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Articles 1 - 18 of 18
Full-Text Articles in Law
Citizens United As Corporate Law Narrative, Reza Dibadj
Citizens United As Corporate Law Narrative, Reza Dibadj
Reza Dibadj
In a 5-4 opinion, decided January 21, 2010, Citizens United struck down § 203 of the Bipartisan Campaign Reform Act of 2002 which prohibited corporations and unions from using general treasury funds for “electioneering communications”—defined as broadcast, cable or satellite communications that are publicly distributed, within 30 days of a primary election and 60 days of a general election, and advocate for or against a particular candidate in a federal election. This Essay analyzes Citizens United through two lenses—constitutional law and corporate law. It suggests that while the majority’s opinion is breathtaking as a piece of constitutional law, it is …
Brokers, Fiduciaries, And A Beginning, Reza Dibadj
Brokers, Fiduciaries, And A Beginning, Reza Dibadj
Reza Dibadj
Under our securities regime, investment advisers are considered to be fiduciaries, whereas broker-dealers are not. This historical divergence emerges from a combination of statute and federal common law: brokers were exempted from the definition of “investment adviser” in 1940, while the United States Supreme Court in 1963 declared the investment advisers to have fiduciary obligations. The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), signed into law on July 21, 2010, effectively questions whether this bifurcation makes sense by asking the Securities and Exchange Commission (SEC) to study this divergence and giving it statutory authority to make the …
How Does The Government Interact With Business?: From History To Controversies, Reza Dibadj
How Does The Government Interact With Business?: From History To Controversies, Reza Dibadj
Reza Dibadj
The relationship between American government and American business is a vast topic of immeasurable complexity. In keeping with the timely and important theme of this Symposium, yet at the same try to focus its line of inquiry, this Article first offers a brief survey of the relationship between government and business viewed through a regulatory lens. Using this history as backdrop, it then uses three illustrative doctrinal areas as symptomatic of how this relationship has become problematic and how it might be improved. The piece is structured into two principal sections. Part I provides a historical overview of the history …
Conscious Parallelism Revisited, Reza Dibadj
Conscious Parallelism Revisited, Reza Dibadj
Reza Dibadj
Conscious parallelism, sometimes called tacit collusion, occurs where firms adopt their business practices based on what other firms are doing, rather than competing for customers. The most obvious manifestation occurs where prices across companies in an industry not only become suspiciously similar, but also change rapidly in strikingly parallel ways. Suggested examples are legion and varied: airline tickets, gasoline, cellular phone text messaging and roaming rates, interest rates on bank accounts, credit card interchange fees, movie tickets, recorded music, breakfast cereals, real estate and travel agent commissions, electricity prices in deregulated markets, and air cargo fuel surcharges, just to name …
Four Key Elements Of Successful Financial Regulatory Reform, Reza Dibadj
Four Key Elements Of Successful Financial Regulatory Reform, Reza Dibadj
Reza Dibadj
The most recent crisis on Wall Street presents our nation with an extraordinary opportunity to begin a conversation about the economic and social policies that have led to the financial meltdown we have witnessed over the past few months. In keeping with the themes of the Hastings Business Law Journal’s Symposium, “Beyond the Bailout: Risk, Responsibility, and the Road Ahead,” this Article does not chronicle the crisis, but rather focuses on the lessons it might hold in getting “beyond the bailout.” To mitigate, or perhaps even avoid, future disasters I argue that policymakers should focus on remedying four pernicious facilitators …
Networks Of Heightened Scrutiny In Corporate Law, Reza Dibadj
Networks Of Heightened Scrutiny In Corporate Law, Reza Dibadj
Reza Dibadj
This Article is a follow-up to a previous article, Networks of Fairness Review in Corporate Law (Fairness). After an overview of the fundamentals of the fairness standard and network theory, Fairness deployed network and statistical analyses to conduct an empirical study of the fairness doctrine as articulated by the Delaware Supreme Court and the Delaware Court of Chancery. This initial analysis focused on the fairness standard for one principal reason: it is considered to be the most plaintiff-friendly standard of review, in marked distinction to the well-known business judgment rule (BJR). But there are also four other prominent standards of …
The Process-Welfare Nexus, Reza Dibadj
The Process-Welfare Nexus, Reza Dibadj
Reza Dibadj
In an era fashionable for its simplistic trashing of the regulatory state, Steven Croley's Regulation and Public Interests provides welcome respite. Croley mounts a valiant defense of regulation. His central argument is straightforward; namely, "that the cynical view of regulation shows far too little attention to the actual processes through which administrative agencies regulate. . . . Once the administrative state is unpacked-once it is considered in light of its procedural complexities-grim conclusions about the inability of regulatory institutions to advance the general welfare give way to more optimistic assessments." (p. 4). This book review argues that while Croley presents …
Article 82: Gestalt, Myths, Lessons, Reza Dibadj
Article 82: Gestalt, Myths, Lessons, Reza Dibadj
Reza Dibadj
Article 82 of the Treaty Establishing the European Community, which prohibits abuse of a dominant position, is the counterpart to the anti-monopolization provisions contained in Section 2 of the Sherman Act. Unfortunately, however, commentators have variously criticized recent applications of Article 82 as outdated, protectionist, inconsistent - and perhaps most damaging of all, based on faulty economics. This paper takes issue with these critiques to offer support for a robust Article 82. Narrow analyses focused on the provision's language or specific judicial decisions offer little insight. Rather, an appreciation for Article 82 can only emerge through a richer contextual analysis …
Weasel Numbers, Reza Dibadj
Weasel Numbers, Reza Dibadj
Reza Dibadj
In an attempt to cabin the open-endedness of weasel words, traditional law and economics purports to offer certainty. This article, however, argues that this scholarship deeply misunderstands modern welfare economics and suggests, contrary to the usual economic denigrations of public bureaucracy, that a robust public administrative state is essential to improving social welfare. The article first argues that the ¿wealth maximization¿ standard of traditional law and economics is fundamentally flawed. It then addresses issues central to the economic literature of social welfare, which have yet to make their way meaningfully into the law and economics discourse. The shift in welfare …
A Modest Enterprise, Reza Dibadj
A Modest Enterprise, Reza Dibadj
Reza Dibadj
This article discusses The Antitrust Enterprise by Herbert Hovenkamp. While generally praising the book for its refreshing style, its recognition of antitrust's institutional limits, and its efforts to simplify antitrust doctrine, the article ultimately criticizes it as unnecessarily wedded to neoclassical economics. The piece discusses similarities between Hovenkamp's ideas and Chicago school economics, as well as Hovenkamp's apparent skepticism of post-Chicago thinking. Ultimately, the article calls for a more dramatic reimagination of antitrust's role, arguing that neoclassical economics should not be the frontline arbiter of competition policy. Instead, the author urges returning antitrust to its former prominence through the use …
From Incongruity To Cooperative Federalism, Reza Dibadj
From Incongruity To Cooperative Federalism, Reza Dibadj
Reza Dibadj
The conventional wisdom has been that state law governs internal affairs, and federal law governs disclosure. This reassuring construct, however, has little basis in today's reality. Left alone, states have not provided adequate shareholder protections: state securities laws were historically anemic, and the regulatory reach of state corporate law shrank under a prevailing contractarian ethos. As consequence, beginning in 1933, federal securities laws emerged to regulate many internal affairs. Curiously, however, as federal regulation has grown and become increasingly preemptive over the past decade, it has often decreased shareholder protections. As a consequence, some states have recently reversed course, using …
Delayering Corporate Law, Reza Dibadj
Delayering Corporate Law, Reza Dibadj
Reza Dibadj
Corporate law has become unnecessarily complicated. Despite the proliferation of laws, problems fester and scandals erupt. Something is wrong. This Article seeks to delayer corporate law - to strip it down to its essence - and after doing so, offer concrete suggestions for reform. It is a first step toward a new minimalist architecture for corporate law. The Article begins by arguing that the core of state corporate law - corporation statutes and fiduciary duties - currently offer precious little protection to shareholders. Contractarianism, manifested through enabling statues, reflects weak economics. Existing fiduciary duties are little more than rhetorical flourish. …
Review Of Antitrust Law: Economic Theory And Common Law Evolution, Reza Dibadj
Review Of Antitrust Law: Economic Theory And Common Law Evolution, Reza Dibadj
Reza Dibadj
Professor Keith Hylton provides a timely discussion of the most important doctrines of modern antitrust. Underlying his discussion is the thesis that antitrust can perhaps be best understood through the lens of federal common law. This book review begins by discussing how Professor Hylton's book differs from other books in the field, what topics it covers, and who might profitably read the book. The bulk of the review provides a perspective on the book. On the positive side, Hylton has written a lucid text that fruitfully analyzes antitrust from both a legal and a traditional economic perspective. The review's critique, …
Reconceiving The Firm, Reza Dibadj
Reconceiving The Firm, Reza Dibadj
Reza Dibadj
Despite their seemingly sophisticated economics, existing theories of the firm have made for poor public policy, as witnessed by recurrent crises in corporate governance. This Article identifies and begins to remedy this gap. It argues that to make sense of organizational behavior, the firm needs to be reconceptualized as an entity that evolves norms within a social construct. Orthodox economic models of the firm remain focused on microanalytic equilibria drawn from assumptions of rationality. Institutional economics persists in erroneously modeling the firm as a series of efficient contracts. Behavioral economics treats the individual, not the firm, as the unit of …
Saving Antitrust, Reza Dibadj
Saving Antitrust, Reza Dibadj
Reza Dibadj
Commentators regularly criticize antitrust for its wobbly intellectual foundations and ineffectual results. To address this malaise, this Article attempts a new path: a systemic deconstruction of antitrust, followed by a reconstruction of the economic and institutional foundations of a new competition law. Paradoxically, saving antitrust will require looking beyond its traditions to incorporate learnings from economic regulation. First, the piece attempts to link antitrust's modern woes to two root causes: predominantly laissez-faire economics and limited institutions. Influential commentators have falsely defined antitrust's consumer welfare goal according to the strictures of neoclassical price theory, while ignoring antitrust's legislative history. In parallel, …
Beyond Facile Assumptions And Radical Assertions: A Case For Critical Legal Economics, Reza Dibadj
Beyond Facile Assumptions And Radical Assertions: A Case For Critical Legal Economics, Reza Dibadj
Reza Dibadj
This piece takes issue with the conventional wisdom that economic and critical approaches to law are incompatible. It argues that the facile assumptions behind the popular conception of law and economics, as well as the radical assertions characterizing traditional critical legal studies, mask the potential of each approach. Once stripped of this baggage, each reveals rich insights which, when combined, can serve as the basis for a new path. Critical legal economics is an interdisciplinary venture that seeks to apply the discipline of economic thought to prevent utopian speculation, while addressing a series of critical questions-around wealth disparities, information asymmetries, …
Regulatory Givings And The Anticommons, Reza Dibadj
Regulatory Givings And The Anticommons, Reza Dibadj
Reza Dibadj
The concepts of takings and the tragedy of the commons are familiar to those versed in the legal and economic literature. Only recently has scholarship begun to emerge around their less studied counterparts, givings and anticommons. For the first time, this article attempts to develop and bring together these two emerging areas of legal scholarship using the tools of law and economics. The focus is to explore how these new concepts, taken together, can create a mechanism with which to explore developments in administrative law. The piece first builds a theoretical argument as to how regulatory largesse can subtly create …
Toward Meaningful Cable Competition: Getting Beyond The Monopoly Morass, Reza Dibadj
Toward Meaningful Cable Competition: Getting Beyond The Monopoly Morass, Reza Dibadj
Reza Dibadj
This article argues that poor regulation has thwarted competition among cable providers. It begins by laying out the history of cable regulation to show that the regulatory framework was created by a series of ad hoc, often contradictory, policies. It then surveys the markets for video programming and broadband access to show that precious little competition exists today. Moving to an economic analysis of the industry, it highlights the surprising irony that despite years of anti-competitive maneuvering, even the incumbent players are facing financial uncertainty. The paper also proposes a new regulatory paradigm based on economic and technological reality. Finally, …