Business Scholarship Podcast

Roy Shapira, associate professor at IDC Herzliya, joins the Business Scholarship Podcast to discuss his article A New Caremark Era: Causes and Consequences. Shapira observes that Delaware’s Caremark doctrine, which has long imposed compliance duties on boards without much opportunity for shareholders to bring related claims, has entered a new era in a recent quartet of cases. He predicts that this turn of Caremark claims surviving motions to dismiss is the result of parallel developments around shareholders’ Section 220 inspection rights. Shapira closes by highlighting the potential for a “new” Caremark to complement other compliance-enforcement mechanisms.

Cathy Hwang, professor of law at the University of Virginia, and Yaron Nili, assistant professor of law at the University of Wisconsin, join the Business Scholarship Podcast to discuss their article Cleaning Corporate Governance, which is co-authored with Jens Frankenreiter and Eric Talley. In this article the authors recreate a dataset of public-company charters on which numerous empirical studies have been based, finding a roughly 80% error rate in the prior data. The authors demonstrate the uses of their new dataset with a replication study of Corporate Governance and Equity Prices, a foundational work in empirical corporate governance.

The dataset and its underlying documents are freely available at publiccompanycharters.com.

Carliss Chatman, associate professor of law at Washington & Lee University, joins the Business Scholarship Podcast to discuss her article Corporate Family Matters. In this article Chatman observes that contemporary large businesses operate through entity networks. She explains that siloed entities within such “corporate families” could facilitate organizational misconduct. To address this problem, she proposes a state-law definition of corporate families applicable to materiality judgments, reporting obligations, and conflicts of interest.

Sadie Blanchard, associate professor of law at the University of Notre Dame, joins the Business Scholarship Podcast to discuss her article Contracts Without Courts or Clans: How Business Networks Govern Exchange. In this article Blanchard explains that under some conditions contracts can be formed and successfully carried out without enforcement by public courts or tight-knit social groups. She presents a case study of the reinsurance trade circa 1980 to demonstrate this point, which shows that the reinsurance industry long thrived on an international basis that did not require judicial or localized reputational enforcement.

Grant Hayden, professor of law at Southern Methodist University, and Matthew Bodie, professor of law at Saint Louis University, join the Business Scholarship Podcast to discuss their article Codetermination in Theory and Practice. In this article, Hayden and Bodie reexamine the literature on codetermination—the inclusion of workers in high-level corporate policymaking—and explain why it deserves a fresh look in an era of challenges to the shareholder-primacy model of corporate governance.

Dorothy Lund, assistant professor of law the University of Southern California, and Elizabeth Pollman, professor of law at the University of Pennsylvania, join the Business Scholarship Podcast to discuss their article The Corporate Governance Machine. In this article, Lund and Pollman identify the origins of the term “corporate governance” and explain corporate governance’s emergence as a shareholder-focused system supported by law, markets, and culture. This system, the authors find, has served to arrest the development of and innovations in corporate governance and law.

Elizabeth Tippett, associate professor of law at the University of Oregon, joins the Business Scholarship Podcast to discuss her article Enslaved Agents: Business Transactions Negotiated by Slaves in the Antebellum South. In this article, Tippett analyzes 18th- and 19th-century judicial decisions that spotlight the historical practice of enslaved workers serving as business agents to slaveholders. This analysis, she explains, sheds new light on the legal-economic history of slavery and the law of agency.

Edmund Schuster, associate professor of corporate law at the London School of Economics, joins the Business Scholarship Podcast to discuss his article Cloud Crypto Land. In this article, Schuster explains why enthusiasm around blockchain and smart-contract technologies must confront rule-of-law concerns that would make their application to new legal and economic use-cases doubtful. Instead, he argues, these technologies should not be expected to meaningfully expand outside the realm of cryptocurrency.

Michael Klausner, professor of business and law at Stanford University, joins the Business Scholarship Podcast to discuss his article A Sober Look at SPACs, which was written with co-authors Michael Ohlrogge and Emily Ruan. In this paper, Klausner and his co-authors conduct an empirical examination of special-purpose acquisition companies (SPACs), finding that in their sample period SPAC structures created $3.60 in dilution per $10 raised in SPACs’ initial public offerings. The authors explain how this result is partly driven by current U.S. securities regulation and recommend reforms to address differential regulatory treatment of SPACs and traditional IPOs.

Sarah Haan, professor of law at Washington & Lee University, joins the Business Scholarship Podcast to discuss her article Corporate Governance and the Feminization of Capital. In this legal history, Haan shows that in the first half of the twentieth century, women were a significant share of stockholders in the public markets and were a majority in some firms. She then connects this feminization of capital to early corporate theory and examines how gendered stereotypes of women shareholders influenced the rise of institutional investing.

Charlotte Haendler, a PhD student in finance at Boston College, and Rawley Heimer, an assistant professor of finance at Boston College, join the Business Scholarship Podcast to discuss their article The Financial Restitution Gap in Consumer Finance: Insights from Complaints Filed with the CFPB. In this paper, Haendler and Heimer use data from customer complaints submitted to the Consumer Financial Protection Bureau to examine how financial-services providers treat customers of different socioeconomic statuses. After finding racial and income gaps in the likelihood that complaints result in restitution, the authors examine potential mechanisms, including financial industry reaction to changing presidential administrations.

Charles McClure, assistant professor of accounting at the University of Chicago, joins the Business Scholarship Podcast to discuss his paper Disclosure Processing Costs and Market Feedback Around the World, which was written with co-authors Shawn Shi and Edward Watts. In this paper, McClure and his co-authors exploit international introductions of centralized electronic disclosure systems, like the SEC’s EDGAR database, to examine how disclosure technologies affect managers’ learning from securities prices and investors’ information processing.

Amanda Dixon, Madison Sherrill, and Hadar Tanne, students at Duke University School of Law, join the Business Scholarship Podcast to discuss their article Damages as a Function of Fault: Willful Breach in M&A Contracts, which was written with co-authors Theresa Arnold and Mitu Gulati. In this article, Dixon, Sherrill, and Tanne investigate why sophisticated parties incorporate the concept of willful non-performance into contracts despite the black-letter doctrine that contract law follows strict liability for breaches.

This article is the third by the Duke contracts group. Their prior papers are The Myth of Optimal Expectation Damages and ‘Lipstick on a Pig’: Specific Performance Clauses in Action.

Gregory Burke, a PhD student in accounting at Duke University, joins the Business Scholarship Podcast to discuss his paper SEC Rule 14a-8 Shareholder Proposals: No-Action Requests, Determinants, and the Role of SEC Staff. In this paper, Burke examines shareholder proposals submitted by firms to the SEC’s Division of Corporation Finance for no-action relief. He tests whether four determinants (legal characteristics, pressure, proposal attributes, and individual staff) are associated with higher probabilities of no-action relief being granted and finds that there are statistically significant associations for each.

Laura Coordes, associate professor of law at Arizona State University, joins the Business Scholarship Podcast to discuss her article Bespoke Bankruptcy. This article considers instances in which debtors require bankruptcy-like protections despite not fitting within the Bankruptcy Code’s existing chapters. Coordes offers examples of how Congress addresses these scenarios through “bespoke bankruptcy” provisions, which she concludes sometimes fill important needs even as they raise new concerns about the nature of bankruptcy law.

Emily Strauss, clinical professor of law at Duke University, joins the Business Scholarship Podcast to discuss her article Is Everything Securities Fraud?. In this article, Strauss analyzes the extent to which corporate harms to non-shareholders—such as victims of oil spills, tainted medicines, or defective automobiles—come to serve as the basis for securities litigation. Based on her findings, she concludes that this event-driven securities litigation could have deterrent effects but is likely a suboptimal mechanism for mitigating harms to non-shareholder victims of corporate misconduct.

Asaf Raz, a research fellow at the University of Pennsylvania Carey Law School, joins the Business Scholarship Podcast to discuss his article Mandatory Arbitration and the Boundaries of Corporate Law. In this article, Raz considers whether case developments point toward mandatory arbitration clauses being incorporated into corporate charters and bylaws, which he predicts would have a negative impact on corporate governance. He further examines whether a contractarian view of the corporation—which, under the Federal Arbitration Act, could justify such provisions—should hold or whether corporate law should be viewed as a distinct body of law.

Kish Parella, associate professor of law at Washington & Lee University, joins the Business Scholarship Podcast to discuss her works Improving Social Compliance in Supply Chains and Compliance as an Exchange of Legitimacy for Influence. In these works, Parella examines the legal institutions and reputational mechanisms that foster human-rights compliance by transnational enterprises, as well as how that compliance might be influenced by developments like the draft UN business-and-human-rights treaty.

Carlos Berdejó, professor of law at Loyola Law School, joins the Business Scholarship Podcast to discuss his article Financing Minority Entrepreneurship. In this article, Berdejó examines barriers faced by minority-owned businesses and frames information asymmetry as a cause of racial disparities in entrepreneurship. He also uses this framework in explaining why policy interventions designed to foster minority-owned businesses have failed to correct those disparities.

Anat Alon-Beck, assistant professor of law at Case Western Reserve University, joins the Business Scholarship Podcast to discuss her article Alternative Venture Capital: The New Unicorn Investors. In this article, Alon-Beck examines the emergence of “alternative” venture capitalists—including family offices, high-net-worth individuals, and sovereign-wealth funds—and how their participation in financing affects governance arrangements in high-growth unicorn startups.

Suneal Bedi, assistant professor of business law and ethics at Indiana University’s Kelley School of Business, and William Marra, investment manager at Validity Finance, LLC, join the Business Scholarship Podcast to discuss their article The Shadows of Litigation Finance. In their article, Bedi and Marra present a normative framework for analyzing litigation finance’s welfare effects, including its effects on pre-dispute contracting and commercial behavior.

January 4, 2021

A new presidential administration doesn’t come along every day. To explore what the Biden-Harris administration might hold when it comes to business regulation―or what panelists believe it should hold―the Business Scholarship Podcast’s second annual symposium is focused on Financial and Corporate Regulation in the Biden Administration.

The symposium comprises five episodes broken into the following panels. Across each panel, guests are invited to identify failures or missed opportunities of prior administrations, to predict the potential course of the Biden administration in key regulatory areas, and to offer advice to the incoming administration and the 117th Congress.

1. Banking & Financial Regulation
   • Gina-Gail Fletcher, Duke University School of Law
   • Christina Skinner, The Wharton School, University of Pennsylvania
   • Kurt Wolfe, Troutman Pepper Hamilton Sanders LLP

2. Investor Protection & Corporate Finance
   • Laura Posner, Cohen Milstein Sellers & Toll PLLC
   • Jennifer Schulp, Cato Institute
   • James Fallows Tierney, University of Nebraska College of Law

3. Consumer Protection & Finance
   • Christopher Odinet, University of Iowa College of Law
   • Niza Packin, Baruch College Zicklin School of Business
   • Spencer Williams, Golden Gate University School of Law

4. Corporate Power
   • Carliss Chatman, Washington & Lee University School of Law
   • Anthony Michael Kreis, Georgia State University College of Law
   • Barak Richman, Duke University School of Law

5. Enforcement & Policing
   • Miriam Baer, Brooklyn Law School
   • Jacob Elberg, Seton Hall University School of Law
   • Karen Woody, Washington & Lee University School of Law

Panels are moderated by Andrew Jennings, Stanford University School of Law. They are available on major podcast apps and at andrewkjennings.com/biden-symposium.

Felix Chang, professor of law at the University of Cincinnati, joins the Business Scholarship Podcast to discuss his article Ethnically Segmented Markets. In this article, Chang introduces the concept of ethnically segmented and misaligned markets (ESMs)–markets in which buyers and sellers are members of distinct ethnic communities–through a case study of the market for wigs and hair extensions. He observes that ESMs can be partly understood in terms of antitrust, and that they present challenges to antitrust doctrine and raise questions for interethnic equity and relations.

Yaron Nili, assistant professor of law at the University of Wisconsin, and Kobi Kastiel, assistant professor of law at Tel Aviv University, join the Business Scholarship Podcast to discuss their article The Giant Shadow of Corporate Gadflies. In this article Nili and Kastiel examine the work of a handful of retail investors who frequently submit shareholder proposals, a group they dub “corporate gadflies.” After presenting empirical findings on how gadflies influence corporate governance, Nili and Kastiel consider policy and regulatory implications for gadflies’ work.

Jenifer Varzaly, assistant professor of commercial and corporate law at Durham University, joins the Business Scholarship Podcast to discuss her article The Effectiveness of Disclosure Law Enforcement in Australia. In this article, Varzaly introduces novel datasets for disclosure-based public and private securities enforcement in Australia. In considering the joint effects of these enforcement modalities, she concludes that Australia has a moderately effective securities-enforcement system and identifies areas for improvement.