Articles Category
Evolving Executive Equity Compensation and the Limits of Optimal Contracting
Mar. 30, 2011—Executive equity compensation in the United States is evolving. At the turn of the millennium, stock options dominated the equity pay landscape, accounting for over half of the aggregate ex ante value of senior executive pay at large public companies, while restricted stock and similar compensation accounted for only about ten percent. Beginning in 2006,...
Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State
Jan. 30, 2011—Goals based on absolute targets, risk, technology, or cost are found throughout the administrative state. “Historic baselines,” points in the past used to ground a policy goal, are just as commonplace, yet remain unexamined. Whether in budgeting or tax, criminal sentencing or environmental protection, historic baselines direct a wide range of agency activities. Their ubiquity...
The Inauthentic Claim
Jan. 30, 2011—This Article argues that third parties should be able to invest in lawsuits to a much greater degree than is currently permitted in most jurisdictions in the United States. The laws of assignment and maintenance limit the freedom of litigants to sell all or part of their lawsuits to strangers. I argue in the Article...
The Limited Diagnosticity of Criminal Trials
Jan. 30, 2011—A fundamental function of the criminal trial is to determine the facts correctly in order to distinguish between guilty and innocent defendants, and between strong and weak prosecutions. This Article seeks to answer a simple question: How good is the criminal trial at reaching accurate factual conclusions? The Article applies a body of experimental psychology...
The Pragmatic Incrementalism of Common Law Intellectual Property
Nov. 23, 2010—“Common law intellectual property” refers to a set of judge- made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to coexist with them. Surprisingly, intellectual property scholarship has paid scant attention to the nuanced lawmaking...
Punishment as Suffering
Nov. 23, 2010—When it comes to punishment, should we be subjectivists or objectivists? That is, should we define, measure, and justify punishment based on the subjective experiences of those who are punished or should we instead remain objective, focusing our attention on acts, culpability, and desert? In a recent series of high- profile articles, a group of...
Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis
Nov. 23, 2010—This Article examines current judicial interpretation of Section 7 of the Clayton Act through the lens of negotiation theory. The research exposes a gap between how courts state they are analyzing efficiency claims in Section 7 Clayton Act enforcement actions and what they are actually doing. During periods of lax antitrust enforcement, this pattern is...
Transforming the Allocation of Deal Risk Through Reverse Termination Fees
Oct. 28, 2010—Buyers and sellers in strategic acquisition transactions are fundamentally shifting the way they allocate deal risk through their use of reverse termination fees (“RTFs”). Once relatively obscure in strategic transactions, RTFs have emerged as one of the most significant provisions in agreements that govern multi-million and multi-billion dollar deals. Despite their recent surge in acquisition...
Erie and Federal Criminal Courts
Oct. 28, 2010—Today, low-level state and local criminal provisions figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to seize individuals has been the subject of extensive commentary, this Article provides...
The Puzzle of Brandeis, Privacy, and Speech
Oct. 28, 2010—Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis—his 1890 Harvard Law Review article The Right to Privacy and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech...
Common Agency and the Public Corporation
Oct. 28, 2010—Under the standard agency theory applied to corporate governance, active monitoring of manager-agents by empowered shareholder-principals will reduce agency costs created by management shirking and expropriation of private benefits. But while shareholder power may result in reduced managerial expropriation, an analysis of how that power is often exercised in public corporation governance reveals that it...
Taking Great Cases: Lessons from the Rosenberg Case
May. 31, 2010—The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Brown and Rosenberg demonstrate the Court’s different approaches toward taking “great cases.” The Brown Court is often criticized for having done too much; the Rosenberg Court is...
Arbitration Clauses in CEO Employment Contracts: An Empirical and Theoretical Analysis
May. 31, 2010—A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many...
Breach Is For Suckers
May. 31, 2010—This Article presents results from three experiments offering evidence that parties see breach of contract as a form of exploitation that makes disappointed promisees into “suckers.” In psychology, being a sucker turns on a three-part definition: betrayal, inequity, and intention. We used web-based questionnaires to test the effect of each of the three factors separately....
The Future of Agency Independence
Apr. 30, 2010—Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies...
Optimizing Private Antitrust Enforcement
Apr. 30, 2010—Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails...