Introduction: Professor Randall Thomas’s Depolarizing and Neutral Approach to Shareholder Rights

Like Gaul, corporate law scholarship can be divided into three overflowing buckets: pro-manager, pro-shareholder, and empirical. We classify empirical scholarship as a separate category, in significant part because of Professor Randall Thomas. In the pre-Thomas era, much of the literature fell into the first two buckets, with empirical researchers deploying data collection and analysis to support their particular bent. Then Professor Thomas emerged as a distinctive empiricist. Throughout his career, he has published scores of path breaking studies while maintaining relative neutrality as to the normative implications. He does not deploy data and its analysis to advocate for particular positions, but instead maps the terrain in which policy can then be considered. Thus, Professor Thomas’s category of scholarship is the third way—a balanced approach to generating and assessing evidence, without a particular viewpoint. We focus here on two areas of empirical exploration of the shareholder franchise, shareholder rights to sue and vote, where Professor Thomas has contributed richly and without polemics—as a neutral umpire calling balls and strikes. We show how his work has helped depolarize the division between managerialists and shareholder rights advocates

The Unholy Trinity: Fat Tails, Tail Dependence, and Micro-Correlations

Recent events in the financial and insurance markets, as well as the looming challenges of a globally changing climate point to the need to re-think the ways in which we measure and manage catastrophic and dependent risks. Management can only be as good as our measurement tools. To that end, this paper outlines detection, measurement, and analysis strategies for fat-tailed risks, tail dependent risks, and risks characterized by micro-correlations. A simple model of insurance demand and supply is used to illustrate the difficulties in insuring risks characterized by these phenomena. Policy implications are discussed.risk, fat tails, tail dependence, micro-correlations, insurance, natural disasters

Revealing the Landscape of Privacy-Enhancing Technologies in the Context of Data Markets for the IoT: A Systematic Literature Review

IoT data markets in public and private institutions have become increasingly relevant in recent years because of their potential to improve data availability and unlock new business models. However, exchanging data in markets bears considerable challenges related to disclosing sensitive information. Despite considerable research focused on different aspects of privacy-enhancing data markets for the IoT, none of the solutions proposed so far seems to find a practical adoption. Thus, this study aims to organize the state-of-the-art solutions, analyze and scope the technologies that have been suggested in this context, and structure the remaining challenges to determine areas where future research is required. To accomplish this goal, we conducted a systematic literature review on privacy enhancement in data markets for the IoT, covering 50 publications dated up to July 2020, and provided updates with 24 publications dated up to May 2022. Our results indicate that most research in this area has emerged only recently, and no IoT data market architecture has established itself as canonical. Existing solutions frequently lack the required combination of anonymization and secure computation technologies. Furthermore, there is no consensus on the appropriate use of blockchain technology for IoT data markets and a low degree of leveraging existing libraries or reusing generic data market architectures. We also identified significant challenges remaining, such as the copy problem and the recursive enforcement problem that-while solutions have been suggested to some extent-are often not sufficiently addressed in proposed designs. We conclude that privacy-enhancing technologies need further improvements to positively impact data markets so that, ultimately, the value of data is preserved through data scarcity and users' privacy and businesses-critical information are protected.Comment: 49 pages, 17 figures, 11 table

Understanding the (IR)Relevance of Shareholder Votes on M&A Deals

Has corporate law and its bundles of fiduciary obligations become irrelevant? Over the last thirty years, the American public corporation has undergone a profound metamorphosis, transforming itself from a business with dispersed ownership to one whose ownership is highly concentrated in the hands of sophisticated financial institutions. Corporate law has not been immutable to these changes so that current doctrine now accords to a shareholder vote two effects: first, the vote satisfies a statutory mandate that shareholders approve a deal, and second and significantly, the vote insulates the transaction and its actors from any claim of misconduct incident the approved transaction. This article takes issue with the courts and commentators who have so elevated the impact of shareholder approval to insulate misconduct. We develop why it is not reasonable to believe that the shareholders’ competencies extend to adjudging managerial misconduct, why that conclusion is inconsistent with other modern corporate law developments, and why such shareholder ratification is likely both coerced and poorly considered. We also point out that the position of courts and commentators who pronounce the death of corporate fiduciary law is deeply qualified by the deep conflicts of interest institutional investors face when voting as well as the very real threat that today’s ecology that supports shareholder activism is likely to change so that the voice of the discontented shareholder will be at least more muted in the future. Finally, we provide strong empirical support based on a sample of 852 merger deals from 2000 to 2015 that there is a very large thumb on the scale that pushes all deals toward approval, regardless of any allegations of wrongdoing. We observe substantial ownership changes at target corporations, sometimes as high as 40 to 50% of their stock, from long-term investors to hedge funds upon the announcement of a deal and before the consummation of the transaction with a shareholder vote. This change reflects the merger arbitrageurs’ actions. We further show that this change in ownership has a positive and statistically significant impact on the likelihood of merger deals garnering the required shareholder approval. We conclude that the Delaware courts need to rethink their obsession with the shareholder vote, renounce the current doctrinal trends that are taking them in the wrong direction, and return to their historic role of evaluating whether directors have satisfied their fiduciary duties in M&A transactions

Governing the Anticommons in Aggregate Litigation

Following the September 11, 2001 terrorist attacks, more than ten thousand rescue and cleanup workers brought individual lawsuits against New York City for respiratory and other illnesses they developed after working in the ruins of the World Trade Center. After years of litigation, the parties put together a comprehensive settlement in 2010. The defendant agreed to pay a total of $625 million so long as 95$712.5 million.\u27 In other words, to get the last 5% of plaintiffs to sign on, the defendant was willing to pay a substantial premium-more than twice the per-claimant amount for the first 95%. But, because the plaintiffs could get only 95.1% of their ranks to participate by the deadline, they left up to $87.5 million on the table. Why did the plaintiffs fail to maximize the collective value of their claims? Looking to property theory, I argue, can help us understand. As this Article will explain, there is an anticommons problem in aggregate litigation

Is Innovation King at the Antitrust Agencies? The Intellectual Property Guidelines Five Years Later

The Microsoft antitrust case focused public attention on the role of antitrust enforcement in preserving the forces of innovation in high-technology markets. Traditionally, regulators focused on whether companies artificially hiked prices or reduced output. Now, they're increasingly likely to look first at whether corporate behavior aids or impedes innovation. In this paper, we examine whether innovation has displaced short-term price effects as the focus of antitrust enforcement by the Department of Justice and the Federal Trade Commission and, to the extent that it has, whether enforcement actions are any different as a result. We also ask whether enforcement actions in the area of intellectual property and innovation have been consistent with the 1995 DOJ/FTC Antitrust Guidelines for the Licensing of Intellectual Property [IP Guidelines]. Finally, we consider whether recent enforcement actions identify key areas in which additional guidance from the Agencies would be desirable. We address these questions first in merger cases and then in non-merger cases.

Internet Regulation and Consumer Welfare: Innovation, Speculation, and Cable Bundling

The goal of telecommunications policy has shifted from the control of natural monopoly to the promotion of competition. But the question remains how extensive and persistent the government\u27s regulatory role should be in the operation of communications markets. One might think that regulators could find the answer to this question in antitrust law. But antitrust has itself been torn between interventionist and laissez-faire tendencies. Over the past two decades, the dominant Chicago School approach to antitrust has focused on economic efficiency, a standard that has led to the abandonment or contraction of some categories of liability. More recently, however, post-Chicago theorists have suggested that the particular characteristics of the new economy, particularly the economics of networks, justify a more interventionist approach. As it happens, telecommunications lies at the heart of the new economy. Couching the inquiry in antitrust terms, therefore, does not resolve the critical policy issues. These issues have come to the fore in the dispute over regulation of broadband Internet access. The Internet is sometimes viewed as a world of laissez-faire, largely distinct from the established regime of telecommunications and mass media regulation. For historical and political reasons, the same standards of content and economic regulation that apply to other media have not been extended to Internet communications. But the contradictions that this dichotomy raises have been unavoidable in the broadband context. The question we address specifically is whether government should require open access. But this question is only one aspect of a larger issue: when should the government regulate competitive conduct in the new economy, which is characterized by extraordinary rates of innovation, modest capital requirements, economies of scale in production and consumption, and frequent entry and exit? This question has no simple answer