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Initiation Payments
Get PDFMany of the central discussions in corporate governance, including those regarding proxy contests, shareholder proposals, and other activism or stewardship, can be understood as a single question: Is there under-initiation of corporate changes that investors would collectively prefer?
This Article sheds light on this question in three ways. First, the Article proposes a theory of investor initiation, which explains the hypothesis that there is under-initiation of collectively-preferred corporate change by investors. Even though investors collectively prefer that certain corporate changes take place, the costs to any individual investor from initiating such changes through high-cost proxy contests, or even low-cost shareholder proposals, would outweigh the benefits to that investor.
Second, the Article puts forward a concrete, tractable, and readily implementable proposal that would eliminate any under-initiation by investors. If the problem is indeed that costs to an initiator exceed the benefits, the solution follows clearly: Initiation payments to investors that initiate corporate changes, contingent on the approval of the change by investors or managers, sufficient to increase the benefits to investors that initiate successful changes above their costs.
Third, the Article explains how the only requirement necessary for initiation payments to be implemented is that institutional investors support them. This means that whether initiation payments are actually implemented is effectively a test of whether institutional investors believe there is under-initiation and whether they have incentives to rectify it. Observing whether institutional investors support initiation payments will thus shed light not only on whether there is under-initiation, but also on the ongoing debate regarding the incentives of investment managers
Questions of Intellectual Property and Fundamental Values in the Digital Age
Get PDFToday\u27s intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in the progress of science and useful arts and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today\u27s internet world.
The article (which was presented as the annual Nies Lecture in April 2022 at Marquette Law School) explains how intellectual property law, originally envisioned as a regime to enable markets in intellectual goods, is becoming a framework through which to discuss essential sociopolitical issues. The result is to refigure the substance of progress in terms demonstrating the urgent relationship of art and science with social justice today
Preventing the Slide down the Slippery Slope from Assisted Suicide to Euthanasia While Protecting the Rights of People with Disabilities Who Are “Not Dead Yet.”
No full textSince at least the advent of Jack Kevorkian’s “suicide machine” the major argument against adopting physician-assisted suicide laws has been that they will lead us down a slippery slope to state-sanctioned killing by physicians (usually termed “euthanasia”) (Kevorkian, Citation1991). In the United States the legal line between physician-assisted suicide and euthanasia has not been breached in any of the 10 states that have adopted “Medical Aid in Dying” (also termed “physician-assisted suicide”) laws. But as well illustrated by Shavelson et al. “Neurologic Diseases and Medical Aid in Dying,” efforts continue to move us down the slope, at least a little, toward a model where physicians are expected to kill patients whose voluntary suicide efforts are not successful (Shavelson et al. Citation2023).
The strongest arguments for expansion include honouring the autonomy of patients with physical disabilities who are unable to end their own lives; and that limiting “medical aid in dying” to patients who can manage to take death-producing medications without assistance creates a new method of discrimination. We should dispose of this last argument first, as it has already been decided by the US Supreme Court. In Vacco v. Quill it was argued that New York law which permitted refusing life-sustaining medical treatment, but did not permit assisting suicide, denied people who had no medical intervention to refuse equal protection of laws. The Court was not persuaded because “the two acts are different,” and “by permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law [treats everyone the same and] follows a longstanding and rational distinction.” (Vacco v. Quill, Citation1997) The same legal rationale applies to the ALS patient who needs assistance to commit suicide and resides in a MAID state
Surrey\u27s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was
Get PDFWas Stanley Surrey racist? Was he a coward for not speaking as plainly about the Swiss tax haven problem in public as the Surrey Papers reveal his team did in private? In the broad sweep of history Surrey’s silence may have mattered a great deal or it may have mattered very little. The quiet aspect of the Liberia problem that it highlights undoubtedly does. Exploiting the public’s misunderstanding of the term tax haven as Surrey quickly learned to do has become second nature to scholars and policymakers alike. No less powerful than the loud aspect of the Liberia problem, the dog whistle politics it embodies demean all those who harness it by railing against tax havens just as it does those who decry “welfare cheats or illegal aliens.” Banning the term would not solve the Liberia problem, but everyone who uses it must be aware of the risks they court and the lasting damage they cause by doing so
Prosecution and Polarization
Get PDFDomestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.
This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time of polarization? This contribution describes a prosecution polarization dynamic, wherein criminal cases may foster polarization domestically and internationally. In making this argument, this symposium contribution will survey theories of philosophy, psychology, and sociology that show the complexity of social meaning. It argues that this dynamic thus complicates scholarly notions that criminal justice should do reparative work. Domestically, some scholars argue that criminal justice should restore harmed victims or reconstruct torn community norms after a moral breach. Internationally, scholars contend that criminal tribunals should effect transitional justice, promoting accountability for atrocity crimes — genocide, crimes against humanity, and war crimes — in order to heal postconflict societies. And yet, often, indictment and prosecution have the opposite effect, fostering polarization and alienation
Saving Climate Disclosure
Get PDFDesigning a regulatory response to climate change is one of the defining challenges of our era. In an attempt to address it, the Securities and Exchange Commission (SEC) has recently proposed a historic rule requiring climate-related disclosure by companies, resting squarely on the rationale of investor demand. The proposed climate disclosure rule has met with an unprecedented response, some of it reflective of investor demand, but also including a broad array of opponents critical of the rule, who cast doubt on the rule\u27s validity. A judicial challenge is all but inevitable.
This Article explains that the best way for the SEC to save climate disclosure and to protect investors is to let them decide. That is, the SEC should let companies opt out of all or part of their climate disclosure obligations if sufficient investors have voted to allow it to do so. This investor-optional approach would result in three important improvements necessary to save climate disclosure and best protect investors. First, it would make the design of the SEC\u27s rule consistent with the SEC\u27s core claim that there is investor demand for climate disclosure; if this is indeed the case, a mandatory rule is not necessary, creating a logical inconsistency that threatens the validity of a mandatory rule. Second, making climate disclosure investor-optional would circumvent claims that the rule is invalid, which-to the extent they apply at all-apply only to a mandatory disclosure rule. Third, an investor-optional rule would better protect investors than a mandatory rule, reducing their net costs, while preserving their benefits. As a result, the SEC is required to consider an investor-optional rule, and having done so, it will be difficult for the SEC to justify adopting a mandatory rule instead. As well as explaining why the SEC should let investors decide about climate disclosure, the Article explains how the SEC should design the rule to ensure that it best protects investors. Letting investors decide would have benefits beyond climate, not only for other ESG disclosure rules, but for the SEC\u27s regulatory program more generally, and thus also for investors
Weed Rules: Toward a Just, Joyous, and Sensible Marijuana Policy in a Post-Legalization Nation
No full textWith full legalization seeming inevitable, it\u27s time to shift the conversation—from whether recreational cannabis should be legalized to how.Weed Rules argues that it\u27s time for states to abandon their grudging tolerance approach to legal weed and to embrace careful exuberance. In this thorough and witty book, law professor Jay Wexler invites policy makers to responsibly embrace the enormous benefits of cannabis, including the joy and euphoria it brings to those who use it.The grudging tolerance approach has led to restrictions that are too strict in some cases—limiting how and where cannabis can be used, cultivated, marketed, and sold—and far too loose in others, allowing employers and police to discriminate against users. This book shows how focusing on joy and community can lead us to an equitable marijuana policy in which minority communities, most harmed by the war on drugs, play a leading role in the industry. Centering pleasure and fun as legitimate policy goals, Weed Rules puts forth specific policies to advocate for a more just, sensible, and joyous post-legalization society.https://scholarship.law.bu.edu/books/1257/thumbnail.jp
Unifying Concepts: Critical Race Theory, Academic Freedom of Speech, and Democracy
Get PDFPoster for Jasmine Gonzales Rose\u27s 2023 University lecture.https://scholarship.law.bu.edu/law_presentations/1002/thumbnail.jp
Large Corporations and Investor-State Arbitration
No full textIn May 2023, more than thirty members of the U.S. Congress sent a letter to the Biden administration, arguing that “[l]arge corporations have weaponized [investor-state dispute settlement (ISDS)] to benefit their own interests” and that “the broken ISDS system has time and time again worked in favor of big business interests.” This criticism against ISDS is not new. ISDS has often been perceived as a system primarily utilized by large corporations to serve their interests, despite evidence to the contrary. This perception is driven by some high-profile victories secured by large corporations (e.g., Occidental v. Ecuador), as well as significant cases brought by large corporations that challenged public health or environmental regulations of host countries (e.g., Philip Morris v. Australia; RWE v. Netherlands), which led to concerns of “regulatory chill.” Partly due to such concerns, several countries have terminated their bilateral investment treaties and international investment agreements that contain ISDS provisions. Despite such criticism and backlash, we still know relatively little about the users of the system, let alone which users are more likely to win cases or to use the system to chill regulations. This post summarizes the key findings of a recent article (the “Article”) that introduces a new dataset on the characteristics of claimants in ISDS cases up to 2020, focusing on the users and beneficiaries of ISDS, and the implications of these findings for ongoing ISDS reform
A Scientific Approach to Tech Accountability
No full textThe Federal Trade Commission can only do so much to hold tech companies accountable. Enforcement agencies and the people they protect need help. One problem is that the inner workings of large organizations and complex algorithmically driven systems remain obscure and opaque while their privacy representations are voluminous and vague. In this Essay, we propose a scientific approach to tech accountability, where academic researchers can play a larger role in privacy policy. This approach involves surfacing a company’s privacy representations and statements, as well as measuring the actual behavior of their systems with respect to algorithms, user interfaces, and data processing.
We build upon our experience as a multi-disciplinary group of researchers trained in computer science, engineering, and law to explore how researchers can support the movement for tech accountability. In addition to detailing how researchers can surface a company’s privacy representations and measure the behavior of tech systems, we explore how to use scientific results for greater accountability, such as going public, working with regulators, filing Unfair, Deceptive, or Abusive Acts or Practice (“UDAAP”) complaints and lawsuits, and taking advantage of data subject rights. We draw from our own research to demonstrate how this approach can be helpful, such as in uncovering significant discrepancies between privacy representations of tech companies and the actual behavior of their systems and devices. We conclude by calling for a more robust and long-term collaboration between researchers and regulators