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Articles 31 - 60 of 93
Full-Text Articles in Law
Ccsi Submits Written Views To Us Department Of State Regarding Uncitral’S Working Group Iii, Columbia Center On Sustainable Investment
Ccsi Submits Written Views To Us Department Of State Regarding Uncitral’S Working Group Iii, Columbia Center On Sustainable Investment
Columbia Center on Sustainable Investment Staff Publications
In connection with the US Department of State’s Annual Advisory Committee on Private International law meeting in May 2019, CCSI submitted written views regarding UNCITRAL’s Working Group III on ISDS reform. CCSI’s comments highlighted specific areas of CCSI’s research as it relates to the US Government and its work within the Working Group. Specifically, US investment treaty negotiating objectives specify that covered foreign investors in the United States should not be accorded greater substantive rights than domestic investors. CCSI highlights the ways in which greater procedural rights afforded under investment treaties to foreign investors in practice result in greater substantive …
The Specter Of The Giant Three, Scott Hirst, Lucian Bebchuk
The Specter Of The Giant Three, Scott Hirst, Lucian Bebchuk
Faculty Scholarship
This Article examines the large, steady, and continuing growth of the Big Three index fund managers — BlackRock, Vanguard, and State Street Global Advisors. We show that there is a real prospect that index funds will continue to grow, and that voting in most significant public companies will come to be dominated by the future “Giant Three.”
We begin by analyzing the drivers of the rise of the Big Three, including the structural factors that are leading to the heavy concentration of the index funds sector. We then provide empirical evidence about the past growth and current status of the …
Corporate Governance By Index Exclusion, Scott Hirst, Kobi Kastiel
Corporate Governance By Index Exclusion, Scott Hirst, Kobi Kastiel
Faculty Scholarship
Investors have long been unhappy with certain governance arrangements adopted by companies undertaking initial public offerings, such as dual-class voting structures. Traditional sources of corporate governance rules—the Securities and Exchange Commission, state law, and exchange listing rules—do not constrain these arrangements. As a result, investors have turned to a new source of governance rules: index providers.
This Article provides a comprehensive analysis of index exclusion rules and their likely effects on insiders’ decision-making. We show that efforts to portray index providers as the new sheriffs of the U.S. capital markets are overstated. Index providers face complex and conflicting interests, which …
Alternatives To Investor-State Dispute Settlement, Lise Johnson, Jesse Coleman, Brooke Güven, Lisa E. Sachs
Alternatives To Investor-State Dispute Settlement, Lise Johnson, Jesse Coleman, Brooke Güven, Lisa E. Sachs
Columbia Center on Sustainable Investment Staff Publications
Proponents often explain support for international investment agreements (IIAs) for their ability to: (1) promote investment flows; (2) depoliticize disputes between investors and states; (3) promote the rule of law; and (4) provide compensation for certain harms to investors – objectives of varying degrees of importance to multinational enterprises, home states, host states, and other stakeholders.
While each of these objectives may seem desirable, it is important to consider what exactly they mean and whether IIAs are optimally tailored to achieve them.
This two-part series aims to consider just that. In the first blog installment, we asked of investor-state dispute …
Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson
Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson
Columbia Center on Sustainable Investment Staff Publications
International investment treaties entrench and exacerbate intra-national inequality by:
- Providing stronger substantive legal rights to a certain class of actors that in turn strengthen the legal force of their economic rights and “expectations”, with potentially negative impacts on the competing rights and interests of other stakeholders; and
- Providing unequal procedural rights to a certain class of actors, easing their ability, through ISDS, to challenge regulatory measures negatively impacting their economic interests, while other individuals and entities continue to face relatively high legal and practical barriers to using litigation to protect and/or enhance public interest objectives.
This Working Paper, adapted from …
Disclosure's Purpose, Hillary A. Sale
Disclosure's Purpose, Hillary A. Sale
Georgetown Law Faculty Publications and Other Works
The United States securities regulatory infrastructure requires disclosure of a wide array of information both by and about covered companies. The basic purpose of the disclosures is to level the playing field – for investors, for issuers, and for the public. Although investor protection is the disclosure goal often touted, this article develops the purposes of disclosure extending beyond investors to issuers and the public. Indeed, the disclosure system is designed to level the playing field for issuers— addressing confidentiality concerns, for example. In addition, the system helps to promote confidence in the markets, which, in turn, enables growth and …
Intermediated Securities Holding Systems Revisited: A View Through The Prism Of Transparency, Thomas Keijser, Charles W. Mooney Jr.
Intermediated Securities Holding Systems Revisited: A View Through The Prism Of Transparency, Thomas Keijser, Charles W. Mooney Jr.
All Faculty Scholarship
This chapter explains several benefits of adopting transparent information technology systems for intermediated securities holding infrastructures. Such transparent systems could ameliorate various prevailing problems that confront existing tiered, intermediated holding systems, including those related to corporate actions (dividends, voting), claims against issuers and upper-tier intermediaries, loss sharing and set-off in insolvency proceedings, money laundering and terrorist financing, and privacy, data protection, and confidentiality. Moreover, transparent systems could improve the functions of intermediated holding systems even without changes in laws or regulations. They also could provide a catalyst for law reform and a roadmap for substantive content of reforms. Among potential …
Crowdfunding In Arkansas? Yes, You Can!, Carol Goforth
Crowdfunding In Arkansas? Yes, You Can!, Carol Goforth
Arkansas Law Notes
Following enactment of the Jumpstart Our Business Startups Act (also known as the JOBS Act) in 2012, the SEC expanded the options for issuers seeking an exemption from the registration requirement for the sale of securities under federal law, while simultaneously preempting inconsistent state law. One such innovation was Regulation Crowdfunding, generally referred to as Reg. CF, which currently allows compliant issuers to raise up to $1,070,000 in any 12-month period by seeking relatively small investments from a large number of investors.
Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke
Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke
Columbia Center on Sustainable Investment Staff Publications
Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.
Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. …
Enforcing Public Takeover Regulation: Reconciling Public And Private Interests, Wai Yee Wan
Enforcing Public Takeover Regulation: Reconciling Public And Private Interests, Wai Yee Wan
Research Collection Yong Pung How School Of Law
Takeover regulation in the UK, Hong Kong and Singaporerelies on takeover codes and takeover panels. However, parties aggrieved by thedecisions of the panels may sometimes challenge them in the courts, giving riseto the potential of overlapping jurisdictions. The problem is compounded by twofactors: the enforcement of the takeover codes can have substantiveimplications on the parties’ ability to enforce their rights in courts, and takeoverpanels and courts assess matters differently. This article argues that thereneeds to be a clearer delineation between the potentially overlappingjurisdictions of the takeover panels and the courts.
Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox
Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox
Articles
Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries has evolved to push them gently toward this consensus. But these laws still provide broad scope for fiduciaries to recommend that clients invest instead in specific assets that they believe will produce “alpha” by outperforming the market. Seeking alpha comes at a cost, however, in …
Blockchain-Based Token Sales, Initial Coin Offerings, And The Democratization Of Public Capital Markets, Jonathan Rohr, Aaron Wright
Blockchain-Based Token Sales, Initial Coin Offerings, And The Democratization Of Public Capital Markets, Jonathan Rohr, Aaron Wright
Articles
Best known for their role in the creation of cryptocurrencies like bitcoin, blockchains are revolutionizing the way technology entrepreneurs finance their business enterprises. In 2017 alone, tech entrepreneurs raised over $6 billion through the sale of blockchain-based digital tokens, with some sales lasting mere seconds before selling out. In a token sale, also referred to as an “initial coin offering” or “ICO,” organizers of a project sell digital tokens to members of the public to finance the development of new technological platforms and services. After the initial sale, cryptocurrency exchanges scattered across the globe list tokens for trading and facilitate …
Bridging The Information Gap: How Access To Land Contracts Can Serve Community Rights, Lara Wallis, Sam Szoke-Burke
Bridging The Information Gap: How Access To Land Contracts Can Serve Community Rights, Lara Wallis, Sam Szoke-Burke
Columbia Center on Sustainable Investment Staff Publications
Land contracts (also known as investor-state contracts, or concession agreements) show what commitments a forestry, farming or renewable energy company has made and what the government has said the company can do on the land. These promises define the positive and harmful effects the company’s project could have on community members’ livelihoods and human rights, and on the environment.
Accessing land contracts is a crucial strategy for local organizations. This briefing note explains how local organizations can use land contracts and the Open Land Contracts repository (OpenLandContracts.org) to help communities to:
- Understand company and government obligations related to a company …
Reputational And Integrity Due Diligence On Investors, Kroll, Columbia Center On Sustainable Investment
Reputational And Integrity Due Diligence On Investors, Kroll, Columbia Center On Sustainable Investment
Columbia Center on Sustainable Investment Staff Publications
Before deciding to invest, companies and investors will perform background research on the uncertainties and risks associated with the proposed investment. For natural resource projects, there are risks around geology, market and price developments, construction delays, operations, regulatory changes, political disruptions, and reputational issues. Feasibility studies and due diligence assessments aim to better understand these risks, reduce uncertainty where possible and be better prepared to manage them.
Governments too should understand the risks that are associated with the proposed investments and get to know the investors before entering into negotiations or signing contracts. This is particularly important for long-term agreements …
Digital Realty Trust V. Somers: Whistleblowers And Corporate Retaliation, Susan B. Heyman
Digital Realty Trust V. Somers: Whistleblowers And Corporate Retaliation, Susan B. Heyman
Law Faculty Scholarship
No abstract provided.
Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev
Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev
Faculty Articles
This Article analyzes the history, design, and effectiveness of the highly controversial CEO pay ratio disclosure rule, which went into effect in 2018. Based on a regulatory mandate contained in the Dodd-Frank Act of 2010, the rule requires public companies to disclose the ratio between CEO pay and median worker pay as part of their annual filings with the Securities and Exchange Commission (SEC). The seven-year rulemaking process was politically contentious and generated a level of public engagement that was virtually unprecedented in the long history of the SEC disclosure regime. The SEC sought to minimize compliance costs by providing …
Disrupting Secured Transactions, Christopher G. Bradley
Disrupting Secured Transactions, Christopher G. Bradley
Law Faculty Scholarly Articles
Article 9 of the Uniform Commercial Code (UCC) governs secured transactions in personal property in all fifty states and has been lauded as “the most successful commercial statute ever.” But while Article 9 has facilitated commerce and economic growth, it remains complicated and inefficient in numerous respects. Its weaknesses are well known but have been considered necessary evils, accepted because no better approaches were available. But just as the UCC was motivated initially by the idea of streamlining the law to accommodate modern commerce, now that goal should motivate revision of the UCC itself.
This Article proposes to remove and …
Obtaining And Enforcing A Security Interest In Local Currency Under Article 9 Of The Ucc, Marina C. Leary
Obtaining And Enforcing A Security Interest In Local Currency Under Article 9 Of The Ucc, Marina C. Leary
Law Student Publications
Community currency is known by many names including complementary currency, alternative currency, and parallel currency. Community currency operates alongside an official or national currency (e.g., dollars or euros) with the purpose of circulating within a small geographic area to facilitate the sale of goods and services. In other words, community currency refers to a privatized form of currency that is not backed by a government entity. With the increased use of community currency, it has the potential to serve as collateral for a security interest under the Article 9 of the Uniform Commercial Code. Although there are several types of …
Myth Of The Attorney Whistleblower, Carliss N. Chatman
Myth Of The Attorney Whistleblower, Carliss N. Chatman
Scholarly Articles
Notwithstanding the political grandstanding and legal regimes put in place to prevent the next Enron, this article explores whether attorney whistleblower provisions provided in the Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer and in the Model Rules of Professional Conduct are effective. When faced with attorney involvement in Enron, Congress passed § 307 of the Sarbanes Oxley Act (Sarbanes), which required the Securities and Exchange Commission (SEC) to amend its standards governing the conduct of attorneys practicing before the SEC. In response, the SEC and the American Bar Association …
Lehman 10 Years Later: Lessons Learned?, Steven A. Ramirez
Lehman 10 Years Later: Lessons Learned?, Steven A. Ramirez
Faculty Publications & Other Works
No abstract provided.
The Future Of Insider Trading After Salman: Perpetuation Of A Flawed Analysis Or A Return To Basics, Charles W. Murdock
The Future Of Insider Trading After Salman: Perpetuation Of A Flawed Analysis Or A Return To Basics, Charles W. Murdock
Faculty Publications & Other Works
In large part due to two poorly reasoned decisions by Justice Powell in the early 1980s, Chiarella v. U. S. and Dirks v. SEC, the development of insider trading law has been constrained, enforcement has been hampered, and insider-trading has grown to the point where hundreds of millions of dollars are at stake. Moreover, Chiarella and Dirks were inconsistent with the Congressional policy that the purpose of the securities laws is to ensure a level playing field where one participant does not have an undue advantage over another participant. A Second Circuit decision, U.S. v. Newman unnecessarily extended Dirks, notwithstanding …
Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall Thomas
Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall Thomas
All Faculty Scholarship
In response to a sharp increase in litigation challenging mergers, the Delaware Chancery Court issued the 2016 Trulia decision, which substantively reduced the attractiveness of Delaware as a forum for these suits. In this Article, we empirically assess the response of plaintiffs’ attorneys to these developments. Specifically, we document a troubling trend—the flight of merger litigation to federal court where these cases are overwhelmingly resolved through voluntary dismissals that provide no benefit to the plaintiff class but generate a payment to plaintiffs’ counsel in the form of a mootness fee. In 2018, for example, 77% of deals with litigation were …
Fintech And The Innovation Trilemma, Yesha Yadav, Chris Brummer
Fintech And The Innovation Trilemma, Yesha Yadav, Chris Brummer
Vanderbilt Law School Faculty Publications
Whether in response to roboadvising, artificial intelligence, or crypto-currencies like Bitcoin, regulators around the world have made it a top policy priority to supervise the exponential growth of financial technology (or "fintech") in the post-Crisis era. However, applying traditional regulatory strategies to new technological ecosystems has proven conceptually difficult. Part of the challenge lies in the tradeoffs involved in regulating innovations that could conceivably both help and hurt consumers and market participants alike. Problems also arise from the common assumption that today's fintech is a mere continuation of the story of innovation that has shaped finance for centuries.
This Article …
Revolving Elites: The Unexplored Risk Of Capturing The Sec, Randall S. Thomas
Revolving Elites: The Unexplored Risk Of Capturing The Sec, Randall S. Thomas
Vanderbilt Law School Faculty Publications
Fears have abounded for years that the sweet spot for capture of regulatory agencies is the “revolving door” whereby civil servants migrate from their roles as regulators to private industry. Recent scholarship on this topic has examined whether America’s watchdog for securities markets, the Securities and Exchange Commission (“SEC”), is hobbled by the long-standing practices of its enforcement staff exiting their jobs at the Commission and migrating to lucrative private sector employment where they represent those they once regulated. The research to date has been inconclusive whether staff revolving door practices have weakened the SEC’s verve. In this paper, we …
Oversight Failure In Securities Markets, Yesha Yadav
Oversight Failure In Securities Markets, Yesha Yadav
Vanderbilt Law School Faculty Publications
According to statute, securities exchanges play an essential role in ensuring compliance with applicable laws and industry standards. Long imagined as unique in their institutional capacity to bring traders together, collect information and exclude problem participants from the marketplace, exchanges have offered an efficient source of private discipline for public regulators. The classic conception of the exchange, however, no longer holds true in today’s markets. Rather than concentrate activity within a handful of exchanges, equity markets are fragmented across a network of 14 exchanges and around 40 lightly regulated, off-exchange alternative venues (colloquially, “dark pools”).
This Article shows that the …
Calculating Sec Whistleblower Awards: A Theoretical Approach, Amanda M. Rose
Calculating Sec Whistleblower Awards: A Theoretical Approach, Amanda M. Rose
Vanderbilt Law School Faculty Publications
The Dodd-Frank Act provides that SEC whistleblower awards must equal not less than 10 and not more than 30 percent of the monetary penalties collected in the action to which they relate; SEC Rule 21F-6 provides criteria that the SEC may consider in determining the award percentage within the statutory bounds. When applying the Rule 21F-6 criteria, the SEC is required to think only in percentage terms, ignoring the dollar payout the award will actually yield. Last June the SEC proposed to change this, at least in cases where the existing methodology would yield an award less than $2 million …
Judges And Judgment: In Praise Of Instigators, Kathryn Judge
Judges And Judgment: In Praise Of Instigators, Kathryn Judge
Faculty Scholarship
This Essay is about mutual funds. Because of that, it may put many to sleep long before we get to the heart of the matter. I encourage you right now to stay awake, or at least keep one eye propped open. For embedded in this story about mutual funds, rent seeking, the challenge of separating the good and the bad, and the even greater challenge of respecting autonomy in an environment where so many choices seem to be bad ones, is the story of a judge. That judge is the Honorable Richard A. Posner, aka RAP, Dick, Professor Posner, the …
Startup Governance, Elizabeth Pollman
Startup Governance, Elizabeth Pollman
All Faculty Scholarship
Although previously considered rare, over three hundred startups have reached valuations over a billion dollars. Thousands of smaller startups aim to follow in their paths. Despite the enormous social and economic impact of venture-backed startups, their internal governance receives scant scholarly attention. Longstanding theories of corporate ownership and governance do not capture the special features of startups. They can grow large with ownership shared by diverse participants, and they face issues that do not fit the dominant principal-agent paradigm of public corporations or the classic narrative of controlling shareholders in closely held corporations.
This Article offers an original, comprehensive framework …
Financial Contracting With The Crowd, Usha Rodrigues
Financial Contracting With The Crowd, Usha Rodrigues
Scholarly Works
Equity crowdfunding is broken. The current model imposes too many burdens on entrepreneurs in exchange for too little money. For alternative models, this Article looks to the time-tested venture capital financial contract, and the recent experience of initial coin offerings (ICOs). ICOs made headlines over the past two years, as the means by which blockchain technology companies raised billions of dollars to launch new cryptocurrency ventures. Although their novelty as a monetary and investing device is well known, ICOs also presented significant, unappreciated insights into financial contracting.
ICOs furnished an unprecedented experiment into how bargains would look if entrepreneurs raised …
Mandatory Disclosure In Primary Markets, Andrew A. Schwartz
Mandatory Disclosure In Primary Markets, Andrew A. Schwartz
Publications
Mandatory disclosure—the idea that companies must be legally required to disclose certain, specified information to public investors—is the first principle of modern securities law. Despite the high costs it imposes, mandatory disclosure has been well defended by legal scholars on two theoretical grounds: ‘Agency costs’ and ‘information underproduction.’ While these two concepts are a good fit for secondary markets (where investors trade securities with one another), this Article shows that they are largely irrelevant in the context of primary markets (where companies offer securities directly to investors). The surprising result is that primary offerings—such as an IPO—may not require mandatory …