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After Abu Dhabi: Restoring Integrity and Accountability in Formula 1
Get PDFBy any metric, Sir Lewis Hamilton is one of the greatest drivers in Formula 1 history. With seven World Championship titles, 103 race victories, 104 pole positions, and 197 podiums under his belt to date, he continues to perform after nearly two decades at the pinnacle of motorsport. For many fans, the exciting aspect of a sport comes from the spectacle of competition, where regular people can watch an elite group of athletes fight for the title under a set of strict guidelines that are designed to promote fairness and offer a chance for any competitor to win. This veneer of a level playing field is shattered, however, when the very people put in charge to ensure accountability are the ones who contravene the established rules. Formula 1, with its flashy cars and highspeed racing, is no stranger to excitement and controversies. But the 2021 season brought to light certain aspects of the sport’s regulations and governance structure that many fans were unaware of, but which sit at the heart of the sport.
The 2021 Abu Dhabi Grand Prix ended the 2021 Formula One World Championship in a dramatic and controversial fashion. Mercedes’ Lewis Hamilton and Red Bull’s Max Verstappen went into the final round with an equal number of points scored for the World Drivers’ Championship. The race was decided in the final few laps after Williams’ Nicholas Latifi crashed into the barriers with five laps remaining. After the safety car was deployed, Verstappen pitted for a fresh set of soft tyres, while Hamilton stayed out to maintain track position. On the second-to-last lap, Race Director Michael Masi directed only the five lapped cars between Verstappen and Hamilton to unlap themselves, in direct contravention of established Fédération Internationale de l'Automobile (FIA) rules. On the final lap, the green flag was deployed and the race resumed; Verstappen overtook Hamilton on his fresher tyres and maintained the lead, going on to win the Grand Prix and consequently the World Drivers’ Championship. Mercedes initially filed protests for breach of sporting regulations, but eventually withdrew them, citing a loss of faith in racing and that what happened in Abu Dhabi was "not right."
This Note will clarify the problems with the current self-governing system utilized by FIA by examining the level of external versus internal decision-making and accountability systems, including the current judicial remedies offered by FIA. I will specifically examine the substantive discretion accorded to the Race Director and stewards to dictate the events of each Grand Prix, and what avenues are available to drivers and teams when a dispute arises that involves actions by the stewards. Namely, I will address the inadequacies of an organization attempting to police itself using its own appeals system. I will compare the governing structure and dispute resolution mechanisms used by FIA with the structures used by Major League Baseball (MLB) and the Fédération Internationale de Football Association (FIFA). I will then offer three potential methods of introducing external accountability to FIA—the Court of Arbitration for Sport (CAS) arbitration, MLB arbitration, or civil justice—and ultimately recommend CAS arbitration to FIA for adoption
TRANSACTION-SPECIFIC TAX REFORM IN THREE STEPS: THE CASE OF CONSTRUCTIVE OWNERSHIP
Get PDF Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a multi-billion dollar litigation is pending about this rule.
This Article proposes a three-step approach. First, when faced with a new type of tax planning, policymakers should decide whether a response is really necessary. How harmful is the transaction? How feasible is it to target this transaction without also burdening “good” transactions, which don’t involve the same abuse? This first phase determines what we call “the normative presumption” about the transaction.
Second, Congress should define which transactions are potentially problematic. An “initial filter” should exempt transactions that clearly don’t pose the relevant concern.
Third, once a transaction is deemed to be potentially problematic, a sophisticated test is needed to check whether it actually is. Admittedly, a sophisticated test is costly to administer. This is why initial filters are needed to limit how often it is used.
Along with proposing this three-part framework, this Article offers a novel critique of a sophisticated test the government has begun using: a “delta” test, which measures how closely investments track each other. Although delta is often considered the gold standard, we show how easy it is to manipulate. The trick is to add contingencies (e.g., so the investment terminates when the price reaches a specified level). To head off this gaming, we recommend an alternative test that focuses on value instead of on changes in value–and, more generally, on enduring features instead of temporary quirks
Independence Reconceived
Get PDFWhat makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing at the job they were championed to do.
This Article addresses this puzzling tension, offering a novel theoretical and practical reframing of the decades-old discourse around independent directors. The historical focus on the classical managerial agency costs paradigm emphasized that directors who lack ties to the management team can prevent managerial slack or value extraction. However, this approach overlooks the critical role directors also have in curbing managerial overzealousness. In today’s governance ecosystem, directors are not only tasked with preventing managerial slack. They are increasingly tasked with preventing managerial overreach and misconduct even when such overreach or misconduct is compatible with promoting shareholder value. This has important theoretical and practical implications.
This Article makes two key contributions to the literature. First, it reframes the question of what makes directors independent by supplementing the focus on agency costs as the driver for independence. By identifying a need to prevent boards from rubber-stamping managerial actions—even those taken in good faith—this Article suggests that a simple lack of ties to management fails as a litmus test for independence. Second, by reconceiving independence, this Article also provides tangible credence to the value of diversity on boards, the value and perils of hedge fund activism, and to the emerging discourse regarding ESG and stakeholderism
The Propriety and Inevitability of Netting in Antitrust Class Actions
Get PDFHow to define “antitrust injury” is an issue that has been the source of much debate among judges, lawyers, and academics alike. Specifically, a disagreement exists as to whether participation in a single transaction, which a defendant has allegedly tainted via anticompetitive behavior, is sufficient to constitute antitrust injury. Complicating this area of jurisprudential and doctrinal uncertainty are cases in which a plaintiff who has alleged injury as a result of anticompetitive conduct later reaped offsetting gains resulting from that very same conduct. The disagreements regarding the role of these net beneficiaries, and the netting process necessary to identify them, in antitrust suits implicate matters that extend far beyond legal theory. This Note outlines the multitude of ways in which the foregoing consequences manifest. It then highlights the propriety of a contextual approach in which courts are more willing to engage in nuanced and substantive class certification analyses that balance the interests of the litigants and the goals of the antitrust laws. The Note uses financial markets, and variations among the instruments therein, as a specific instantiation of these principles and a context in which a nuanced approach is especially compelling. It concludes by demonstrating that, regardless of whether a court incorporates netting into its definition of antitrust injury, it will have to contend with netting principles during the class–certification process
Litigating the Fix: A Legal Overview: Taylor M. Owings, William H. Rooney, Adriana Morton, Sarah Zhang
Get PDFWhen a proposed merger or acquisition draws the scrutiny of the U.S. antitrust agencies (the Department of Justice or Federal Trade Commission), parties sometimes propose divestitures targeted to address the competitive concerns. If the proposed divestitures are deemed unsatisfactory by the reviewing agency, the parties may propose them in defense of the transaction in court as an effectively modified transaction. That process is known as “litigating the fix.” The 2023 William Howard Taft Lecture, sponsored by the Antitrust Law Section of the New York State Bar Association in collaboration with the Columbia Business Law Review on November 29th, 2023, addressed the proper legal standard that courts should apply when evaluating such “fixed” transactions. This Article, authored by the Moderators of the Lecture, summarizes the regulatory structure, enforcement perspectives, and developing law relating to “litigating the fix” as a foundation for the following articles on the subject by the 2023 Taft Co-Lecturers, Mr. Daniel Haar and Ms. Sara Razi
“Out of Love for You”: Orienting Rūs Expressions of Emotion in Arabic Geography
No full textThis article approaches gender and power through the study of emotion as a means of refreshing and updating the study of Rūs gender using Arabic geographical sources. Considering Arabic geographical and historical sources on the Rūs that deal with the concept of funerary sacrifice, in particular those that posit the possibility of male as well as female sacrificial victims, I examine the conditions attached to the practice of sacrificing men in these sources. I do so primarily by focusing on the semantic usages of ḥubb (love) as it relates to the Rūs, exploring the potential for wider emotional exploration within geographical discussions of the Rūs and in the context of their use by researchers today
Muḥammad b. Khalaf Wakīʿ (m. 306/918), ou le désamour de Bagdad
No full textThis article provides an overview of the life and work of a historian largely overlooked by contemporary historiography, Muhammad b. Khalaf al-Ḍabbī, known as Wakīʿ (d. 306/918). This Baghdadian scholar and qadi authored several works in various fields, only one of which has come down to us in a single manuscript: the Akhbār al-quḍāt, one of the earliest sources on the history of Islamic judgeship. Wakīʿ received fierce criticism from his fellow scholars and their successors, before most of his work fell into oblivion. After tracing his training and career, I examine the author’s views about Baghdad. The marginal role he assigns to the Abbasid capital, in connection with the miḥna of the mid-third/ninth century, suggests that this period of inquisition traumatized historians who came from scholarly backgrounds, and had a profound impact on Islamic historiography
The Documentary Depth of Hadith Transmission: Audition Attendance Lists
No full textThe transmission of hadith prompted substantial documentation and subsequent archiving. This article presents a recently rediscovered type of document belonging to this paper trail: audition attendance lists (awrāq al-samāʿ). Preceding the better-known audition certificate (samāʿ), an audition attendance list was sometimes used in the transmission of particularly long books in order to keep track of the attendance of sometimes hundreds of participants in audition sessions. Here we concentrate on one audition attendance list produced in the ninth/fifteenth century in Cairo for a transmission of the most famous hadith collection, the Ṣaḥīḥ al-Bukhārī. We introduce this kind of document, propose a reading of our particular sample, and discuss certain functions of audition attendance lists. We argue that these lists reveal a hitherto unknown depth in the documentary machinery of textual transmission