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Deal Breakage in Domestic and Cross-Border Mergers
Get PDFThis Article presents a newly constructed mergers and acquisitions (M&A) data set that can support detailed analysis of deal outcomes, including deal breakage. The main novelty of the data set is a detailed classification scheme for characterizing deal outcomes, using information drawn from public announcements and news reports. The data set also includes a number of variables, hand gathered from press releases and merger agreements, that are unavailable in existing data sets in reliable form, or at all. The data set consists of all definitive, signed M&A transactions involving US public company targets with a deal value of at least $1 billion from 1996 to 2018. The data set excludes negotiations, hostile bids, and unsolicited offers not resulting in a definitive transaction, which cannot be compared apples to apples with deals involving definitive agreements
A Case for Zoning
Get PDFDue to a remarkable convergence of criticisms from both the right and the left, zoning is under more sustained attack than at any time in the last seventy-five years. A consensus is building that zoning is what ails America. Simultaneously, the traditional justifications for zoning like separating incompatible uses, have become increasingly anachronistic in an age of mixed-use development and a desire for vibrant, dynamic places. This Article offers an updated defense of zoning, and in particular density regulations. Today, local governments deploy zon- ing not primarily to keep industry (or apartment buildings) out of residential neighborhoods, but to preserve community stability by regulating the pace of change, protect property values, and allocate the costs of development and growth. Zoning serves important but unappreciated pur- poses that must be included in the ledger when evaluating zoning reform
Adaptive Management for Ecosystem Services
Get PDFManaging the wildland-urban interface (WUI) is a widely-recognized land use problem plagued by a fractured geography of land parcels, management jurisdictions, and governance mandates and objectives. People who work in this field have suggested a variety of approaches to managing this interface, from informal governance to contracting to insurance. To date, however, none of these scholars has fully embraced the dynamism, uncertainty, and complexity of the WUI—that is, its status as a complex adaptive system. In focusing almost exclusively on the management of this interface to control wildfire, this scholarship largely ignores the fact that rampant wildfire is itself the product of incursions into important ecosystem services on both sides of the interface. In many cases, people tend to expand out towards the wildland not just for economics (cheaper housing) but also because of a suite of ecosystem services that are readily accessible at the interface, including aesthetics, a cleaner environment, and recreational opportunities. As the wildfire problem amply demonstrates, these settlers then become upset when other aspects of ecosystem function invade their lives, but those invasions include not just wildfire disasters but also more pernicious problems such as diseases, allergens, and wildlife. As such, development at the WUI can create a multifaceted desire to control several “undesirable” aspects of ecosystem function while simultaneously promoting the ecosystem services that residents desire, complicating land use management on both sides of a line that is itself often moving or transforming into a transition or buffer zone. To focus solely on wildfire, in other words, may oversimplify an increasingly complex management problem with significant policy implications. While we cannot and will not attempt to resolve all of these policy issues in this article, we do propose that adaptive management may provide a mechanism for dealing with the complexity of managing changing ecosystem functions and services at the WUI, even when—and perhaps especially because—the private lands and wildlands are usually subject to different land use regimes. We begin with an overview of adaptive management, then discuss the hard but common case of fractured landscape management. We then explore the potential for adaptive management to help negotiate this fractured landscape in a changing world, starting with the classic issue of wildfire management but also suggesting possible expansions
Jon Snow Lives! Glenn Dies! When Revealing Plot Twists Constitutes Copyright Infringement
Get PDFTV shows frequently rely on plot twists and cliff-hangers to keep viewers engaged and tuned-in for the next episode. To try to keep these plot twists secret, networks and program producers take steps to prevent people from revealing them before the episodes air. Recently, HBO and AMC, the networks that air Game of Thrones and The Walking Dead, respectively, have alleged that these so-called spoilers constitute copyright infringement. However, it does not appear that courts have considered whether posting such spoilers does, in fact, constitute infringement. This Article thus examines that question, which requires considering whether such spoilers constitute fair use of the copyrighted works, a defense to copyright infringement. This Article concludes that the revelation of plot twists before an episode airs by one with advance knowledge of the episode\u27s event likely constitutes copyright infringement. Significant here is the fact that the copyrighted works are not yet published, which weighs in the copyright holder\u27s favor when analyzing whether the spoilers constitute fair use. This provides copyright holders with a potential weapon to use against people who publish spoiler
The Effects of Myriad and Mayo on Molecular-Test Development in the United States and Europe: Interviews from the Frontline
Get PDFUS Supreme Court decisions in Mayo Collaborative Services v. Prometheus Laboratories and Association for Molecular Pathology v. Myriad Genetics Inc. caused US and European law on what is patentable subject matter to diverge significantly. Both cases related to molecular tests and changed decades of patent practice. Whether the decisions adversely affect the development of molecular tests in the United States and Europe has been a matter of much speculation but limited empirical investigation. This interview-based study has three main findings. First, Myriad and Mayo have negatively affected the development of some molecular tests. Notably, half of the US university technology-transfer offices interviewed decided not to develop tests, and many other organizations have found the legal uncertainty following the cases problematic. Second, small \u27atent-precarious organizations-those that rely heavily on patents for competitive advantages, such as technology-transfer offices-have been the most affected because patent protection is now often weaker and more difficult to obtain. Third, US-headquartered organizations have been more affected by 35 U.S.C. § 101 case law developments than European organizations, even though both types of organizations file for US patents. This Article refrains from advising law reform, however, because this study only focused on the adverse effects of the decisions and the positive effects remain unexamined
Conference on Best Practices for Managing Daubert Questions
Get PDFWhen we are talking about overstatement, is it so apparent that surely the jury could understand that? Or that on cross at trial, would the opposing counsel make that apparent so that the jury would deal with it on its own? Or is it overstatement, in ways that you normally see, in that it becomes opaque and therefore misleading to the jury and the jury would never be able to figure it out
Something is Not Always Better than Nothing: Problematizing Emerging Forms of Jus Ad Bellum Argument
Get PDFSince the adoption of the UN Charter, an unending debate concerning the permissible exceptions to the use of force prohibition has filled the pages of countless law reviews. The resulting legal regime, the jus ad bellum, has become increasingly strained as the international community faces new threats and encounters unforeseen scenarios. The post-war legal architecture is, so the debate goes, either insufficiently enabled to address contemporary challenges or consistently undermined by actors who seek exceptions to the strict limits placed upon state conduct. Debates regarding different instances when force is used exhibit a predictable pattern. Those that wish to limit the scope of the permissible use of force by states (minimalists) offer legal arguments that emphasize the importance of adhering to a strict reading of the UN Charter. Responding, those that support broadening the instances in which force is permissible(expansionists) provide moral arguments that stress the need to bridge the gap between what the law says and what is required to ensure a just international society. This Article identifies a significant shift in the structure of this debate. Following the controversial air strikes by US, French, and UK forces in Syria, proponents of an expansionist approach have moved from pursuing moral arguments about the necessity of armed intervention to embracing argumentative techniques that attempt to nullify minimalist apprehensions. The Article describes three forms of emergent expansionist arguments that have altered the traditional form of expansionist claims. Each instance suggests that good-faith expansionist efforts to ensure the legitimacy of the ad bellum regime are undermined by this emerging argumentative prioritization. The Article concludes by proposing reversion to a form of legal argument that accentuates moral implications and positions international law to maintain its relevancy by effectively contributing to the redress of many of the most consuming challenges that face a nonideal world
The Misuse of Tobin’s q
Get PDFIn recent years, scholars have addressed the most important topics in corporate law based on a flawed assumption: that the ratio of the market value of a corporation’s securities to their book value is a valid measure of the value of the corporation. The topics have included staggered boards, incorporation in Delaware, shareholder activism, dual-class share structures, share ownership, board diversity, and other significant aspects of corporate governance. We trace the history of this flawed assumption, and document how it emerged from Tobin’s q, a concept from an unrelated area in macroeconomics. We show that scholars have misused Tobin’s q, and we demonstrate empirically why scholarly assumptions about this ratio are flawed, particularly because book value is error prone, which generates problems involving aggregated assets, omitted variables, and statistical bias. Our message for corporate law scholars is straightforward: view with suspicion the large body of empirical law and finance scholarship that misuses Tobin’s q. We also offer a cautionary tale for researchers more broadly: the current replication crisis in the social sciences is potentially even more serious than has been imagined, and there are critical questions about not only replicability, but also about validity
The Evolving Federal Response to State Marijuana
Get PDFThe states have launched a revolution in marijuana policy, creating a wide gap between state and federal marijuana law. While nearly every state has legalized marijuana in at least some circumstances, federal law continues to ban the substance outright. Nonetheless, the federal response to state reforms has been anything but static during this revolution. This Essay, based on my Distinguished Speaker Lecture at Delaware Law School, examines how the federal response to state marijuana reforms has evolved over time, from War, to Partial Truce, and, next (possibly) to Capitulation. It also illuminates the ways in which this shifting federal response has alternately constrained and liberated states as they seek to regulate marijuana as they deem fit
The Price of Closing the Value Gap: How the Music Industry Hacked EU Copyright Reform
Get PDFSweeping changes are coming to copyright law in the European Union. Following four years of negotiations, the European Parliament in April 2019 approved the final text of the Digital Single Market (DSM) Directive. The new directive contains provisions for enhancing cross-border access to content available through digital subscription services, enabling new uses of copyrighted works for education and research, and, most controversially, clarifying the role of online services in the distribution of copyrighted works.
Article 17 of the DSM Directive is directed to the last of these goals. It was designed to address the so-called value gap-the music industry\u27s longstanding complaint that YouTube underpays music rights holders for streams of user-uploaded videos containing claimed copyrighted content. The text of the DSM Directive nowhere mentions YouTube, but anyone versed in the political economy of digital copyright knows that Article 17 was designed specifically to make YouTube pay. The important question in the wake of Article 17\u27s adoption is who else will pay-and in what ways