Articles Category
Patently Impossible
Oct. 26, 2011—The quest to achieve the impossible fuels creativity, spawns new fields of inquiry, illuminates old ones, and extends the frontiers of knowledge. It is difficult, however, to obtain a patent for an invention which seems impossible, incredible, or conflicts with well-established scientific principles. The principal patentability hurdle is operability, which an inventor cannot overcome if...
Breaching the Mortgage Contract: The Behavioral Economics of Strategic Default
Oct. 26, 2011—Underwater homeowners face a quandary: Should they make their monthly payments as promised or walk away and save money? Traditional economic analysis predicts that homeowners will strategically default (voluntarily enter foreclosure) when it is cheaper to do so than to keep paying down the mortgage debt. But this prediction ignores the moral calculus of default,...
Golan v. Holder (2011)
Sep. 16, 2011—The October, 2011 Roundtable was on Golan v. Holder, which was argued at the Supreme Court on October 5, 2011. In Golan, the Court considered whether Congress may constitutionally confer copyright on works that have fallen into the public domain. Congress created a new class of “restored” works in 1996 in order to fulfill its obligations under...
Visa as Property, Visa as Collateral
May. 30, 2011—Although the “tragic choice” framework has not been applied in the context of U.S. immigration law, current immigration policy is rife with tragic choices, defined as a commitment by policy elites to maintaining certain illusions which shield from public view tough policy choices that offend deeply-held values. Take, for example, the issue of commodification of...
Optimal Lead Plaintiffs
May. 30, 2011—Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as...
Memory and Punishment
May. 30, 2011—This Article is the first in-depth scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this Article will argue that there is a deep relationship between memory and the foundational principles justifying how...
Causing Infringement
Apr. 27, 2011—Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement based on common law tort rules. But common law tort is an enormous subject. Without...
Committee Capture? An Empirical Analysis of the Role of Creditors’ Committees in Business Reorganizations
Apr. 27, 2011—The number of businesses experiencing financial distress increased significantly during the past several years. The number of Chapter 11 reorganization cases likewise rose. And many of these business failures were spectacular, leaving little value for creditors and even less for shareholders. Consequently, how the business debtor’s limited asset pie is divided and who gets to...
The Firm as Cartel Manager
Apr. 27, 2011—Antitrust law is the primary legal obstacle to price fixing, which is condemned by Section One of the Sherman Act. Section One condemns only concerted action between separate entities, not unilateral conduct by a single entity. Firms that engage in price fixing may try to reduce the risk of antitrust liability by structuring their actions...
Procedure, Substance, and Erie
Apr. 27, 2011—This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process—in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues...
Paying For Advice: The Role of the Remuneration Consultant in U.K. Listed Companies
Mar. 30, 2011—Compensation consultants are an integral part of the process of determining executive pay in large listed companies. This study reports interview-based research with protagonists in setting executive compensation in twelve FTSE 350 companies and addresses why the consultants are used, what they do, and how they are perceived. Consultants have several important roles. Firstly, they...
Executive Compensation Consultants and CEO Pay
Mar. 30, 2011—This Article surveys recent empirical studies on the relation between compensation consultants and CEO pay. The economic rationale for using executive compensation consultants is that they supply valuable data, information, and professional expertise to client firms. However, critics argue that the consultant’s independence might be compromised because of conflicts of interest arising from the cross...
Economics, Politics, and the International Principles for Sound Compensation Practices: An Analysis of Executive Pay at European Banks
Mar. 30, 2011—In this Article, we submit that the compensation structures at banks before the financial crisis were not necessarily flawed and that recent reforms in this area largely reflect already existing best practices. In Part I we review recent empirical studies on corporate governance and executive pay at banks and suggest that there is no strong...
Insider Trading and CEO Pay
Mar. 30, 2011—This Article presents evidence showing that boards of directors “bargain” with executives about the profits they expect to make from trades in firm stock. The evidence suggests that executives whose trading freedom increased using Rule 10b5-1 trading plans experienced reductions in other forms of pay to offset the potential gains from trading. There are two...
Comparing CEO Employment Contract Provisions: Differences Between Australia and the United States
Mar. 30, 2011—This study compares CEO employment contracts across two common law countries: the United States and Australia. Although the regulatory regimes of these jurisdictions enjoy many comparable features, there are also some important institutional differences in terms of capital market, tax, and regulatory structures, which are discussed here. Debate has raged in the United States on...