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Transparency for Whom? Grounding Land Investment Transparency in the Needs of Local Actors
Get PDFTransparency is often seen as a means of improving governance and accountability of investment, but its potential to do so is hindered by vague definitions and failures to focus on the needs of key local actors.
In this new report focusing on agribusiness, forestry, and renewable energy projects (“land investments”), CCSI grounds transparency in the needs of project-affected communities and other local actors. Transparency efforts that seek to inform and empower communities can also help governments, companies, and other actors to more effectively manage operational risk linked to social conflict.
Troublingly, the report finds that: Disclosures around land investments continue to fall short Communities struggle to access disclosed information More action is needed to enable communities to understand available information; and Communities face barriers to using information and to participating in open decision-making processes.
Taking a politically informed approach that considers the incentives of powerful actors, the report proposes seven strategies to advance land investment transparency: Driving agendas with community-led processes, such as protocols, bylaws, and development plans Increasing technical support for communities Empowering good faith regulators Implementing multi-stakeholder and participatory processes, when appropriate Factoring community-generated information into investment-related decisions Initiating domestic mechanisms to increase public access to information Extending community participation beyond individual projects to the policy level
An Efficiency Analysis of Defensive Tactics
Get PDFFor thirty five years, courts and scholars have divided over the effects of defensive tactics in the market for corporate control. Strong defensive tactics locate authority to accept a hostile bid in the target’s board. The board can bargain for a higher takeover price than uncoordinated shareholders could realize but high takeover prices may reduce shareholder returns by reducing the likelihood of receiving a bid. The Delaware Courts themselves disagree. The Delaware Chancery Court would locate ultimate decision authority in the target’s shareholders, while the Supreme Court, by permitting strong defensive tactics, allocates extensive power to the target’s board. Though the Supreme Court’s view settles the legal issue in Delaware for now, the normative debate among scholars and decision-makers regarding whether the shareholders or the board should decide remains unresolved. The Delaware courts ask whether defensive tactics maximize target shareholder welfare: the shareholders’ expected return from acquisitions. But the more important question concerns social welfare: do defensive tactics reduce efficiency in the market for corporate control? Empirical difficulties so far have prevented analysts from answering either the private or social welfare question rigorously. Regarding private welfare, the analyst cannot observe bids a target’s defensive tactics level deterred. Regarding public welfare, the analyst cannot observe how an otherwise identical market would behave under weak and then strong defensive tactics levels. We address the two empirical questions by creating a structural model that predicts how the market for corporate control performs under varying defensive tactics levels and then testing the model by simulating market performance. A simulation permits us to isolate the effect of different defensive tactics levels. It also permits us to solve for a target’s optimal tradeoff between the increased share of an acquisition’s gain strong defensive tactics can permit a target to capture and the reduced probability of receiving bids in consequence of the acquirer’s reduced gain. The simulated corporate control market performs poorly, making 15% fewer acquisitions under strong defensive tactics than under weak defensive tactics. Target boards, however, apparently have been faithful fiduciaries for their shareholders, choosing defensive tactics levels that optimize the tradeoff between bid frequency and bid returns. On the other hand, we show, the privately optimal target defensive tactics level greatly exceeds the socially efficient level. Finally, we suggest that some firms’ recent efforts further to strengthen defensive tactics, such as combining a staggered board with a poison pill, reduce both efficiency and target shareholder welfare. Our results do not support a call for an immediate regulatory response. Initially, we do not rigorously analyze other possible justifications for defensive tactics, such as that they encourage potential targets to take long-term projects that the market may undervalue. Also, simulations raise an external validity question: do the researcher’s assumed simulation parameters capture real world patterns? We argue that our parameters do well on this measure, but a simulated market cannot perfectly capture real world behavior. On the other hand, the magnitude of our results and their consistency with theoretical predictions strongly support our central claim: today’s market for corporate control is so unlikely to maximize the number of value increasing acquisitions that scholars, regulators and courts should revisit the defensive tactics debate
Legislation: Interpreting and Drafting Statutes, in Theory and Practice
No full textThis casebook serves courses in legislation, statutory interpretation, and legislation & regulation — the processes of enacting, implementing, and interpreting our nation’s laws. While most casebooks present these issues principally through judicial opinions construing statutes, this casebook trains students’ focus on the statutes themselves. Extensive statutory excerpts precede most judicial opinions, and students are directed to work their way through the text on its own terms before grappling with judicial readings. Later chapters offer case studies on not only the statutory text but also, where relevant, the statute’s legislative history, and agency or executive branch interpretations rendered in the form of rules, guidance, or opinion letters. These case studies enhance understanding of how potential interpretations or applications narrow over the course of the interpretive process until a prevailing view emerges, often as a result of an accretion of judicial (and sometimes administrative) decisions interpreting the text over time and as applied to new and evolving problems. To do so, the casebook includes numerous recent decisions from the 2018 and 2019 Supreme Court terms, including Babb v. Wilkie (2020), Barr v. Am. Assoc. of Pol. Consultants (2020); Bostock v. Clayton Cty. (2020), New Prime v. Oliveira (2019), and U.S. Forest Serv. v. Cowpasture River Preserv. Assoc. (2020).https://scholarship.law.columbia.edu/books/1380/thumbnail.jp
The Healthcare System and Pandemics: Where Is the Market Failure?
Get PDFBarak D. Richman and Steven L. Schwarcz argue that healthcare providers played a central – and failing – role in stemming the fallout from the COVID-19 pandemic. Analogizing to the financial crisis of 2008, they view our healthcare system as a collection of providers, each maximizing returns to its own stakeholders in a laissez-faire regulatory environment that ignored the essential interconnectedness of providers. Because neither hospitals nor regulators were attuned to this interconnectedness, our healthcare system was unprepared for the pandemic, resulting in a reduced standard of care. Just as Dodd-Frank and related legislation view financial institutions as part of a larger, interconnected system that must be regulated to minimize exposure to and build robustness against shocks, so too must federal regulators approach our healthcare providers as a “system” that can work as a collective to mitigate the fallout from shocks
Clinicians Reflect on COVID-19: Lessons Learned and Looking Beyond
Get PDFAs a result of the unprecedented COVID-19 pandemic, clinical faculty had to abruptly adapt their clinical teaching and case supervision practices to adjust to the myriad restrictions brought on by the pandemic. This brought specialized challenges for clinicians who uniquely serve as both legal practitioners and law teachers in the law school setting. With little support and guidance, clinicians tackled never before seen difficulties in the uncharted waters of running a clinical law practice during a pandemic.
In this report, we review the responses of 220 clinicians to survey questions relating to how law clinics and clinicians were treated by their institutions as they navigated these changes. Were clinical courses treated differently than other courses? Were clinical faculty treated differently than other faculty? Were some clinical courses treated differently than others? Did clinical faculty and staff experience pressure by their institutions to teach in-person or hybrid courses?
In addition to summarizing the findings to these questions, this report examines the disparate impact of the COVID-19 pandemic on clinicians and sheds light on some of the distinct challenges they faced. The report concludes with a list of recommended actions that law schools may take to equip themselves to provide appropriate support for clinical faculty during inevitable future emergencies, emphasizing the importance of autonomy and discretion for clinicians; specialized attention for diverse and vulnerable clinicians; and the very serious ethical and legal obligations of clinical law practices
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No full textPhoto of Olatunde C.A. Johnson, Jerome B. Sherman Professor of Law at Columbia Law School.https://scholarship.law.columbia.edu/defending_the_planet_podcast/1020/thumbnail.jp
Annual Hudson Medal Discussion
Get PDFWelcome everyone to the 2021 Hudson Medal Presentation. The Manley O. Hudson Medal, the Society’s highest honor, has been awarded since 1959 to a distinguished person of American or other nationality for outstanding contributions to scholarship and achievement in international law. The medal has been conferred on many luminaries, including Rosalyn Higgins, Tom Franck, Michael Reisman, Eli Lauterpacht, John Jackson, Bruno Simma, Peter Trooboff, and Stephen Breyer.
I would like to thank Paul Reichler, Larry Martin, and ASIL Law Firm Leadership Circle Partner Foley Hoag LLP, for sponsoring this program—their eighth year of continuous sponsorship
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No full textLine art image with photos of Michael. W. Doyle and Ama Francis.https://scholarship.law.columbia.edu/defending_the_planet_podcast/1016/thumbnail.jp
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No full textLine art image of Talia Gillis.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1028/thumbnail.jp
Emerging State-Level Environmental Justice Laws
Get PDFEnvironmental justice (EJ) has grown in prominence in the political discourse in the last several years While most of the attention has gone to federal actions, several states have just adopted their own laws to advance EJ.
The basic idea behind EJ is that disadvantaged communities should not be disproportionately exposed to environmental hazards, that these communities should have a say in the actions that affect their environment, and that the environmental laws should be vigorously enforced there