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Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati 2017 Duke Law School

Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The academic literature on sovereign debt largely assumes that law has little role to play. Indeed, the primary question addressed by the literature is why sovereigns repay at all given the irrelevance of legal enforcement. But if law, and specifically contract law, does not matter, how to explain the fact that sovereign loans involve detailed contracts, expensive lawyers, and frequent litigation? This Essay makes the case that contract design matters even in a world where sovereign borrowers are hard (but not impossible) to sue. We identify a number of gaps in the research that warrant further investigation.


Section 3: Business, Institute of Bill of Rights Law at The College of William & Mary School of Law 2016 College of William & Mary Law School

Section 3: Business, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


The Trouble With Basic: Price Distortion After Halliburton, Jill E. Fisch 2016 University of Pennsylvania Law School

The Trouble With Basic: Price Distortion After Halliburton, Jill E. Fisch

Jill Fisch

Many commentators credit the Supreme Court’s decision in Basic, Inc. v. Levinson, which allowed courts to presume reliance rather than requiring individualized proof, with spawning a vast industry of private securities fraud litigation. Today, the validity of Basic’s holding has come under attack as scholars have raised questions about the extent to which the capital markets are efficient. In truth, both these views are overstated. Basic’s adoption of the fraud on the market presumption reflected a retreat from prevailing lower court recognition that the application of a reliance requirement was inappropriate in the context of impersonal public ...


Regulation Fd: An Alternative Approach To Addressing Information Asymmetry, Jill E. Fisch 2016 University of Pennsylvania Law School

Regulation Fd: An Alternative Approach To Addressing Information Asymmetry, Jill E. Fisch

Jill Fisch

This chapter traces the development of the SEC’s use of Regulation Fair Disclosure (FD) to address information asymmetry in the securities markets. The chapter describes the SEC’s developing enforcement policy and notes, in particular, the SEC’s efforts, through its selection and settlement of Regulation FD cases, to provide guidance to corporations and corporate officials about areas of key concern. The chapter concludes by highlighting current areas of particular importance, including disclosure of information through private meetings and the implications of technological innovations such as the internet and social media. The chapter is forthcoming in Research Handbook on ...


Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch 2016 University of Pennsylvania Law School

Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch

Jill Fisch

In its most recent Halliburton II decision, the Supreme Court rejected an effort to overrule its prior decision in Basic Inc. v. Levinson. The Court reasoned that adherence to Basic was warranted by principles of stare decisis that operate with “special force” in the context of statutory interpretation. This Article offers an alternative justification for adhering to Basic—the collaboration between the Court and Congress that has led to the development of the private class action for federal securities fraud. The Article characterizes this collaboration as a lawmaking partnership and argues that such a partnership offers distinctive lawmaking advantages. Halliburton ...


After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick 2016 University of Pennsylvania Law School

After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

Jill Fisch

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array ...


Voting Through Agents: How Mutual Funds Vote On Director Elections, Stephen J. Choi, Jill E. Fisch, Marcel Kahan 2016 New York University School of Law

Voting Through Agents: How Mutual Funds Vote On Director Elections, Stephen J. Choi, Jill E. Fisch, Marcel Kahan

Jill Fisch

Shareholder voting has become an increasingly important focus of corporate governance, and mutual funds control a substantial percentage of shareholder voting power. The manner in which mutual funds exercise that power, however, is poorly understood. In particular, because neither mutual funds nor their advisors are beneficial owners of their portfolio holdings, there is concern that mutual fund voting may be uninformed or tainted by conflicts of interest. These concerns, if true, hamper the potential effectiveness of regulatory reforms such as proxy access and say on pay. This article analyzes mutual fund voting decisions in uncontested director elections. We find that ...


The Trouble With Basic: Price Distortion After Halliburton, Jill E. Fisch 2016 University of Pennsylvania Law School

The Trouble With Basic: Price Distortion After Halliburton, Jill E. Fisch

Jill Fisch

Many commentators credit the Supreme Court’s decision in Basic, Inc. v. Levinson, which allowed courts to presume reliance rather than requiring individualized proof, with spawning a vast industry of private securities fraud litigation. Today, the validity of Basic’s holding has come under attack as scholars have raised questions about the extent to which the capital markets are efficient. In truth, both these views are overstated. Basic’s adoption of the fraud on the market presumption reflected a retreat from prevailing lower court recognition that the application of a reliance requirement was inappropriate in the context of impersonal public ...


Top Cop Or Regulatory Flop? The Sec At 75, Jill E. Fisch 2016 University of Pennsylvania Law School

Top Cop Or Regulatory Flop? The Sec At 75, Jill E. Fisch

Jill Fisch

In their forthcoming article, Redesigning the SEC: Does the Treasury Have a Better Idea?, Professors John C. Coffee, Jr., and Hillary Sale offer compelling reasons to rethink the SEC’s role. This article extends that analysis, evaluating the SEC’s responsibility for the current financial crisis and its potential future role in regulation of the capital markets. In particular, the article identifies critical failures in the SEC’s performance in its core competencies of enforcement, financial transparency, and investor protection. The article argues that these failures are not the result, as suggested by the Treasury Department Blueprint, of a balkanized ...


The Long Road Back: Business Roundtable And The Future Of Sec Rulemaking, Jill E. Fisch 2016 Selected Works

The Long Road Back: Business Roundtable And The Future Of Sec Rulemaking, Jill E. Fisch

Jill Fisch

The Securities and Exchange Commission (SEC or Commission) has faced a number of challenges in the last few years. Judge Rakoff’s decision in Citigroup, the Madoff scandal, and the Business Roundtable decision are just a few of the developments that have dealt lasting damage to the SEC’s reputation. Critics have scrutinized the agency’s decisionmaking on multiple fronts—from its enforcement policy to the quality of its rulemaking—and the SEC has largely come up short in the analysis. The once-revered top cop of the securities markets has taken a hit, and it is unclear whether it can ...


The New Federal Regulation Of Corporate Governance, Jill E. Fisch 2016 University of Pennsylvania Law School

The New Federal Regulation Of Corporate Governance, Jill E. Fisch

Jill Fisch

No abstract provided.


The Mess At Morgan: Risk, Incentives And Shareholder Empowerment, Jill E. Fisch 2016 University of Pennsylvania Law School

The Mess At Morgan: Risk, Incentives And Shareholder Empowerment, Jill E. Fisch

Jill Fisch

The financial crisis of 2008 focused increasing attention on corporate America and, in particular, the risk-taking behavior of large financial institutions. A growing appreciation of the “public” nature of the corporation resulted in a substantial number of high profile enforcement actions. In addition, demands for greater accountability led policymakers to attempt to harness the corporation’s internal decision-making structure, in the name of improved corporate governance, to further the interest of non-shareholder stakeholders. Dodd-Frank’s advisory vote on executive compensation is an example.

This essay argues that the effort to employ shareholders as agents of public values and, thereby, to ...


The Power Of Proxy Advisors: Myth Or Reality?, Stephen Choi, Jill E. Fisch, Marcel Kahan 2016 NYU Law School

The Power Of Proxy Advisors: Myth Or Reality?, Stephen Choi, Jill E. Fisch, Marcel Kahan

Jill Fisch

Recent regulatory changes increasing shareholder voting authority have focused attention on the role of proxy advisors. In particular, greater shareholder empowerment raises the question of how much proxy advisors influence voting outcomes. This Article analyzes the significance of voting recommendations issued by four proxy advisory firms in connection with uncontested director elections. We find, consistent with press reports, that Institutional Shareholder Services (ISS) is the most powerful proxy advisor and that, of the others, only Glass, Lewis & Co. seems to have a meaningful impact on shareholder voting. This Article also attempts to measure the impact of voting recommendations on voting ...


The Scope Of Private Securities Litigation: In Search Of Liability Standards For Secondary Defendants, Jill E. Fisch 2016 University of Pennsylvania Law School

The Scope Of Private Securities Litigation: In Search Of Liability Standards For Secondary Defendants, Jill E. Fisch

Jill Fisch

Recent federal court decisions have struggled to apply the Supreme Court's decision in Central Bank v. First Interstate to determine when outside professionals should be held liable as primary violators under section IO(b) of the Securities Exchange Act. In keeping with the Court's current interpretive methodology, Central Bank and its progeny employ a textualist approach. In this Article, Professor Fisch argues that literal textualism is an inappropriate approach for interpreting the federal securities laws generally and misguided in light of legislative developments post-dating the Central Bank decision. Instead, Professor Fisch advocates an approach that weighs Congress 's ...


The Securities Analyst As Agent: Rethinking The Regulation Of Analysts, Jill E. Fisch, Hillary A. Sale 2016 University of Pennsylvania Law School

The Securities Analyst As Agent: Rethinking The Regulation Of Analysts, Jill E. Fisch, Hillary A. Sale

Jill Fisch

No abstract provided.


Start Making Sense: An Analysis And Proposal For Insider Trading Regulation, Jill E. Fisch 2016 University of Pennsylvania Law School

Start Making Sense: An Analysis And Proposal For Insider Trading Regulation, Jill E. Fisch

Jill Fisch

No abstract provided.


Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch 2016 University of Pennsylvania Law School

Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch

Jill Fisch

No abstract provided.


The Destructive Ambiguity Of Federal Proxy Access, Jill E. Fisch 2016 University of Pennsylvania Law School

The Destructive Ambiguity Of Federal Proxy Access, Jill E. Fisch

Jill Fisch

After almost seventy years of debate, on August 25, 2010, the SEC adopted a federal proxy access rule. This Article examines the new rule and concludes that, despite the prolonged rule-making effort, the new rule is ambiguous in its application and unlikely to increase shareholder input into the composition of corporate boards. More troubling is the SEC’s ambiguous justification for its rule which is neither grounded in state law nor premised on a normative vision of the appropriate role of shareholder nominations in corporate governance. Although the federal proxy access rule drew an unprecedented number of comment letters and ...


Regulatory Responses To Investor Irrationality: The Case Of The Research Analyst, Jill E. Fisch 2016 University of Pennsylvania Law School

Regulatory Responses To Investor Irrationality: The Case Of The Research Analyst, Jill E. Fisch

Jill Fisch

An extensive body of behavioral economics literature suggests that investors do not behave with perfect rationality. Instead, investors are subject to a variety of biases that may cause them to react inappropriately to information. The policy challenge posed by this observation is to identify the appropriate response to investor irrationality. In particular, should regulators attempt to protect investors from bad investment decisions that may be the result of irrational behavior?

This Article considers the appropriate regulatory response to investor irrationality within the concrete context of the research analyst. Many commentators have argued that analyst conflicts of interest led to biased ...


Relationship Investing: Will It Happen And Will It Work?, Jill E. Fisch 2016 University of Pennsylvania Law School

Relationship Investing: Will It Happen And Will It Work?, Jill E. Fisch

Jill Fisch

No abstract provided.


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