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Codetermination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie 2021 Southern Methodist University - Dedman School of Law

Codetermination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie

All Faculty Scholarship

A system of shared corporate governance between shareholders and workers, codetermination has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and an example of corporate deviance. However, over the last twenty years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders. This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather ...


Antitrust And Platform Monopoly, Herbert J. Hovenkamp 2020 University of Pennsylvania Carey Law School

Antitrust And Platform Monopoly, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This article first considers an often-discussed question about large internet platforms that deal directly with consumers: Are they “winner take all,” or natural monopoly, firms? That question is complex and does not produce the same answer for every platform. The closer one looks at digital platforms they less they seem to be winner-take-all. As a result, we can assume that competition can be made to work in most of them.

Second, assuming that an antitrust violation is found, what should be the appropriate remedy? Breaking up large firms subject to extensive scale economies or positive network effects is generally thought ...


Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp 2020 University of Pennsylvania Carey Law School

Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The antitrust enforcement Agencies' 2020 Vertical Merger Guidelines introduce a nontechnical application of bargaining theory into the assessment of competitive effects from vertical acquisitions. The economics of such bargaining is complex and can produce skepticism among judges, who might regard its mathematics as overly technical, its game theory as excessively theoretical or speculative, or its assumptions as unrealistic.

However, we have been there before. The introduction of concentration indexes, particularly the HHI, in the Merger Guidelines was initially met with skepticism but gradually they were accepted as judges became more comfortable with them. The same thing very largely happened again ...


Modernizing The Fair And Equitable Treatment Standards In The Energy Charter Treaty, Sydney Thurman-Baldwin 2020 University of Miami Law School

Modernizing The Fair And Equitable Treatment Standards In The Energy Charter Treaty, Sydney Thurman-Baldwin

University of Miami Business Law Review

As oil and gas continue to be hot commodities for national economies, the number of international arbitrations in the energy sector has continued to rise in recent years. As the utilization of International Arbitration continues to rise in Energy disputes, so does the invocation of The Energy Charter Treaty (“ECT”). The ECT promotes inter-governmental cooperation with contracting parties in the energy sector through its provisions on investment protection, provisions on trade, transit of energy, energy efficiency, environmental protection and dispute resolution. These provisions are considered to be the cornerstone of the treaty, fostering a ‘level playing field’ for foreign investments ...


Smart Contracts: Implications On Liability And Competence, Ryan Hasting 2020 University of Miami Law School

Smart Contracts: Implications On Liability And Competence, Ryan Hasting

University of Miami Business Law Review

Smart contracts are increasingly popular in business and law. Smart contracts are also becoming increasingly complex. Advances in technology allow smart contracts to handle far more intricate transactions than the traditional—and simple— vending machine example. With increased complexity comes increased responsibility. When parties rely on an attorney to review or draft a smart contract, that attorney must understand what he or she is reading or writing. Smart contracts, however, are not written in a language most attorneys can understand, let alone write. While a general description of the contract may be translated into plain English, the contract itself is ...


The Bleeding Edge: Theranos And The Growing Risk Of An Unregulated Private Securities Market, Theodore O'Brien 2020 University of Miami Law School

The Bleeding Edge: Theranos And The Growing Risk Of An Unregulated Private Securities Market, Theodore O'Brien

University of Miami Business Law Review

America’s securities laws and regulations, most of which were created in the early twentieth century, are increasingly irrelevant to the most dynamic emerging companies. Today, companies with sufficient investor interest can raise ample capital through private and exempt offerings, all while eschewing the public exchanges and the associated burdens of the initial public offering, public disclosures, and regulatory scrutiny. Airbnb, Inc., for example, quickly tapped private investors for $1 billion in April of 2020, adding to the estimated $4.4 billion the company had previouslyraised.2 The fundamental shift from public to private companies is evidenced by the so-called ...


The United States: Big Data, Little Regulation, Megan Valent 2020 University of Miami Law School

The United States: Big Data, Little Regulation, Megan Valent

University of Miami Business Law Review

In the United States today, there is no single law to address the privacy concerns associated with the collection of consumer data. Lawmakers have introduced policies that seek to address data privacy at the federal level, but Congress has not yet acted to create a comprehensive law to protect consumers. On the contrary, in 2016, the European Union passed its General Data Protection Regulation to address the dangers associated with “Big Data” and to give consumers control over their data.

Unfortunately, in the United States consumers are often unaware of how their data is being handled and what is done ...


Bank Resolution And Creditor Distribution: The Tension Shaping Global Banking –Part Ii: The Cross-Border Dimension, David Ramos, Javier Solana 2020 Carlos III University, Madrid

Bank Resolution And Creditor Distribution: The Tension Shaping Global Banking –Part Ii: The Cross-Border Dimension, David Ramos, Javier Solana

University of Miami Business Law Review

New bank resolution frameworks that aim to address the complex task of managing the collapse of a large financial institution stand in considerable tension with basic principles and policy objectives of insolvency law. In this two-part study, we present an analytical framework that aims at helping us understand how this tension can undermine the effectiveness of the new bank resolution frameworks. In the first part of this article, we introduced our three-layered framework and explored its first two layers: the group dimension, and the duality of crisis-prevention and crisis-management tools. In this Part II, we explore the last layer: the ...


Airdrops: “Free” Tokens Are Not Free From Regulatory Compliance, Bridgett S. Bauer Esq. 2020 University of Miami Law School

Airdrops: “Free” Tokens Are Not Free From Regulatory Compliance, Bridgett S. Bauer Esq.

University of Miami Business Law Review

No abstract provided.


Uber And The Need For Particularized Regulation, Kayla Marie Heckman 2020 University of Miami Law School

Uber And The Need For Particularized Regulation, Kayla Marie Heckman

University of Miami Business Law Review

With technology constantly evolving, the law must evolve with it. Uber Technologies, Inc. (“Uber”) has transformed the transportation industry by making transportation readily available with the touch of a button on one’s mobile phone. Uber is now one of the leading companies in transportation and operates worldwide. While this expansion has been great for consumers, it has come with significant drawbacks and challenges. Uber threatens the taxi industry, the cities in which it operates, and even its own drivers. This Note will discuss how Uber’s rapid growth is disrupting transportation in major cities quicker than its impact can ...


Table Of Contents, Seattle University Law Review 2020 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents


Visions Of The Republic Symposium: Facts And Fictions Of Corporate Executive Accountability, Masaki Iwasaki 2020 Harvard Law School

Visions Of The Republic Symposium: Facts And Fictions Of Corporate Executive Accountability, Masaki Iwasaki

Fordham Law Review Online

U.S. Senator and former Democratic presidential contender Elizabeth Warren recently proposed the Corporate Executive Accountability Act, a bill that lowers the level of mental state required to prosecute executives for any corporate crime. A nationwide debate has been raging over this Act, but most arguments have focused on the appropriateness of the relaxed requirement, and the whole picture of executive accountability is vague. This Essay reveals what the facts and fictions of corporate executive accountability are, focusing on the degree of punishment of criminal executives. The author presents the estimates of expected direct and indirect punishments of executives and ...


Behavioral Lessons For Antitrust Enforcement, Avishalom Tor 2020 Notre Dame Law School

Behavioral Lessons For Antitrust Enforcement, Avishalom Tor

Faculty Lectures and Presentations

These are lecture slides to accompany a virtual lecture.

Avishalom Tor, professor and director of the Research Program on Law and Market Behavior at Notre Dame Law School, delivered this lecture to lawyers and economists of the Department of Justice’s antitrust division in Washington D.C. and throughout the country in the summer of 2020.

The lecture provides a systematic review of the lessons empirical behavioral findings offer to antitrust law, enforcement, and policy. Professor Tor introduces key findings of behavioral antitrust and explores their implications for doctrine and enforcement across the field, in areas ranging from horizontal restraints ...


Compliance Management Systems: Do They Make A Difference?, Cary Coglianese, Jennifer Nash 2020 University of Pennsylvania Carey Law School

Compliance Management Systems: Do They Make A Difference?, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

Regulatory compliance is vital for promoting the public values served by regulation. Yet many businesses remain out of compliance with some of the regulations that apply to them—presenting not only possible dangers to the public but also exposing themselves to potentially significant liability risk. Compliance management systems (CMSs) may help reduce the likelihood of noncompliance. In recent years, managers have begun using CMSs in an effort to address compliance issues in a variety of domains: environment, workplace health and safety, finance, health care, and aviation, among others. CMSs establish systematic, checklist-like processes by which managers seek to improve their ...


Should Corporations Have A Purpose?, Jill E. Fisch, Steven Davidoff Solomon 2020 University of Pennsylvania Carey Law School

Should Corporations Have A Purpose?, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

The hot topic in corporate governance is the debate over corporate purpose and, in particular, whether corporations should shift their purpose from the pursuit of shareholder wealth to pursuing a broader conception of stakeholder or societal value. We argue that this debate has overlooked the critical predicate questions of whether a corporation should have a purpose at all and, if so, why,

We address these questions by examining the historical, legal and theoretical justifications for corporate purpose. We find that none of the three provides a basis for requiring a corporation to articulate a particular purpose or for a given ...


Appraisal Waivers, Jill E. Fisch 2020 University of Pennsylvania Carey Law School

Appraisal Waivers, Jill E. Fisch

Faculty Scholarship at Penn Law

A judicial determination of fair value in a private company can be a difficult and imprecise process. This difficulty coupled with variations in way mergers are negotiated and structured and the potential for conflicts of interest lend uncertainty to appraisal proceedings. As a result, corporate participants have powerful reasons to seek to limit the uncertainty associated with an appraisal proceeding ex ante. The response has been the growing use of shareholder agreements that limit appraisal rights.

Appraisal waivers also offer a potentially attractive solution to a somewhat different concern, the growth of appraisal litigation in publicly traded companies. As with ...


Private Ordering And The Role Of Shareholder Agreements, Jill E. Fisch 2020 University of Pennsylvania Carey Law School

Private Ordering And The Role Of Shareholder Agreements, Jill E. Fisch

Faculty Scholarship at Penn Law

Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms, particularly venture-capital backed start-ups, are increasingly adopting firm-specific governance provisions such as dual-class voting structures, arrangements to create stable shared control rights among a coalition of minority shareholders, and provisions that limit the permissible fora for shareholder litigation. Courts have broadly upheld these provisions as consistent with the contractual theory of the firm. Commentators too, while finding some governance provisions objectionable, nonetheless support a private ordering approach as facilitating innovation and enhancing efficiency.

Although most analyses of private ordering focus on provisions ...


Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg 2020 University of Maine School of Law

Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg

Loyola of Los Angeles Law Review

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo— cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption.

Building upon that body of scholarship, this Article begins with a ...


The Foreign Investment Risk Review Modernization Act: The Double-Edged Sword Of U.S. Foreign Investment Regulations, J. Russell Blakey 2020 Loyola Marymount University and Loyola Law School

The Foreign Investment Risk Review Modernization Act: The Double-Edged Sword Of U.S. Foreign Investment Regulations, J. Russell Blakey

Loyola of Los Angeles Law Review

No abstract provided.


Shareholder Value(S): Index Fund Esg Activism And The New Millennial Corporate Governance, David Webber, Michal Barzuza, Quinn Curtis 2020 Boston Univeristy School of Law

Shareholder Value(S): Index Fund Esg Activism And The New Millennial Corporate Governance, David Webber, Michal Barzuza, Quinn Curtis

Faculty Scholarship

Major index fund operators have been criticized as ineffective stewards of the firms in which they are now the largest shareholders. While scholars debate whether this passivity is a serious problem, index funds’ generally docile approach to ownership is broadly acknowledged.

However, this Article argues that the notion that index funds are passive owners overlooks an important dimension in which index funds have demonstrated outspoken, confrontational, and effective stewardship. Specifically, we document that index funds have taken a leading role in challenging management and voting
against directors in order to advance board diversity and corporate sustainability. We show that index ...


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