Realizing Diversity, Sustainability, And Stakeholder Capitalism,
2022
University of Colorado Law School
Realizing Diversity, Sustainability, And Stakeholder Capitalism, Peter H. Huang
Publications
Stakeholder capitalism conceives of capitalism with companies maximizing their long-term value, while considering in addition to the interests of their shareholders, also the interests of all their other stakeholders. Examples of such additional stakeholders include customers, employees, communities, creditors, competitors, society at large, and our planet. America today does not have stakeholder capitalism. Instead, America presently has shareholder capitalism, in which publicly held corporations only maximize their stock value to shareholders.
This Essay analyzes proposals for the United States Securities Exchange Commission to require that all reporting companies make periodic mandatory Environmental, Social, and Governance (ESG) disclosures of comparable, standardized, …
Unequal Investment: A Regulatory Case Study,
2022
University of South Carolina School of Law
Unequal Investment: A Regulatory Case Study, Emily R. Winston
Faculty Publications
Growing economic inequality in the United States has reduced social mobility, placing financial security farther out of reach for a growing number of Americans. During the COVID-19 pandemic, U.S. stock prices have grown simultaneously with unemployment and food insecurity, highlighting the fact that prosperity is unequally distributed in the U.S. economy.
Many Americans do not benefit when the stock market soars because they do not have the means to invest. However, even ordinary American families who do have wealth to invest in the capital markets will face enormous obstacles in narrowing the wealth divide through investment. This is because ordinary …
Goodbye Buybacks? Why Recent Stock Buyback Reform Proposals Go Beyond What Is Necessary,
2022
Fordham University School of Law
Goodbye Buybacks? Why Recent Stock Buyback Reform Proposals Go Beyond What Is Necessary, Joshua Zelen
Fordham Journal of Corporate & Financial Law
This note provides an overview of the intensifying debate around the impact that stock buybacks have on economic inequality and the proposals designed to reform the practice. With the advent of the Securities and Exchange Commission’s (SEC) 1982 promulgation of Rule 10b-18, corporations began allocating vast portions of their profits to stock buybacks. In recent years, this practice has become increasingly more common and has surpassed previous historical benchmarks.
Critics of stock buybacks primarily view the practice as a misuse of excess corporate funds that could instead be allocated to improve employee working conditions, benefits, and future outcomes. Opponent’s concerns …
Governing Fintech 4.0: Bigtech, Platform Finance, And Sustainable Development,
2022
Kerry Holdings Professor in Law, RGC Senior Fellow in Digital Finance and Sustainable Development, and Associate Director, HKU-Standard Chartered Foundation FinTech Academy, University of Hong Kong
Governing Fintech 4.0: Bigtech, Platform Finance, And Sustainable Development, Douglas Arner, Ross Buckley, Kuzi Charamba, Artem Sergeev, Dirk Zetzsche
Fordham Journal of Corporate & Financial Law
Over the past 150 years, finance has evolved into one of the world’s most globalized, digitized, and regulated industries. Digitalization has transformed finance, but also enabled new entrants over the past decade in the form of technology companies, especially FinTechs and BigTechs. As a highly digitalized industry, incumbents and new entrants alike are increasingly pursuing similar approaches and models, focusing on the economies of scope and scale typical of finance and the network effects typical of data. Predictably, this has resulted in the emergence of large digital finance platforms. We argue that the combination of digitalization, new entrants (especially BigTechs), …
The Cryptic Nature Of Crypto Digital Assets Regulations: The Ripple Lawsuit And Why The Industry Needs Regulatory Clarity,
2022
Fordham University School of Law
The Cryptic Nature Of Crypto Digital Assets Regulations: The Ripple Lawsuit And Why The Industry Needs Regulatory Clarity, Jacqueline Hennelly
Fordham Journal of Corporate & Financial Law
The tension and associated time lag between technology and regulation has been well documented. Paradigmatic of this phenomenon is the global evolution of blockchain technology and digital assets. Digital assets in the blockchain allow users to transact directly without financial intermediaries. However, the regulatory guidelines for the assets, their issuance, and the subsequent transactions are unclear. The Securities and Exchange Commission (SEC) has filed an action to apply its existing regulations and the judicial interpretations to Ripple’s issuance of XRP, its token, and Ripple’s control over subsequent user transactions of XRP. This Note uses SEC v. Ripple as a case …
Here To Stay: Wrestling With The Future Of The Quickly Maturing Spac Market,
2022
Fordham University School of Law
Here To Stay: Wrestling With The Future Of The Quickly Maturing Spac Market, Matthew Diller, Rick Fleming, Stephen Fraidin, Aj Harris, Gregory F. Laufer, Mark Lebovitch, Gregg A. Noel, Hester M. Peirce, Usha R. Rodrigues, Mike Stegemoller, Verity Winship, Douglas Ellenoff
Fordham Journal of Corporate & Financial Law
No abstract provided.
Temporary Securities Regulation,
2022
Chicago-Kent College of Law
Temporary Securities Regulation, Anita K. Krug
Washington and Lee Law Review
In times of crisis, including during the 2020–2021 global pandemic, the U.S. Securities and Exchange Commission (SEC) has engaged in a type of securities regulation that few scholars have acknowledged, let alone evaluated. Specifically, during recent market crises, the SEC adopted rules that are temporary, designed to help the securities markets and their participants— both public companies and public investment funds, such as mutual funds and ETFs—weather the crisis at hand but go no further. Once that goal has been accomplished, these rules usually expire, replaced by the permanent rules that they temporarily supplanted. Although the temporary-rulemaking endeavor is laudable—and …
Supreme Risk,
2022
University of Nevada, Las Vegas -- William S. Boyd School of Law
Supreme Risk, Benjamin P. Edwards
Scholarly Works
While many have discussed the social issues that might arise because of a majority-conservative Supreme Court, one critical consequence of the current Court has been overlooked: the role of the Court in generating or avoiding systemic risk. For some time, systemic financial risk has been regulated by a mix of self-regulatory organizations (SROs), such as the Depository Trust Corporation, and federal regulators such as the Financial Stability Oversight Council (FSOC). However, the Court's recent jurisprudence now creates real risk that federal courts will declare keystone SROs unconstitutional because they do not fit neatly into an eighteenth-century constitutional framework.
SROs are …
The Long-Term Effects Of Short Selling And Negative Activism,
2022
University of Florida Levin College of Law
The Long-Term Effects Of Short Selling And Negative Activism, Peter Molk, Frank Partnoy
UF Law Faculty Publications
We investigate the long-term effects of short selling and “negative activism,” where activists seek to profit from declines in the share prices of targeted firms. We show that negative activism is associated with significant and declining long-term share returns and operating performance, as well as an increase in securities litigation and regulatory actions against targeted firms. We explore the policy implications of this new evidence, including ways that policy makers and market participants might take advantage of the potential benefits of short selling negative activism. Our message is straightforward: resist impulses to curb short selling, and instead embrace attempts to …
Negligence At The Breach: Information Fiduciaries And The Duty To Care For Data,
2022
University of Connecticut
Negligence At The Breach: Information Fiduciaries And The Duty To Care For Data, Daniel M. Filler, David M. Haendler, Jordan L. Fischer
Connecticut Law Review
Personal data is a cost of admission for much of modern life. Employers, tech companies, advertisers, information brokers, and others collect huge quantities of data about us all. Yet outside of a few highly-regulated industries, American companies face few legal restrictions on how they manage and use that data. Until now, individuals have had very limited remedies when their data is stolen from data collectors. But change is afoot. In a significant recent decision, the Pennsylvania Supreme Court took a consequential step holding that entities collecting personal data owe a duty of reasonable care to protect data subjects against harm. …
How To Sell Nfts Without Really Trying,
2022
University of Kentucky
How To Sell Nfts Without Really Trying, Brian L. Frye
Law Faculty Scholarly Articles
Something is happening and we don’t know what it is. Suddenly last summer, the internet went nuts for “non-fungible tokens” or “NFTs.” In a matter of months, NFT sales swelled from a sleepy slough of the blockchain to a thundering cataract that shows no sign of slaking. Special NFTs sell for millions of dollars, and some are even securitized. It’s a big business that’s only getting bigger.
But no one seems to know why. Objectively, NFTs are useless, meaningless, and worthless. So why are people willing to pay millions of dollars for them, even begging for the opportunity? Maybe it …
Comments On Proposed Rules For Special Purpose Acquisition Companies, Shell Companies, And Projections,
2022
Washington University in St. Louis School of Law
Comments On Proposed Rules For Special Purpose Acquisition Companies, Shell Companies, And Projections, Andrew F. Tuch
Scholarship@WashULaw
In March 2022, the Securities and Exchange Commission released proposed rules for special purpose acquisition companies (SPACs), shell companies, and projections. In this comment letter, filed with the SEC, I provide a critical assessment of this proposal.
The SEC proposed far-reaching changes intended to enhance investor protections and align disclosure and liability rules in de-SPACs more closely with those in traditional IPOs. An under-appreciated feature of the proposed reforms is that they would subject de-SPACs to provisions closely modeled on Rule 13e-3 of the Exchange Act, which applies to going-private transactions, including management buyouts. Intended to tackle potential conflicts of …
I Can Still Hear You Saying You Would Never Break The Chain: How Higher Education Admissions Policies Put Law Firms At Risk Of Losing Corporate Clients,
2022
Emory University School of Law
I Can Still Hear You Saying You Would Never Break The Chain: How Higher Education Admissions Policies Put Law Firms At Risk Of Losing Corporate Clients, Jolie Abrams
Emory Corporate Governance and Accountability Review
No abstract provided.
Circuit Split Analysis: Involuntary Arbitration Agreements,
2022
Emory University School of Law
Circuit Split Analysis: Involuntary Arbitration Agreements, Tyler Blackington
Emory Corporate Governance and Accountability Review
No abstract provided.
Universal Owners, Shareholder Primacy, And Stakeholderism,
2022
Emory University School of Law
Universal Owners, Shareholder Primacy, And Stakeholderism, Daniel Irvin
Emory Corporate Governance and Accountability Review
The rise of massive asset owners like large pension funds and sovereign wealth funds has created interest in the phenomenon of Universal Owners. The climate crisis, environmental degradation, and worsening inequality have also led to challenges to the current models of corporate governance, with a particular interest on the idea of corporate purpose. This paper fills a gap by addressing the intersection of these two trends, proposing a framework by which Universal Owners should view corporate purpose. I argue that from a returns-maximizing perspective, Universal Owners should prefer a flavor of shareholder primacy that believes the corporation’s purpose is to …
Soft Law: The Optimal Legal Framework For Global Financial Regulation,
2022
Emory University School of Law
Soft Law: The Optimal Legal Framework For Global Financial Regulation, Yussuf A. Aleem
Emory Corporate Governance and Accountability Review
The regulation of global finance comprises an unorthodox legal framework. Unlike other areas of economic regulation or international law, more generally, this framework is not directed through intergovernmental organizations with formal legal status. Moreover, commitments (or best practice standards) made by various regulatory officials are non-binding and subject to significant variation. This departure is especially unique when comparing financial regulation to areas such as international trade law or environmental law.[1]
The purpose of this Paper is to provide a positive analysis explaining the prevalence of this form of “soft” law, and normatively suggest why such a framework is the …
Realizing Diversity, Sustainability, And Stakeholder Capitalism,
2022
Emory University School of Law
Realizing Diversity, Sustainability, And Stakeholder Capitalism, Peter H. Huang
Emory Corporate Governance and Accountability Review
Stakeholder capitalism conceives of capitalism with companies maximizing their long-term value, while considering in addition to the interests of their shareholders, also the interests of all their other stakeholders. Examples of such additional stakeholders include customers, employees, communities, creditors, competitors, society at large, and our planet. America today does not have stakeholder capitalism. Instead, America presently has shareholder capitalism, in which publicly held corporations only maximize their stock value to shareholders.
This Essay analyzes proposals for the United States Securities Exchange Commission to require that all reporting companies make periodic mandatory Environmental, Social, and Governance (ESG) disclosures of comparable, standardized, …
An Ocean Apart: The Mandatory Takeover Rule In Brazil And In Europe,
2022
Emory University School of Law
An Ocean Apart: The Mandatory Takeover Rule In Brazil And In Europe, Jorge Brito Pereira
Emory Corporate Governance and Accountability Review
The common statement that there are two different regulatory systems concerning the mandatory takeover rule – the market rule system and the equal opportunity system – is, in practice, overly simplistic: facing the choice between freedom and strict regulation on whether the control premium should be proportionally shared with all non-controlling shareholders, some jurisdictions have adopted a hybrid solution. The Brazilian mandatory takeover rule (re)approved in 2001 is a good example. This paper will comprehensively analyse the Brazilian and European rules on mandatory takeover bids, using empirical data about the Brazilian markets and details of various cases that tested the …
Why Antitrust, Not Unionization, Is The Answer To Underpayment Of Student-Athletes,
2022
Emory University School of Law
Why Antitrust, Not Unionization, Is The Answer To Underpayment Of Student-Athletes, Evan Nelson
Emory Corporate Governance and Accountability Review
This Comment examines whether student-athletes should be allowed to unionize and collectively bargain for their rights and will present a legal argument against the unionization of student-athletes. The reasoning behind this argument is that student-athletes are not employees, and therefore, are not able to unionize. Even if student-athletes were categorized as employees, they would struggle to collectively bargain for their rights due to various states’ laws that prohibit public employees from unionizing. Rather, this Comment argues that the answer to solving college athlete underpayment is through the remedies that can be provided in antitrust law. The reasoning behind this argument …
A Future Of Mandatory Environment, Social, And Governance (Esg) Disclosures: A Review Of Public Comments As A Case Study In The Impact Of Esg,
2022
Emory University School of Law
A Future Of Mandatory Environment, Social, And Governance (Esg) Disclosures: A Review Of Public Comments As A Case Study In The Impact Of Esg, Jessica Dennis Jackson
Emory Corporate Governance and Accountability Review
No abstract provided.