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Full-Text Articles in Law
Confronting The Certainty Imperative In Corporate Finance Jurisprudence, Diane Lourdes Dick
Confronting The Certainty Imperative In Corporate Finance Jurisprudence, Diane Lourdes Dick
Faculty Articles
This Article argues that the methodological constraints of the Imperative have abandoned its underlying goals of certainty and stability in financial markets. Therefore, a new paradigm is needed that will enable courts to allocate rights and remedies in accordance with the economic substance of arrangements, and thus better enhance market stability.
This Article proceeds as follows: Part II articulates the jurisprudential underpinnings of the Imperative. Part III examines the economic theory and assumptions reflected in Imperative-driven decisions, as well as the interpretive methodology that has evolved across a range of judicial decisions and legislative enactments. Part IV introduces a recent …
The Predictive Power Of Merger Analysis, John B. Kirkwood
The Predictive Power Of Merger Analysis, John B. Kirkwood
Faculty Articles
This article looks first at the process courts use to resolve merger challenges and finds that in the area of product market definition, merger analysis is reasonably strong. Market definition remains complex and subjective, however, and could be improved, or avoided altogether, through econometric techniques such as merger simulation. Judicial analysis of entry is much weaker. Courts ask whether the market is protected by entry barriers but rarely ask whether the barriers are high enough to make entry unprofitable.
The article also examines the results of "marginal" mergers, mergers that would have been blocked had the government and courts been …