failure family

definitional ambiguity

43 claims across 20 works.

undefinable risk standard: Law generally declines to adopt a general principle barring managers from incurring risk above a defined standard because such a standard is hard to d
prepack-vote-invalidation: Because the Bankruptcy Code does not define adequate information, prepackaged plans risk inadequate disclosure, creditor challenge, and unusable prepe
Indeterminate statutory cross reference in Article 51: The authors identify a drafting defect in the proposed CRD IV Regulation: the distinction drawn by financial institution in Article 51(a) is ambiguous
Unmeasurable market confidence standard: Because German law fixes no threshold conditions or determining factors for market reception or market confidence, the systemic relevance and contagio
guidance-by-no-action-letter: Before Dodd-Frank the perimeter of hedge fund regulation was set by SEC no-action letters on client counting and by courts that gave very limited and
residual uncertainty after rule revision: Revised Rule 2019 clarifies some of the ambiguities of the old rule, but uncertainty and confusion about its application remain inevitable.
ambiguous definition of represents: The definition of representation in Revised Rule 2019 leaves it unclear whether attorneys who merely monitor a bankruptcy case for a client, without s
amorphous fiduciary duty doctrine: The traditional fiduciary duty doctrine is one of the most amorphous concepts in the law, and its indeterminacy produces confusion, inconsistency, and
federal statutes fail to clarify fiduciary duties: Sarbanes-Oxley and the Dodd-Frank Act have influenced and shaped fiduciary duties, but they have not necessarily improved or clarified them.
overbroad-leverage-definition: Form PF's definition of leverage is overinclusive: respondents reported that it is inappropriately constructed and sweeps in funds that use neither le
raum-interpretive-instability: Regulatory assets under management is an unstable reporting concept: commenters split evenly on whether Form PF's RAUM questions required them to inte
flexibility-breeds-confusion: Regulatory flexibility can backfire: a category of respondents reported that the flexibility the SEC provides is not useful precisely because it is un
Ambiguous questions and definitions: Even though the private fund industry broadly accepted Form PF, the form's core problems for the SEC are the ambiguity of several questions, advisers'
Ambiguity, bad definitions, aggregation difficulty: The substantive defects in Form PF data are the ambiguity of several key questions, inaccurate definitions paired with insufficient SEC guidance, and
Widespread filer disagreement with definitions: More than forty percent of respondents in a prior study disagreed with the definitions or instructions in Form PF.
RAUM definition requires filer interpretation: The Form PF definition of Regulatory Assets under Management is the leading example of a definition that forced filers to interpret what they were req
Counterparty definitions unclear to filers: The interpretation Form PF demands generated particular concern among filers about the definition of counterparties and about counterparty performance
Interpretation dependent RAUM drives thresholds: Because the FSOC uses RAUM related valuations directly and indirectly to set stage one thresholds, and because RAUM requires substantial filer interpr
term ambiguity limits keyword measurement: The Form ADV analysis is limited because the term due diligence carries multiple possible meanings, so counts of the term cannot by themselves disting
inconsistent legal standards: The legal standards applicable to private fund investor due diligence are somewhat inconsistent and suboptimal and merit clarification.
Undefined statutory term defeats agency rulemaking: The SEC's 2004 hedge fund adviser registration rule failed in court because the agency lacked authority to define the term client, which the Investmen
Ambiguous reporting requirements: The most pressing problem with Form PF identified by the majority of SEC registered hedge fund advisers is not the volume of data but the ambiguity of
Absence of bright line verification standard: New Rule 506(c) creates uncertainty for hedge fund advisers considering general solicitation and general advertising, because the SEC required reasona
Indeterminate reasonable steps standard: Until the SEC finalizes verification rules and gives a clear, comprehensive definition of the reasonable steps an issuer must take, issuers cannot det
Undefined statutory term defeats agency rulemaking: The 2004 registration rule failed in court because the term client was not defined in the Investment Advisers Act, leaving the SEC without authority t
Form PF design defects: Form PF data suffer from core shortcomings: ambiguity in several key questions, inaccurate definitions with correspondingly insufficient SEC guidance,
Interpretive slack in RAUM propagates into designation thresholds: Several core Form PF questions that feed the FSOC's stage one threshold assessment are defective, most importantly because the definition of RAUM requ
uncertainty from permanent transition: Because technological transition is becoming a permanent state rather than an episode, rulemakers' inability to address the regulatory issues created
principles that change after the fact: The principle based approach has a shortcoming the authors concede: it is usually impossible to comply with principles that could change after the fac
undefined long-term value: Code guidance assigning the board responsibility for long-term value creation, as in the 2016 Dutch Corporate Governance Code, is difficult to impleme
unresolved-security-classification: The utility token model dominates the top 100 tokens, but the utility category as coded includes tokens that behave like a security, and no Howey test
unclassifiable-token-model: Seven of the top 100 tokens could not be classified into any token model, with NEM, VeChain, ICON, and Lisk qualifying as outliers with no justificati
centralized-framing-of-decentralization: Defining decentralization through historically formed centralized perspectives is a contradiction in terms that undermines its true potential and limi
distributed-decentralized-conflation: The widely reproduced diagram contrasting centralized, decentralized, and distributed networks is a shallow and wrong answer to what decentralization
brittle formal boundary: Drawing a clear formal line between where individual rights stop and social responsibilities start makes the system brittle and unstable by turning th
false equivalence with equities: Stocks and cryptocurrencies look similar enough, both traded on markets at fluctuating prices, to invite similar regulation, but they diverge in their
definitional-contagion: The absence of clearly defined technology features for blockchain, distributed ledger, and associated terms propagates outward, producing knock-on def
generic-features-no-specific-definition: The core distinguishing features of blockchain technology are only generically definitional: they characterize the technology as a class but supply no
undefined-securities-token-nomenclature: The lack of a clearly delineated nomenclature for the term securities token has produced divergent uses and interpretations of that term, especially i
blurred-token-category-lines: The boundaries between the different types of tokens are regularly blurred, so the securities token versus utility token distinction functions as a ty
utility-label-does-not-defeat-security-status: Merely calling a token a utility token, or structuring it so that it provides some utility, does not prevent the token from being characterized as a s
uncompensated creator supply failure: The current data production market cannot scale or sustain a high-quality text supply because content creators face limited incentives and no direct c
BaFin substance over form reclassification: BaFin applies substance over form, so transferable, tradable, or profit-oriented reward units risk classification as crypto-assets or financial instru