VOLUME 12 • ISSUE 2 • PRINT
SHOULD LABOR ABANDON ITS CAPITAL? A REPLY TO CRITICS
David H. Webber
Several recent works have sharply criticized public pension funds and labor union funds (“labor’s capital”). These critiques come from both the left and right. Leftists criticize labor’s capital for undermining worker interests by funding financialization and the growth of Wall Street. Laissez-faire conservatives argue that pension underfunding threatens taxpayers. The left calls for pensions to be replaced by a larger social security system. The libertarian right calls for them to be smashed and scattered into individually managed 401(k)s.
VOLUME 12 • ISSUE 2 • PRINT
WAGE WARS: THE BATTLE OVER HUMAN CAPITAL ACCOUNTING
Colleen Honigsberg and Shivaram Rajgopal
Over the past few decades, we have seen an explosion of so-called “human capital firms”—that is, firms that generate value due to the knowledge, skills, competencies, and attributes of their workforce. Yet, despite the value generated by employees, U.S. accounting principles provide virtually no information on firm labor. Barely fifteen percent of firms disclose information as basic as labor costs.
VOLUME 12 • ISSUE 2 • PRINT
DOES MANDATORY BOARD GENDER-BALANCING REDUCE FIRM VALUE?
B. Espen Eckbo, Knut Nygaard, and Karin S. Thornburn
Mandated board gender balancing is a social-policy instrument, which in principle is unrelated to concerns about firms’ economic performance. Nonetheless, imposing such a policy may have unintended consequences (positive or negative) for firm value, which is important for all of the firm’s constituencies—not only shareholders. In this paper, we highlight and extend our recent research on the economic effects of Norway’s pioneering gender-quota law, which forced board gender balancing of all domestic public limited corporations by early 2008. This research subsumes and econometrically corrects controversial conclusions of extant studies. Most important, our research shows that quota-induced changes in market valuations and operating performance were both ec- onomically and statistically negligible. Furthermore, we show that corporate conversions to a legal form that prevents the firm from raising public equity capital—but does not require gender balancing—were unrelated to the company’s pre-quota female director shortfall. We also present new evidence that boards managed to preserve directors’ large-firm CEO experience without in- creasing director busyness. We conclude that the supply of qualified female director candidates was sufficiently large to avoid board concentration and negative economic effects of the quota restriction.
VOLUME 10 • ONLINE
HUMAN RIGHTS RHETORIC IN GLOBAL INTERNET GOVERNANCE: NEW ICANN BYLAW ON HUMAN RIGHTS
Monika Zalnieriute1Fellow and Lead of “Technologies and Rule of Law” Research Stream, Allens Hub for Technology, Law and Innovation, Faculty of Law, UNSW Sydney, Australia. Justine Nolan, Nicolas Suzor, Angela Daly, Robin Gross, Stephanie Perrin, Felicity Bell and Leah Grolman for their insightful comments on earlier drafts. I am also grateful to ICANN’s Non-Commercial Users Constiuency, in particular Milton Mueller, Farzaneh Badiei, Collin Kurre, Stefania Milan, Niels ten Oever, Vidushi Marda, Aarti Bhavana, Kathy Kleiman and Konstantinos Komaitis, who have worked hard to advocate and promote human rights at ICANN.
As part of a significant institutional reform in global governance of the Internet, the Internet Corporation for Assigned Names and Numbers (“ICANN”)—an internationally organised multi-stakeholder body that secures the operation of the Domain Name System (“DNS”) globally—has recently included a “Core Value” of “respect for internationally recognised human rights” in its Bylaws. Since the DNS is integral for navigating and browsing the Internet, policies governing its operation have enormous human rights implications at the global level. After more than three years of multi-stakeholder deliberations over the appropriate Framework of Interpretation (FOI) for the new Core Value, ICANN Board has finally approved it in November 2019, taking one crucial step forward towards the implementation of its newly pronounced human rights aspirations. This article critically examines ICANN’s latest human rights rhetoric and argues that the new aspirations in the Bylaws are drafted in a way that they carry little, if any, legal weight. I will further show that the new aspirations in the Bylaws are much weaker than the quasi-constitutional, self-imposed commitments in ICANN’s founding documents—the Articles of Incorporation. ICANN has proved to be reluctant to comply with those self-imposed commitments in the past; and I argue that it is, therefore, unlikely to convert its novel human rights rhetoric into practice. This raises questions about the extent of its commitment to human rights values, and whether the new Core Value amounts to little more than a veneer intended to bolster ICANN’s public image and confidence in light of the ongoing institutional reforms in Internet Governance.
VOLUME 9 • ISSUE 2 • PRINT
THE ANALYSIS OF BENEFITS IN CONSUMER PROTECTION REGULATIONS
Howell E. Jackson & Paul Rothstein
Over the past decade, cost-benefit analysis in the field of financial regulation (“financial CBA”) has emerged as a topic of intense public interest. In reviewing rulemakings under the Administrative Procedure Act, courts have demanded greater rigor in the financial CBA that regulators provide in support of new regulations. Industry experts and other analysts have repeatedly questioned the adequacy of agency assessments of costs and benefits. And legal academics have engaged in a robust dialogue over the merits of financial CBA and the value of alternative institutional structures for overseeing financial CBA.
VOLUME 9 • ONLINE
SAVING LIVES THROUGH SHAMING
Sharon Yadin
The Occupational Safety and Health Administration (OSHA) routinely employs shaming tactics toward employers, using public denunciations disseminated through social media, press releases, and online databases. These tactics, termed by the agency “regulation by shaming,” aim to name and shame companies into compliance with worker-safety regulations. In the face of heavy criticism of this practice, as well as legislative initiatives that aim to scale back OSHA’s regulation by shaming, this Article argues not only that shaming employers is an important regulatory tool that can help save workers’ lives, but also that OSHA’s “provocative” shaming tactics are in fact soft in comparison to other forms of regulatory shaming, and should be amplified.
VOLUME 5 • ISSUE 2 • PRINT
CORPORATE PIETY AND IMPROPRIETY: HOBBY LOBBY‘S EXTENSION OF RFRA RIGHTS TO THE FOR-PROFIT CORPORATION
Amy J. Sepinwall
In Burwell v. Hobby Lobby, Inc., the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the corporate veil to protect the corporate owners’ rights even while having the veil shield the owners from liability for the corporation’s wrongs.
VOLUME 3 • ONLINE
SPACS AND THE JOBS ACT
Usha Rodrigues
Consider the story of the emerging growth company (EGC), or “Initial Public Offering (IPO) on-ramp,” provision of the Jumpstart Our Business Startups Act (JOBS Act). In its first few months on the books, this provision had effects far different from what its drafters envisioned. The JOBS Act’s IPO on-ramp was intended to ease regular companies’ path to going public; instead, it has inadvertently made it easier for the average investor to get a taste of private equity via special purpose acquisition corporations (SPACs). This piece will briefly describe SPACs, the IPO on-ramp, and how shell companies have taken advantage of a legislative provision intended to bring cash-hungry young companies directly to market. This piece will close with a few thoughts on lessons the story of SPACs’ interaction with the JOBS Act may offer regarding the increasingly indistinct line that divides public and private investment.