16178 research outputs found
Sort by
The Lost Promise of Private Ordering
Get PDFThe agency problem is corporate law’s most enduring challenge: when corporate managers spend investors’ money, how does the law protect investors from reckless management? Scholars of law, finance, and accounting have suggested that in one corner of corporate law—corporate debt—a powerful tool exists to mitigate the agency problem. Specifically, through loan covenants, lenders can force borrowers to comply with lenders’ preferences, thereby mitigating the agency problem in lending.
But loan covenants are disappearing. Over the last decade, loan covenants have become fewer and skinnier, and so called “covenant-lite” or “cov-lite” loans have become dominant. If loan covenants do such a good job of mitigating agency costs, why have lenders willingly parted with them?
This Article attempts to unravel the puzzle of disappearing covenants, and makes three contributions to literatures in law, finance, and accounting. First, using an original, hand-collected, and hand-coded dataset of 7,638 loan agreements spanning the last decade, this Article shows for the first time that financial covenants—the focus of most existing research—are not the only covenants disappearing. Rather, governance covenants, such as those that might give lenders the right to engage with the borrower’s board of directors, are also disappearing. This Article coins the term “gov-lite” to describe loans that have few governance covenants and shows, for the first time, how prevalent gov-lite loans have become, even in ways that sometimes diverge from the covlite trend. Second, this Article draws from original interviews with lawyers working in corporate lending to explain the source and importance of this trend. This qualitative empirical evidence shows that regulation, the structure of the loan industry, and the rise of shadow banking have all contributed to the cov-lite and gov-lite trends. Finally, this Article explores the important theoretical and practical implications of the covlite and gov-lite trends. It discusses how the disappearance of covenants exacerbates the agency problem for lenders and shareholders, and how can stakeholders use covenants to advance social interests
New Histories of Gun Rights and Regulation: Essays on the Place of Guns in American Law and Society
No full textThe US Supreme Court recently held that the constitutionality of modern gun laws depends on whether they are consistent with this Nation\u27s historical tradition of firearm regulation. This landmark judicial decision, which cited an essay in this collection, made it ever more crucial to be clear about what the historical tradition entails. The scope of the Second Amendment\u27s right to keep and bear arms, and accordingly the government\u27s power to regulate firearms in the interest of public safety, hangs in the balance.Drawing on original research and sources not available to earlier Supreme Court opinions, New Histories of Gun Rights and Regulations brings together various methodological approaches and highlights issues in firearms law that have been previously underexamined. Its contributors, including distinguished historians, social scientists, and legal scholars, offer valuable new insight into the place of guns in American law and society. This groundbreaking new volume illuminates how history and constitutional law interact, suggesting concrete answers to some live legal controversies.A vital contribution to a vibrant debate, New Histories of Gun Rights and Regulations is an essential read for anyone seeking to understand the scope of the Second Amendment--a right whose breadth is frequently defined by its historical treatment.https://scholarship.law.duke.edu/faculty_books/1016/thumbnail.jp
The Meta Oversight Board\u27s Human Rights Future
No full textResponses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or to protect the company’s users. Much of this skepticism is based on a misplaced analogy between the Board and domestic courts. We argue, in contrast, that the core challenges and opportunities that the Oversight Board faces are similar to those confronted by international human rights tribunals. Analyzing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of its structure, decision-making, and potential future trajectory. Seen from this perspective, key design features that commentators have criticized are, in fact, strengths the Board is already using to expand its authority, develop human rights norms, and influence efforts to regulate social media platforms.
This Article is the first to examine the human rights origins of the Oversight Board, the similarities between the new body and international human rights tribunals, and how the Board is using human rights standards to pressure Meta to improve its content moderation policies and to inform ongoing efforts to regulate social media companies. We complement this analysis with a range of recommendations for the Board to become even more effective, as well as explore potential risks and challenges, including backlash, whitewashing, and negative spillover. Although a sanguine vision of the Board’s future is by no means assured, when viewed in light of the experience of international human rights tribunals, we conclude that the Board has the potential to serve as a meaningful check on Meta and to significantly advance the promotion and protection of human rights online
The Sustainable Corporation: A Legal and Business Centric Approach to ESG
No full textSustainability and ESG have become essential factors to doing business in the modern world. ESG\u27s objectives cover a broad spectrum of issues, such as reducing the emissions of carbon and other toxic wastes; human-rights abuses; and promoting and ensuring fair labor practices. ESG also addresses and prioritizes diversity and inclusion.
This practical and useful guide defines, explains, and supports the implementation of a business centric approach to ESG for the corporation. Written by practice leaders and lawyers, this guide identifies critical issues for investors, stakeholders, and counsel to fully understand the actions - and consequences - when it comes to implementing ESG policies. The creation of a more sustainable corporation will ultimately be less reliant on unsustainable practices and, with the support of its suppliers, will be more adept in responding to a rapidly changing world and marketplace.https://scholarship.law.duke.edu/justin_miller_awards_books/1125/thumbnail.jp
Norm Commandeering and the Tobacco Trust
Get PDFIn the early 1870s, Durham became a major center of tobacco marketing. Farmers brought their crops to auction warehouses, which then sold them to the town’s manufacturers. This was a process facilitated by a well-developed system of social norms. But the formation of the American Tobacco Company’s “tobacco trust” in the 1890s threatened that arrangement—buyers conspired to pay less per pound of tobacco, and warehousemen lost the ability to police buyers’ conduct. When farmers attempted to organize in response, geographic and social distance caused their efforts to fail. By the time federal courts dissolved the trust in 1911, the damage had already been done.
This Note’s historical analysis will be relevant for scholars of both informal ordering and competition law. For the former, it shows that some norm systems depend on the presence of competition. Informal ordering can, of course, also be a response to a lack of competition. But the possibility of collective action problems means that attempts to organize in reaction will often fail. For scholars of competition law, the possibility of norm commandeering provides a concrete example of how concentrated market power can affect economic and social dynamics
Startup Failure
Get PDFVenture-backed startups famously aim for a successful “exit” by going public or selling to another company through an acquisition deal and achieving financial return for all equity holders. A different path, however, is vastly more likely to occur—failure. Although high-risk innovative ventures fail at exceedingly high rates, no scholarly account systematically explains what happens to these startups at the end of their life cycle.
This Article provides a theory of startup failure: how law and culture have shaped a system for dealing with the large number of startups that cannot reach an exit that will produce a financial return for all participants. It makes three central contributions. First, the Article explains why bankruptcy law does not fit the needs of most distressed startups and highlights how their capital structures are indeed designed to avoid bankruptcy except in unusual circumstances. Second, and most critically, the Article reveals how dealing with failure through a variety of alternative means serves a vitally important role in sustaining the venture capital ecosystem. In particular, soft-landing acquisitions, acqui-hires, and assignments for the benefit of creditors allow entrepreneurs, investors, employees, and creditors to “fail with honor” and redeploy their talent and capital into other ventures. Third, the Article sheds light on rising challenges for dealing with startup failures amid evolving practices and regulatory agendas, with implications for facilitating efficient failure in corporate, antitrust, and insolvency law
The Permanent Court of International Justice in Global History
Get PDFThe Permanent Court of International Justice\u27s contributions often are overshadowed by the fact that it was the predecessor of the overwhelmingly important International Court of Justice. This article is the first to look at the Permanent Court\u27s possible contribution to global history in its own right. While the case-study method adopted in this article does not allow for the determination of causal linkages between acts of the Permanent Court and consequences in global history, it nevertheless provides compelling support for liberal institutionalism and the notion that global history has been influenced by actors other than states, even though states remain the main shapers of global history