failure family

definitional ambiguity

44 claims across 21 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
• Language Cannot Describe Reality: The first irreducible failure of human governance is the inability of language to describe reality: however precisely a specification is drafted, ther