Bulletin

Volume 38

Bulletin

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

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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 […]

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The Sustainable Corporate Governance Initiative in Europe

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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, […]

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ESG Investing Under ERISA

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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 […]

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Killing Innovation?: Antitrust Implications of Killer Acquisitions

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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, […]

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

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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 […]

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Applying International Human Rights Law for Use by Facebook

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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, […]

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Regulation and Innovation: Approaching Market Failure from Both Sides

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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 […]