Wednesday, May 6, 2015
Shu-Yi Oei (Tulane) & Diane M. Ring (Boston College), Human Equity? Regulating the New Income Share Agreements, 68 Vand. L. Rev. 681 (2015):
A controversial new financing phenomenon has recently emerged. New “income share agreements” (“ISAs”) enable an individual to raise funds by pledging a percentage of her future earnings to investors for a certain number of years. These contracts, which are offered by entities such as Fantex, Upstart, Pave, and Lumni, raise important questions for the legal system: Are they a form of modern-day indentured servitude or an innovative breakthrough in human financing? How should they be treated under the law?
This Article constitutes the first real attempt in the legal literature to comprehensively address the public policy and legal issues raised by ISAs and to articulate an analytical approach to evaluating and regulating them. While there has been a nascent movement in favor of enacting overarching regulatory schemes to govern these new arrangements, this Article suggests we should resist that trend because a unified approach is likely to create more problems than it solves. Instead, we suggest adoption of a case-by-case approach that examines each ISA’s distinctive economics and draws analogies to more familiar financial arrangements in designing its legal treatment. Such case-by-case regulation by analogy is likely to generate rules that are more equitable and efficient. We offer a multifactor framework for implementing this “regulation by analogy.”