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Full-Text Articles in Business Organizations Law
In Defense Of Breakups: Administering A “Radical” Remedy, Rory Van Loo
In Defense Of Breakups: Administering A “Radical” Remedy, Rory Van Loo
Faculty Scholarship
Calls for breaking up monopolies—especially Amazon, Facebook, and Google—have largely focused on proving that past acquisitions of companies like Whole Foods, Instagram, and YouTube were anticompetitive. But scholars have paid insufficient attention to another major obstacle that also explains why the government in recent decades has not broken up a single large company. After establishing that an anticompetitive merger or other act has occurred, there is great skepticism of breakups as a remedy. Judges, scholars, and regulators see a breakup as extreme, frequently comparing the remedy to trying to “unscramble eggs.” They doubt the government’s competence in executing such a …
Appraising Merger Efficiencies, Herbert J. Hovenkamp
Appraising Merger Efficiencies, Herbert J. Hovenkamp
All Faculty Scholarship
Mergers of business firms violate the antitrust laws when they threaten to lessen competition, which generally refers to a price increase resulting from a reduction in output. However, a merger that threatens competition may also enable the post-merger firm to reduce its costs or improve its product. Attitudes toward mergers are heavily driven by assumptions about efficiency gains. If mergers of competitors never produced efficiency gains but simply reduced the number of competitors, a strong presumption against them would be warranted. We tolerate most mergers because of a background, highly generalized belief that most or at least many produce cost …
Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page
Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page
UF Law Faculty Publications
The Supreme Court’s 1911 decision in Standard Oil gave us embryonic versions of two foundational standards of liability under the Sherman Act: the rule of reason under Section 1 and the monopoly power/exclusionary conduct test under Section 2. But a case filed later in 1911, United States v. United States Steel Corporation, shaped the understanding of Standard Oil’s standards of liability for decades. U.S. Steel, eventually decided by the Supreme Court in 1920, upheld the 1901 merger that created "the Corporation," as U.S. Steel was known. The majority found that the efforts of the Corporation and its …
A Preface To Neoclassical Legal Thought, Herbert J. Hovenkamp
A Preface To Neoclassical Legal Thought, Herbert J. Hovenkamp
All Faculty Scholarship
Most legal historians speak of the period following classical legal thought as “progressive legal thought.” That term creates an unwarranted bias in characterization, however, creating the impression that conservatives clung to an obsolete “classical” ideology, when in fact they were in many ways just as revisionist as the progressives legal thinkers whom they critiqued. The Progressives and New Deal thinkers whom we identify with progressive legal thought were nearly all neoclassical, or marginalist, in their economics, but it is hardly true that all marginalists were progressives. For example, the lawyers and policy makers in the corporate finance battles of the …
Predation Analysis And The Ftc’S Case Against Intel, Daniel A. Crane
Predation Analysis And The Ftc’S Case Against Intel, Daniel A. Crane
Law & Economics Working Papers
The Federal Trade Commission's pending antitrust case against Intel challenges a number of Intel's discounting and rebating practices. The Commission appears poised to apply a cost-price test to the challenged practices, but proposes to include "fixed sunk costs" in the appropriate measure of cost. This paper explains the importance of using cost-price screens to assess unilaterally imposed prices and analyzes the futility of including sunk costs in the relevant cost measure.
The Law Of Vertical Integration And The Business Firm: 1880-1960, Herbert J. Hovenkamp
The Law Of Vertical Integration And The Business Firm: 1880-1960, Herbert J. Hovenkamp
All Faculty Scholarship
Vertical integration occurs when a firm does something for itself that it could otherwise procure on the market. For example, a manufacturer that opens its own stores is said to be vertically integrated into distribution. One irony of history is that both classical political economy and neoclassicism saw vertical integration and vertical contractual arrangements as much less threatening to competition than cartels or other horizontal arrangements. Nevertheless, vertical integration has produced by far the greater amount of legislation at both federal and state levels and has motivated many more political action groups. Two things explain this phenomenon. First, while economists …
National Security Review Of Foreign Mergers And Acquisitions Of Domestic Companies In China And The United States, Kenneth Y. Hui
National Security Review Of Foreign Mergers And Acquisitions Of Domestic Companies In China And The United States, Kenneth Y. Hui
Cornell Law School Inter-University Graduate Student Conference Papers
China’s recently enacted Anti-Monopoly Law has received much academic attention. In particular, many articles and comments have been written about Article 31 of the Anti-Monopoly Law, a provision on national security review of foreign mergers and acquisitions of domestic companies. The provision has often been labelled as draconian and protectionist. This paper argues that Article 31 is not necessarily so. Article 31 is actually, to a large extent, in line with the national security provisions found in liberal economies. By taking a comparative approach, this paper will demonstrate the similarities between the national security laws in China and the United …
Fiduciary Duties And The Analyst Scandals, Jill E. Fisch
Fiduciary Duties And The Analyst Scandals, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, Jill E. Fisch
Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Does Analyst Independence Sell Investors Short?, Jill E. Fisch
Does Analyst Independence Sell Investors Short?, Jill E. Fisch
All Faculty Scholarship
Regulators responded to the analyst scandals of the late 1990s by imposing extensive new rules on the research industry. These rules include a requirement forcing financial firms to separate investment banking operations from research. Regulators argued, with questionable empirical support, that the reforms were necessary to eliminate analyst conflicts of interest and ensure the integrity of sell-side research.
By eliminating investment banking revenues as a source for funding research, the reforms have had substantial effects. Research coverage of small issuers has been dramatically reduced—the vast majority of small capitalization firms now have no coverage at all. The market for research …
Institutional Competition To Regulate Corporations: A Comment On Macey, Jill E. Fisch
Institutional Competition To Regulate Corporations: A Comment On Macey, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
The Role Of Government In Corporate Governance, Cary Coglianese, Elizabeth K. Keating, Michael L. Michael, Thomas J. Healey
The Role Of Government In Corporate Governance, Cary Coglianese, Elizabeth K. Keating, Michael L. Michael, Thomas J. Healey
All Faculty Scholarship
Numerous corporate scandals in the past several years have fueled widespread debate over proposals for government action. The central challenge for government is how to restore corporate integrity and market confidence without overreacting and stifling the dynamism that underlies a strong economy. To examine this challenge, the Center for Business and Government's Regulatory Policy Program organized a conference in May 2004 on The Role of Government in Corporate Governance. The conference brought together government officials, business leaders, and academic researchers to discuss three fundamental public policy issues raised by recent corporate abuses. First, who should regulate corporate management - government …
The New Federal Regulation Of Corporate Governance, Jill E. Fisch
The New Federal Regulation Of Corporate Governance, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Is There A Role For Lawyers In Preventing Future Enrons?, Jill E. Fisch, Kenneth M. Rosen
Is There A Role For Lawyers In Preventing Future Enrons?, Jill E. Fisch, Kenneth M. Rosen
All Faculty Scholarship
Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer’s role by requiring covered attorneys to “report up” evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to “report up” subjects a lawyer to liability under federal law.
This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …
Aggregation, Auctions, And Other Developments In The Selection Of Lead Counsel Under The Pslra, Jill E. Fisch
Aggregation, Auctions, And Other Developments In The Selection Of Lead Counsel Under The Pslra, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
Mergers And Acquisitions In The European Community And The United States: A Movement Toward A Uniform Enforcement Body, David Snyder
Mergers And Acquisitions In The European Community And The United States: A Movement Toward A Uniform Enforcement Body, David Snyder
Articles in Law Reviews & Other Academic Journals
No abstract provided.
From Legitimacy To Logic: Reconstructing Proxy Regulation, Jill E. Fisch
From Legitimacy To Logic: Reconstructing Proxy Regulation, Jill E. Fisch
All Faculty Scholarship
On October 16, 1992, after a comprehensive review of its system of proxy regulation and after two separate amendment proposals that drew more than 1700 letters of comment from the public, the Securities and Exchange Commission (the "Commission" or the "SEC") voted to reform the federal proxy rules. The reforms were "intended to facilitate shareholder communications and to enhance informed proxy voting, and to reduce the cost of compliance with the proxy rules for all persons engaged in a proxy solicitation.' The SEC explained the amendments by stating that the rules were "impeding shareholder communication and participation in the corporate …
Corporate Law Through An Antitrust Lens, Edward B. Rock
Corporate Law Through An Antitrust Lens, Edward B. Rock
All Faculty Scholarship
No abstract provided.
Frankenstein's Monster Hits The Campaign Trail: An Approach To Regulation Of Corporate Political Expenditures, Jill E. Fisch
Frankenstein's Monster Hits The Campaign Trail: An Approach To Regulation Of Corporate Political Expenditures, Jill E. Fisch
All Faculty Scholarship
No abstract provided.
The Northern Securities Decision, Horace Lafayette Wilgus
The Northern Securities Decision, Horace Lafayette Wilgus
Articles
March 14 the Supreme Court of the United States decided one of the most important cases that has been before it for a number of years. The litigation referred to is the Northern Securities case. The question involved was whether the control of the Great Northern and Northern Pacific railway companies through the ownership of the majority of the stock of each of those companies by the Securities company violated the national anti-trust act. The majority of the Supreme Court held it did, but four of the judges dissented.