Century, Alex B. Long

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No abstract provided.

Title Ix’S Field Of (Unrealistic?) Dreams: If You Build It, Will They Come?, Becky Jacobs

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In the wonderful, magical realism of the iconic baseball movie, Field of Dreams, Kevin Costner’s character, Ray Kinsella, hears the phrase, “If you build it, he will come,” as he walks in his Iowa fields. The voice’s pronouncement was prophetic, and, when Ray builds a baseball diamond, Shoeless Joe Jackson and other long-dead baseball legends do come – they come to play baseball on his field. Authors R. Vivian Acosta and Linda Jean Carpenter also make use of this movie quote in one of their biennial reports on women in intercollegiate sport. Regrettably, however, while Title IX has made strides …

Corporate Purpose And Litigation Risk In Publicly Held U.S. Benefit Corporations, Joan Macleod Heminway

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Benefit corporations have enjoyed legislative and, to a lesser extent, popular success over the past few years. This article anticipates what recently (at the eve of its publication) became a reality: the advent of a publicly held U.S. benefit corporation — a corporation with public equity holders that is organized under a specialized U.S. state statute requiring corporations to serve both shareholder wealth aims and social or environmental objectives. Specifically, the article undertakes to identify and comment on the structure and function of U.S. benefit corporations and the unique litigation risks to which a publicly held U.S. benefit corporation may …

Pleading Actual Malice In Defamation Actions After Twiqbal: A Circuit Survey, Judy Cornett

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What does it take to satisfy the Twombly/Iqbal pleading standard when alleging actual malice in an action for defamation? The answer to this question, which has so far attracted little scholarly attention, not only has significant implications for public-figure defamation actions, but it also illustrates a larger problem with the Twiqbal pleading standard. The Twiqbal pleading standard requires a court to evaluate a motion to dismiss for failure to state a claim by, first, discarding conclusory allegations, and second, determining whether the remaining factual allegations state a claim that is “plausible on its face.” While Federal Rule of Civil Procedure …

The Rule Of Law In The Technological Age Challenges And Opportunities For The Eu Collected Papers, Maurice Stucke

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No abstract provided.