Bulletin

Bulletin

Bulletin

A Better Guard for the Henhouse: Should Creditors’ Committees Control Estate Litigation?

Introduction In October 2021, Senator Elizabeth Warren and several cosponsors introduced a revised version of the Stop Wall Street Looting Act. First introduced in 2019, the proposed legislation targets a range of perceived abuses by private equity firms ranging from the carried interest tax “loophole” to the lack of risk-retention requirements for securitized debt. Among […]

Bulletin

“Professional” Employers and the Transformation of Workplace Benefits

PDF Download

Workers in the United States depend on their employers for a host of benefits beyond wages and salary. From retirement benefits to health insurance, from student loan repayment to dependent-care spending plans, from disability benefits to family and medical leave, U.S. employers play a uniquely central role in the financial lives of their employees. Yet […]

Bulletin

Fair Pay and Safe Workplaces: Reassessing the Costs and Benefits in Government Contracting

PDF Download

When purchasing infrastructure, goods or services, the U.S. government has “to promote economy, efficiency and effectiveness.” Executive Order No. 13,673, issued by President Obama, expanded the requirement to encompass social sustainability: to promote economy and efficiency in procurement, the government was required to “contract with responsible sources who comply with labor laws.” The Fair Pay […]

Bulletin

Embedded Rules

PDF Download

Rules are rules and orders are orders, and never the twain shall meet. Generations of scholars and practitioners were taught back in law school that the Administrative Procedure Act (APA) divides the universe of agency action into two exclusive and exhaustive categories: “rulemaking,” which is used for promulgating “rules,” and “adjudication,” which is used for […]

Bulletin

Work and Employment for DACA Recipients

PDF Download

Introduction Deferred Action for Childhood Arrivals (DACA) has brought job opportunities and a brighter future to somewhere around 700,000 undocumented immigrant youth. Yet some contend that the employment authorization conferred upon DACA recipients renders the program illegal, because it converts it from a mere program of prosecutorial discretion into an ultra vires benefit. This essay […]

Bulletin

Time Enough for Counting: A Unicorn Retrospective

PDF Download

Abstract: Legal scholars worry that existing laws cannot adequately regulate large private companies (“unicorns”). At the same time, unicorns seem to be a key part of flourishing markets. Are unicorns a problem that requires solving or a sign that entrepreneurial finance is working? This essay addresses that question by tracking outcomes for the 32 startups […]

Bulletin

The Oversight Board’s Dormant Power to Review Facebook’s Algorithms

PDF Download

Abstract: This Essay argues that Facebook’s Oversight Board—an independent “Supreme Court” for Facebook, tasked with reviewing the platform’s content-moderation decisions—has the additional power to review Facebook’s algorithms. While much of the literature on the Board assumes that it does not have this power, the text and structure of the Board’s Charter clearly provide for oversight […]

Bulletin

The Non-Consequentialist Uses of Economic Analysis: A Comment on Dagan and Kreitner, Economic Analysis in Law

PDF Download

Lewis A. Kornhauser† Introduction Dagan and Kreitner have offered a rich and elegantly written discussion of the normative uses of economic analysis of law. For Dagan and Kreitner, a scholar uses economic analysis normatively either when she evaluates a legal rule or institution or when she makes policy recommendations. These two normative uses of economic […]

Bulletin

Response to Jennifer Arlen on The Essential Role of Empirical Analysis in Developing Law and Economics Theory

Tamar Kricheli Katz† Jennifer Arlen’s The Essential Role of Empirical Analysis in Developing Law and Economics Theory explores the relationship between law-and-economics theory and empirical analysis. The paper provides a rich discussion of empirical-analysis examples to inform normative theoretical understandings.  The paper focuses on empirical investigation of decision making, documenting the instances and conditions in […]

Bulletin

The Sustainable Corporate Governance Initiative in Europe

PDF Download

Mark Roe, Holger Spamann, Jesse Fried & Charles Wang† In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by Ernst & Young (EY). The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, […]

Bulletin

ESG Investing Under ERISA

PDF Download

Bernard S. Sharfman† Introduction The Department of Labor (“DOL”), through its administration of ERISA, has a critical role to play in the regulation of private “employee pension benefit plans.”. Most importantly, the DOL is tasked with enforcing the fiduciary duties of ERISA plan managers (trustees who retain investment and voting authority or “investment managers” who […]

Bulletin

Killing Innovation?: Antitrust Implications of Killer Acquisitions

PDF Download

Amy C. Madl† Killer instinct is a key business asset. Firms live and die by their strategic choices, and the desire to outcompete rivals colors most business decisions. While many firms strive to win market share on their merits, economists have recently identified an anti-competitive practice—killer acquisition—that enables incumbents to maintain market share by burying, […]

Bulletin

But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies

PDF Download

Susan Benesch† Private social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret.  To correct this, advocates have proposed that companies follow international human-rights law.  That law–by far the world’s best-known rules for governing […]

Bulletin

Applying International Human Rights Law for Use by Facebook

PDF Download

Michael Lwin† In recent years, social media platforms have been beset with hate speech, misinformation, disinformation, incitement of violence, and other content that cause real-world harm. Social media companies, focusing solely on profit-maximization and user-engagement, have been largely asleep at the wheel during outbreaks of violence in countries such as Myanmar, Sri Lanka, New Zealand, […]

Bulletin

Regulation and Innovation: Approaching Market Failure from Both Sides

PDF Download

Yafit Lev-Aretz† & Katherine J. Strandburg†† Regulation is often claimed to be the enemy of socially desirable innovation because of factors including innovation’s unpredictability and reulation’s compliance costs. In this essay, we bring two intellectual property scholars’ perspectives to bear on the question of regulation’s impact on innovation. We offer a novel, yet intuitive, analytical framework […]