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The Wolf At The Door: The Impact Of Hedge Fund Activism On Corporate Governance, John C. Coffee Jr., Darius Palia Jan 2015

The Wolf At The Door: The Impact Of Hedge Fund Activism On Corporate Governance, John C. Coffee Jr., Darius Palia

Faculty Scholarship

Hedge fund activism has increased almost hyperbolically. Although some view this trend optimistically as a means for bridging the separation of ownership and control, we review the evidence and find it far more mixed. In particular, engagements by activist hedge funds appear to be producing a significant externality: severe cut-backs in long-term investment (and particularly a reduction in investment in research and development) by both the targeted firms and other firms not targeted but still deterred from making such investments.

We begin by surveying the regulatory and institutional developments that have reduced the costs and increased the expected payoff from ...


Of Constituents And Contributors, Richard Briffault Jan 2015

Of Constituents And Contributors, Richard Briffault

Faculty Scholarship

In the stirring conclusion to his opinion in McCutcheon v. FEC, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the “political responsiveness at the heart of the democratic process.” Invoking Edmund Burke, the Chief Justice eloquently declaimed that “[c]onstituents have the right to support candidates who share their views and concerns. Representatives ... can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the concept of self-governance.”

The Chief Justice’s emphasis on the representative-constituent relationship jarring, however, as McCutcheon addressed the effort of an individual ...


Article Ix: The Promise And Limits Of Home Rule, Richard Briffault Jan 2015

Article Ix: The Promise And Limits Of Home Rule, Richard Briffault

Faculty Scholarship

Article IX of New York State’s constitution establishes the basic constitutional framework for addressing questions of local power, local government organization, and state-local and interlocal relations in the Empire State. Premised on a commitment to “[e]ffective local self-government,” the “home rule amendment” added to the state constitution in 1963 and unamended since then, has bolstered local control over local government organization and personnel and has provided a firmer foundation for local law-making in New York. But it has not succeeded in enabling New York’s local units – its counties, cities, towns and villages – to function as efficient, effective ...


When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss Jan 2015

When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss

Faculty Scholarship

In numerous contexts today, ranging from no-fly lists, to the designation of foreign terrorist organizations, to controls over foreign investments in the United States, federal authorities reach decisions having dramatic consequences for individuals’ liberty and property on the basis of information that those individuals cannot obtain, even in summary form. Recent and pending litigation has challenged these deprivations on due process grounds, with only moderate success. Perhaps unclassified information on which the government has acted must be revealed, with an opportunity given to challenge it and to submit contrary evidence; but in the words of the DC Circuit writing last ...


The Constitutional Duty To Supervise, Gillian E. Metzger Jan 2015

The Constitutional Duty To Supervise, Gillian E. Metzger

Faculty Scholarship

The IRS targets Tea Party organizations’ applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader ...


Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg Jan 2015

Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg

Faculty Scholarship

Copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses ...


Reinterpreting The Status-Contract Divide: The Case Of Fiduciaries, Hanoch Dagan, Elizabeth S. Scott Jan 2015

Reinterpreting The Status-Contract Divide: The Case Of Fiduciaries, Hanoch Dagan, Elizabeth S. Scott

Faculty Scholarship

The distinction between status and contract permeates legal analyses of categories of cooperative interpersonal interactions in which one party has particular obligations to the other. But the current binary understanding of the distinction has facilitated its use as a foil and thus undermined its conceptual and normative significance. This predicament is understandable given that the innate, comprehensive and inalienable status as well as the wholly open-ended contract anticipated by commentators are corner – rather than core – alternatives in a liberal polity. Hence, to clarify these normative debates we introduce two further, intermediate conceptions: office and contract type. Like the innate status ...


Contract Design And The Shading Problem, Robert E. Scott Jan 2015

Contract Design And The Shading Problem, Robert E. Scott

Faculty Scholarship

Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to ...


Is Music The Next Ebooks? An Antitrust Analysis Of Apple's Conduct In The Music Industry, Alexa Klebanow, Tim Wu Jan 2015

Is Music The Next Ebooks? An Antitrust Analysis Of Apple's Conduct In The Music Industry, Alexa Klebanow, Tim Wu

Faculty Scholarship

Over the last twenty years, two waves of technological change have transformed the way people purchase and listen to music. First, digital downloads displaced physical sales of albums. More recently, digital downloads, once the primary way to gain access to digital music, have come to be challenged by streaming services. Apple, a leader in the digital download market with iTunes, has engaged in various strategies to meet the challenge. This paper specifically focuses on two types of conduct – Apple’s pressure on labels to enter into exclusive license agreements, also known as windowing, and Apple’s pressure on the market ...


The First Year: The Role Of A Modern Lender Of Last Resort, Kathryn Judge Jan 2015

The First Year: The Role Of A Modern Lender Of Last Resort, Kathryn Judge

Faculty Scholarship

Insufficient liquidity can trigger fire sales and wreak havoc on a financial system. To address these challenges, the Federal Reserve (the Fed) and other central banks have long had the authority to provide financial institutions liquidity when market-based sources run dry. Yet, liquidity injections sometimes fail to quell market dysfunction. When liquidity shortages persist, they are often symptoms of deeper problems plaguing the financial system. This Essay shows that continually pumping new liquidity into a financial system in the midst of a persistent liquidity shortage may increase the fragility of the system and, on its own, is unlikely to resolve ...


Robert Katzmann's "Judging Statutes", Peter L. Strauss Jan 2015

Robert Katzmann's "Judging Statutes", Peter L. Strauss

Faculty Scholarship

Chief Judge Robert Katzmann has written a compelling short book about statutory interpretation, stressing the importance to sensible interpretation of knowing Congress as an institution (as few judges do). Both as a resource for teaching, and as a useful compendium of the current literature, it is a very welcome addition to the genre. Though he is careful and fair to both, readers will not be surprised to find his views on the purposive rather than the textualist side of the current disputes. The book could set the framework for a two or three hour legislation class supplemented by cases and ...


The Future Of Direct Finance: The Diverging Paths Of Peer-To-Peer Lending And Kickstarter, Kathryn Judge Jan 2015

The Future Of Direct Finance: The Diverging Paths Of Peer-To-Peer Lending And Kickstarter, Kathryn Judge

Faculty Scholarship

This Article explores why the technologies that have transformed a range of industries by facilitating a dramatic rise in direct transactions – as reflected in the rapid growth of eBay, Etsy, and Airbnb, among others – have yet to similarly transform banking and other modes of financial intermediation. Its primary focus is the evolution of peer-to-peer (“P2P”) lending from a sector that promised to bring similarly radical changes to financial intermediation to one in which the relationship between the supplier and recipient of the capital is increasingly attenuated. The analysis reveals a number of market and regulatory forces that tend to favor ...


Three Essays In Criminal Justice, Bernard E. Harcourt Jan 2015

Three Essays In Criminal Justice, Bernard E. Harcourt

Faculty Scholarship

How could the New York Times call the grand jury’s decision to no bill the indictment against officer Darren Wilson in Ferguson, Missouri, a “verdict”? How could federal appellate judges call it a “procedural shortcut” when a state judge, in a death penalty case, signs the state attorney general’s proposed judicial opinion without even striking the word “proposed” or reviewing the full opinion? What do these incidents tell us about contemporary criminal justice? These essays explore these puzzles. The first, “Verdict and Illusion,” begins to sketch the role of illusions in justice. The second, “A Singe Voice of ...


The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen Jan 2015

The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.


Intention And Value, Joseph Raz Jan 2015

Intention And Value, Joseph Raz

Faculty Scholarship

The paper sketches the role of reasons and intentions in leading to action with an intention, explaining the way possession of rational powers transforms the formation of intentions. Part One explains how when humans act with an intention they act in the belief that there is value in the action. Part Two explains the relative role of value and intention in “producing” the action, and relates their role to that of motivation.


Putting Stored-Value Cards In Their Place, Liran Haim, Ronald J. Mann Jan 2015

Putting Stored-Value Cards In Their Place, Liran Haim, Ronald J. Mann

Faculty Scholarship

This Essay explores the effects of stored-value cards on social welfare. We argue that stored-value cards, in general, are socially beneficial payment devices. Their burgeoning use benefits society in three main plains. First, by replacing paper-based instruments in market segments previously inaccessible to card-based payments, stored-value cards lower the private and public costs of payment transactions. Second, by extending the use of card-based payment systems towards lower- and middle-income households, stored-value cards foster inclusion of those households in the financial mainstream of our society. Third, by operating without an extension of credit, stored-value cards help to limit the uniquely American ...


Executive Federalism Comes To America, Jessica Bulman-Pozen Jan 2015

Executive Federalism Comes To America, Jessica Bulman-Pozen

Faculty Scholarship

From healthcare to marijuana to climate change, negotiations among federal and state executive branch actors increasingly set national policy in the United States. This executive federalism fits uneasily into existing understandings: it departs from expectations that Congress formulates national policy and mediates state-federal relationships; it poses a challenge to popular suggestions that the president is engaged in unilateral action; and it comes as a surprise to those who have studied executive federalism but insist it is the peculiar province of parliamentary federations. In an age of partisan polarization, congressional gridlock, and state initiative, executive federalism has come to America. After ...


The Rites Of Dissent: Notes On Nationalist Federalism, Jessica Bulman-Pozen Jan 2015

The Rites Of Dissent: Notes On Nationalist Federalism, Jessica Bulman-Pozen

Faculty Scholarship

This essay responds to Heather Gerken’s Childress Lecture, Federalism and Nationalism: Time for a Détente? It first outlines two possible understandings of Gerken’s claim that federalism can be good for nationalism, taking the national to refer either to the federal government or to a cohesive American community. The first understanding would suggest that federalism enhances the power of the federal government, that devolution ultimately yields centralization. The second understanding would suggest that federalism domesticates conflict so as to unify a national polity. This essay rejects both of these accounts and instead sketches a view of the national as ...


Supreme Court Amicus Brief Of 19 Corporate Law Professors, Friedrichs V. California Teachers Association, No. 14-915, John C. Coates, Iv, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee Jr., James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence A. Hamermesh, Henry Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier Kraakman, Donald C. Langevoort, Edward B. Rock, Mark J. Roe, Helen S. Scott Jan 2015

Supreme Court Amicus Brief Of 19 Corporate Law Professors, Friedrichs V. California Teachers Association, No. 14-915, John C. Coates, Iv, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee Jr., James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence A. Hamermesh, Henry Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier Kraakman, Donald C. Langevoort, Edward B. Rock, Mark J. Roe, Helen S. Scott

Faculty Scholarship

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt ...


Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg Jan 2015

Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg

Faculty Scholarship

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances. This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts ...


Judicial Priorities, Bert I. Huang, Tejas N. Narechania Jan 2015

Judicial Priorities, Bert I. Huang, Tejas N. Narechania

Faculty Scholarship

In an unprecedented move, the Illinois Supreme Court in the mid-1990s imposed hard caps on the state's appeals courts, drastically reducing the number of opinions they could publish, while also narrowing the formal criteria for opinions to qualify for publication. The high court explained that the amendment's purpose was to reduce the "avalanche of opinions emanating from [the] Appellate Court," which was causing legal research to become "unnecessarily burdensome, difficult and costly." This unusual and sudden policy shift offers the chance to observe the priorities of a common law court in its production of published opinions. The method ...


Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli Jan 2015

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the ...


Admin, Elizabeth F. Emens Jan 2015

Admin, Elizabeth F. Emens

Faculty Scholarship

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work — both managerial and secretarial — that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people — often women — who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home aspire to equal distribution ...


Extraterritorial Avoidance Actions: Lessons From Madoff, Edward R. Morrison Jan 2015

Extraterritorial Avoidance Actions: Lessons From Madoff, Edward R. Morrison

Faculty Scholarship

The Madoff case provided fertile ground for testing boundaries of the U.S. Bankruptcy Code. This paper looks at one boundary-testing dispute that forced the SDNY District Court to assess the extraterritorial reach of rules governing recovery of fraudulent transfers. The trustee for the Madoff estate sought to recover property that had been transferred from Madoff’s Ponzi scheme to offshore feeder funds, which in turn transferred the property to customers located abroad. The SDNY court stopped the trustee. In its view, the trustee was seeking extraterritorial application of Section 550, that the text of this section does not overcome ...


Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan Jan 2015

Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan

Faculty Scholarship

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as ...


A Technical Barriers To Trade Agreement For Services?, Bernard Hoekman, Petros C. Mavroidis Jan 2015

A Technical Barriers To Trade Agreement For Services?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Services are regulated for a variety of reasons. Regulation is typically influenced by political economy forces and may thus at times reflect protectionist motivations. Similar considerations arise for goods, but the potential for protectionist capture may be greater in services as many sectors are self-regulated by domestic industry. There are specific disciplines on regulation of goods (product standards) in the WTO Agreement on Technical Barriers to Trade (TBT). This encourages the use of international standards and requires that norms restrict trade only to the extent necessary to achieve the regulatory objective. WTO disciplines on domestic regulation of services are weaker ...


Black Cat, White Cat: The Identity Of The Wto Judges, Louise Johannesson, Petros C. Mavroidis Jan 2015

Black Cat, White Cat: The Identity Of The Wto Judges, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

WTO judges are proposed by the WTO Secretariat and elected to act as ‘judges’ if either approved by the parties to a dispute, or by the WTO Director-General in case no agreement between the parties has been possible. They are typically ‘Geneva crowd’, that is, they are either current or former delegates representing their country before the WTO. This observation holds for both first- as well as second-instance WTO judges (e.g. Panelists and members of the Appellate Body). In that, the WTO evidences an attitude strikingly similar to the GATT. Whereas the legal regime has been heavily ‘legalized’, the ...


Commentaire De L'Article 19 De La Convention De Vienne De 1978 Sur La Succession D'État En Matière De Traités: Participation À Des Traités Signés Par L’État Prédécesseur Sous Réserve De Ratification, D’Acceptation Ou D’Approbation, Petros C. Mavroidis, Dr. Vassilis P. Tzevelekos Jan 2015

Commentaire De L'Article 19 De La Convention De Vienne De 1978 Sur La Succession D'État En Matière De Traités: Participation À Des Traités Signés Par L’État Prédécesseur Sous Réserve De Ratification, D’Acceptation Ou D’Approbation, Petros C. Mavroidis, Dr. Vassilis P. Tzevelekos

Faculty Scholarship

Commentary on Article 19 of the Vienna Convention on Succession of States in Respect of Treaties: Participation in Treaties Signed by the Predecessor State Subject to Ratification, Acceptance or Approval

French Abstract: Commentaide de l'article 19 de la Convention de Vienne sur la succession d'État en matière de traités. I. CARACTÉRISTIQUES GÉNÉRALES: 1. Les points épineux: à la recherche de fondements a) L’intention du prédécesseur et l’absence de liens suffisants entre le traité multilatéral signé sous réserve de ratification, d’acceptation ou d’approbation et le territoire b) L’absence d’une pratique étoffée II. LA ...


Legal Institutionalism: Capitalism And The Constitutive Role Of Law, Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang, Katharina Pistor Jan 2015

Legal Institutionalism: Capitalism And The Constitutive Role Of Law, Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang, Katharina Pistor

Faculty Scholarship

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part ...


Competition Policy And Free Trade: Antitrust Provisions In Ptas, Anu Bradford, Tim Buthe Jan 2015

Competition Policy And Free Trade: Antitrust Provisions In Ptas, Anu Bradford, Tim Buthe

Faculty Scholarship

Trade agreements increasingly contain provisions concerning ‘behind-the-border’ barriers to trade, often beyond current World Trade Organization (WTO) commitments (Dur, Baccini and Elsig 2014). Today’s preferential trade agreements (PTAs) may include, for instance, rules regarding ‘technical’ barriers to trade that go beyond the WTO’s Agreement on Technical Barriers to Trade (TBT Agreement), accelerating the replacement of differing national product safety standards with common international standards and thus reducing the trade-inhibiting effect of regulatory measures (Buthe and Mattli 2011; World Trade Organization 2012). Today’s PTAs may also go beyond WTO rules in prohibiting preferences for domestic producers in government ...