{"id":4761,"date":"2020-01-16T22:08:33","date_gmt":"2020-01-17T03:08:33","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/hblr\/?page_id=4761"},"modified":"2025-02-18T18:30:36","modified_gmt":"2025-02-18T23:30:36","slug":"volume-9-issue-2","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/hblr\/volume-9-issue-2\/","title":{"rendered":"Volume 9, Issue 2"},"content":{"rendered":"
HUMAN RIGHTS & LABOR \u2022 CONSUMER PROTECTION<\/h5>\n

THE ANALYSIS OF BENEFITS IN CONSUMER PROTECTION REGULATIONS<\/a><\/strong><\/h3>\n
Howell E. Jackson & Paul Rothstein
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Over the past decade, cost-benefit analysis in the field of financial regulation (\u201cfinancial CBA\u201d) 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.<\/p>\n

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SECURITIES & FINANCIAL REGULATION \u2022 BUSINESS & CORPORATIONS<\/h5>\n

DE-DEMOCRATIZATION OF FIRMS: A CASE STUDY OF PUBLICLY-LISTED PRIVATE EQUITY FIRMS<\/a><\/strong><\/h3>\n
Sung Eun (Summer) Kim
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This paper develops a definitional and conceptual framework to assess the extent to which firms are democratically organized and applies the framework to thirty-nine publicly-listed private equity firms (\u201cPPE\u201d). The proposed definitional framework merges the criteria used by influential observers of political democracies together with the metaphor of \u201ccorporate democracy\u201d that has been used by state legislators, federal regulators, the judiciary, and legal scholarship that have shaped U.S. corporate governance. Under the proposed definitional framework, democratic corporate governance refers to a regime that invites broad participation by shareholders, treats shareholders equally, protects shareholders from misconduct, and facilitates mutually binding consultation. By the same token, de-democratization of firms refers to a trend towards a regime that is less inclusive, less equal, less protective, and unilateral. This case study focuses on mechanisms that are chosen by PPEs to facilitate shareholders\u2019 participation in governance and to hold managers accountable to shareholders. PPEs are an appropriate subject for this case study because they are firms that have adjusted their once highly private and sophisticated governance structures to accommodate public investors. The organizational and contractual features that are chosen by these firms reveal the balance between shareholder and managerial power within these newly public institutions. This review finds evidence of de-democratization across all four dimensions (inclusion, equality, protection, and mutuality) of the proposed definition of corporate democracy. This account of the de-democratization within one segment of firms yields new insights about the relationship between firms and government. This Article takes the first step toward categorizing these various relationships between democratic principles in the corporate and political contexts and suggests tailored policy responses to the trend of de-democratization among firms.<\/p>\n

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LEGAL & REGULATORY COMPLIANCE<\/h5>\n

A KNOWLEDGE THEORY OF TACIT AGREEMENT<\/a><\/h3>\n
Wentong Zheng
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A persistent puzzle in antitrust law is whether and when an unlawful agreement could arise from conduct or verbalized communications that fall short of an explicit agreement. While courts have found such tacit agreements to exist in idiosyncratic scenarios, they have failed to articulate a clear and consistent logic for such findings. This Article attempts to fill this gap by proposing a unified theory of tacit agreement. It defines a tacit agreement as an agreement formed by non-explicit communications that enable the alleged coconspirators to have constructive knowledge of one another\u2019s conspiratory intent. This approach to tacit agreement is more faithful to the conceptual integrity and the statutory meaning of the agreement requirement under the Sherman Act. More importantly, it provides a flexible yet consistent formula for determining tacit agreements. This formula could be applied to any factual scenarios, including conscious parallelism, parallel conduct preceded by suggestive communications, hub-and-spoke conspiracy, and facilitating practices.<\/p>\n

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ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

WOKE CAPITAL: THE ROLE OF CAPITALISM IN SOCIAL MOVEMENTS<\/a><\/h3>\n
Jennifer S. Fan
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Iconic companies such as Apple, BlackRock, Delta, Google (now Alphabet), Lyft, Salesforce, and Starbucks, have recently taken very public stances on various social issues. In the past, corporations were largely silent in the face of them. Now the opposite is true corporations play an increasingly visible role in social movements and there are times when corporations have led the discussion, particularly in areas where they have a self-interest or public opinion supports it. The enormous influence corporations wield on both the economic and social fabric of our society due to the legal framework and norms under which they operate make them uniquely positioned to affect the outcome of social movements \u2014 for better or worse. The contribution of this Article is threefold: it discusses how court cases and changing norms about the role of the corporation in society led to the rise of the modern business corporation, which in turn laid the groundwork for corporations\u2019 involvement in social movements; provides an original descriptive account of the role of corporations in social movements using three case studies and the ways in which corporations have helped or hindered such movements; and tackles the underlying normative question about the appropriateness of the involvement of corporations in social movements in light of the legal framework in which it resides. This Article concludes that despite the perils, corporate law holds the promise of being a force for social change.<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

HUMAN RIGHTS & LABOR \u2022 CONSUMER PROTECTION THE ANALYSIS OF BENEFITS IN CONSUMER PROTECTION REGULATIONS Howell E. Jackson & Paul […]<\/p>\n","protected":false},"author":109,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"footnotes":""},"class_list":["post-4761","page","type-page","status-publish","hentry"],"jetpack_shortlink":"https:\/\/wp.me\/PgKEUK-1eN","jetpack-related-posts":[{"id":4672,"url":"https:\/\/journals.law.harvard.edu\/hblr\/hblr-online-volume-9\/","url_meta":{"origin":4761,"position":0},"title":"Volume 9 (2018\u20132019)","author":"wgu","date":"May 9, 2019","format":false,"excerpt":"HUMAN RIGHTS & LABOR 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. 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Boudreau The European sovereign debt crisis has generated a number of controversial restructuring proposals that would have seemed appropriate only for emerging markets just a few years ago, but now are among the few options\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4236,"url":"https:\/\/journals.law.harvard.edu\/hblr\/hblr-online-volume-1\/","url_meta":{"origin":4761,"position":5},"title":"Volume 1 (2010\u20132011)","author":"ehansen","date":"July 31, 2016","format":false,"excerpt":"BUSINESS & CORPORATIONS LLCS AND CORPORATIONS: A FORK IN THE ROAD IN DELAWARE? Joshua P. Fershee The limited liability company (LLC) has evolved from a little used entity option to become the leading business entity of choice. 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