David Hoffman, professor of law at the University of Pennsylvania, and Cathy Hwang, professor of law at the University of Virginia, join the Business Scholarship Podcast to discuss their essay The Social Cost of Contract. In their essay, Hoffman and Hwang examine when unexpected changes would cause contracts, if performed, to produce intolerable public costs, such as when epidemics and pandemics render contracts too dangerous to perform. Hoffman and Hwang then apply a contract-law anti-canon to predict how courts would enforce such contracts and how parties should renegotiate under the shadow of courts’ likely enforcement behavior.
Afra Afsharipour, professor of law at UC Davis, joins the Business Scholarship Podcast to discuss her essay Bias, Identity and M&A. In this essay, Afsharipour considers the non-value maximizing behavioral biases that can influence M&A activity, with a particular focus on senior management and a board’s ability to monitor senior management in the deal process. As part of this discussion, Afsharipour reviews recent empirical research on the relationship between management identity and M&A behavior.
Eldar Maksymov, assistant professor at Arizona State University W.P. Carey School of Business, and Matthew Ege, assistant professor at Texas A&M University Mays Business School, join the Business Scholarship Podcast to discuss their paper The Revival of Large Consulting Practices at the Big 4 and Audit Quality. In their paper, Maksymov, Ege, and their co-authors Dain Donelson and Andy Imdieke, use a multi-method approach to assess whether mergers and acquisitions of consulting firms by audit firms have positive or negative effects on the quality of audits conducted by the acquiring audit firms.
Aisha Saad, research scholar in law and Bartlett Research Fellow at Yale Law School, joins the Business Scholarship Podcast to discuss her recent article The Corporate Waqf in Law and Practice. In this article, Saad discusses the share waqf as a contemporary form of the waqf, a trust-like entity in Islamic law used for carrying out charitable purposes. Unlike waqfs that hold real estate or cash, share wafs hold significant, even controlling, stakes in firms. In offering case studies of corporate waqfs in Turkey, India, and Malaysia, Saad draws comparisons to northern European foundations. Together, these two institutions challenge agency-cost theory and U.S. concepts of corporate governance.
Aditi Bagchi, professor of law at Fordham University, joins the Business Scholarship Podcast to discuss her recent essay Risk Averse Contract Interpretation. In this essay, Bagchi argues that boilerplate does not require its own doctrine of contract interpretation, but rather it should incorporate external references in an approach that defies both interpretive contextualism and formalism.
Blair Bullock, visiting assistant professor of law at Tulane University, joins the Business Scholarship Podcast to discuss her forthcoming article Uncovering Harassment Retaliation. In this article, Bullock identifies gaps in employment law’s protection of workers who report workplace harassment. Bullock then provides novel empirical results showing that reporting harassment by a supervisor increases the probability that a worker also reports retaliation. She closes the article with a call to close gaps in retaliation coverage that could enable employers to take action against those who report harassment.
Benjamin Edwards, associate professor of law at the University of Nevada, Las Vegas, joins the Business Scholarship Podcast to discuss his forthcoming article Adversarial Failure. In this article, Edwards examines the expungement process used by brokers to secure removal of customer complaints from their public records. He questions whether this process is sufficiently adversarial to protect the interests of the investing public and state regulators and offers recommendations for reform.
Anat Alon-Beck, assistant professor of law at Case Western Reserve University, joins the Business Scholarship Podcast to discuss her essay Times They Are a-Changin’: When Tech Employees Revolt!. In this essay, Alon-Beck reviews recent activism by employees in the tech industry along with responses from firms’ leadership. In doing so, she uses employee activism as a frame for investigating the significance of human capital in the shareholder-versus-stakeholder debate.
Donna Nagy, professor of business law at Indiana University Bloomington’s Maurer School of Law, joins the Business Scholarship Podcast to discuss her essay Chiarella v. United States and its Indelible Impact on Insider Trading Law. In this essay, Nagy presents an original oral history of the first insider-trading criminal prosecution in the United States. In providing this history, Nagy traces the central role of lawyers and lawyering in the development of Rule 10b-5 theory and practice.
Andrew Baker, academic fellow at Stanford University’s Rock Center for Corporate Governance and a PhD candidate at Stanford’s Graduate School of Business, joins the Business Scholarship Podcast to discuss his forthcoming article Machine Learning and Predicted Returns for Event Studies in Securities Litigation. In this article, Baker and co-author Jonah Gelbach identify limitations on single-firm event studies in securities litigation and offer methods to improve their accuracy and consistency across experts.
Andrew Verstein, professor of law at UCLA, joins the Business Scholarship Podcast to discuss his forthcoming article Mixed Motives Insider Trading. In this article, Verstein observes that individuals often have proper and improper motivations to trade securities (e.g., needing cash for a child’s tuition while being in possession of material non-public information about bad financial results), which complicates liability analysis for insider trading. To resolve that complication, he proposes a mixed-motives approach that balances the need to hold illicit traders accountable with the need to permit labor-intense market research.
Saule Omarova, professor of law at Cornell University, joins the Business Scholarship Podcast to discuss her proposal for a National Investment Authority (NIA), which she introduced in her article Private Wealth and Public Goods: A Case for a National Investment Authority and her white paper Why We Need a National Investment Authority. In these papers, Omarova discusses the potential for an NIA to be a long-term investing complement to the Federal Reserve’s monetary role and the Treasury’s fiscal role. In particular, she explains how an NIA could have mitigated the Covid-19 crisis and how it can help the nation navigate future crises.
Yonathan Arbel, assistant professor of law at the University of Alabama, joins the Business Scholarship Podcast to discuss his forthcoming article Payday. In this article, Arbel asks why workers wait weeks to receive their earned wages and offers an historical and structural account for the rise of the modern payday. He explains why the payday has the perverse effect of making workers short-term creditors to their employers. To avoid this effect, Arbel discusses means for transitioning from the payday to daily pay.
Miriam Baer, professor of law at Brooklyn Law School, joins the Business Scholarship Podcast to discuss her forthcoming article Compliance Elites. In this article, Baer evaluates the tendency of firms to hire “elite” chief compliance officers (CCOs) who have had successful prior careers in private law firms and government enforcement agencies. Although this practice does potentially signal a firm’s commitment to its compliance function, Baer considers the risk that elite CCOs who have always been high performers may have “performance blind spots.” These blind spots, in turn, could reduce elite CCOs’ ability to assess whether performance results reflect, or performance goals encourage, fraud or other misconduct.
Mihailis Diamantis, associate professor of law at the University of Iowa, joins the Business Scholarship Podcast to discuss his forthcoming article The Corporate Insanity Defense. In this article, Diamantis complicates the respondeat superior doctrine of corporate criminal liability and considers whether a doctrine from individual prosecution–the insanity defense–could support more suitable responses to corporate crime and corporate-crime prevention.
Yerv Melkonyan, a student at Columbia Law School, joins the Business Scholarship Podcast to discuss his forthcoming note Regulation Best Interest and the State – Agency Conflict. In this note, Melkonyan considers the potential for conflicts between the SEC’s new standard for broker-dealer conduct and standards adopted by the states, including whether and, if so, to what degree, state standards have been preempted by Regulation BI.
Ann Eisenberg, assistant professor of law at the University of South Carolina, joins the Business Scholarship Podcast to discuss her forthcoming article Economic Regulation and Rural America. In this article, Eisenberg identifies a cycle of deregulation as leading to a decline in rural infrastructure and amenities. She explains, though, that rural America still has much to offer the nation, which recommends policy interventions to overcome rural diseconomies of scale.
Faith Stevelman, professor of law at New York Law School, joins the Business Scholarship Podcast to discuss her forthcoming article Boards in Information Governance. In this article, Stevelman and co-author Sarah Haan explain why the paradigm of the “monitoring” board is challenged by secular economic and technological trends. In its place, they identify an emerging paradigm, “information governance,” in which boards focus on the coordination and strategic management of information.
Megan Shaner, professor of law at the University of Oklahoma, joins the Business Scholarship Podcast to discuss her article The Corporate Chameleon. In this article, Shaner identifies the conceptual difficulty of identifying with certainty just who a corporation’s “officers” are. In response to this difficulty, she proposes a prototype-centered definition of “officer” to aid courts, firms, and potential officers in making that assessment.
Alexander Platt, Climenko Fellow and lecturer on law at Harvard Law School, joins the Business Scholarship Podcast to discuss his forthcoming article Gatekeeping in the Dark: SEC Control over Private Securities Litigation Revisited. In this article, Platt considers the potential for SEC enforcement actions to catalyze “piggyback” litigation by private plaintiffs. To mitigate the potential for nonoptimal combinations of public plus private enforcement, he calls on the SEC to use its existing authority to account for potential “piggyback” effects in its own enforcement activities.
Brian Frye, associate professor of law at the University of Kentucky, joins the Business Scholarship Podcast to discuss his forthcoming article Against Deaccessioning Rules. In this article, Frye questions the bases for professional ethical rules that prohibit charitable art museums from selling works of art. Going further, as a matter of corporate governance, he explores situations in which museum directors may have a fiduciary duty to sell art, especially if doing so means the difference for the institution’s survival.
Hilary Allen, associate professor of law at American University, joins the Business Scholarship Podcast to discuss her essay Experimental Strategies for Regulating Fintech. In this essay, Allen reviews the challenges of regulating financial innovation and proposes that to keep up, agencies must themselves innovate and adopt new technologies to support their regulatory functions, a concept she dubs “SupTech.”
David Hoffman, professor of law at the University of Pennsylvania, joins the Business Scholarship Podcast to discuss his forthcoming article Transactional Scripts in Contract Stacks. In this article, Hoffman and co-author Shaanan Coheny take a critical view of “self-executing” contractual scripts, which they describe as still susceptible to long-standing contract problems and doctrines.
Nakita Cuttino, visiting assistant professor of law at Duke University, joins the Business Scholarship Podcast to discuss her forthcoming article The Rise of ‘Fringetech’: Regulatory Risks in Early Wage Access. In this article, Cuttino evaluates and considers regulatory challenges related to early-wage-access programs, a new generation of tech-enabled financial services targeted at low-income workers.