{"id":4892,"date":"2021-12-17T21:55:16","date_gmt":"2021-12-18T02:55:16","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/hblr\/?page_id=4892"},"modified":"2025-02-18T17:30:49","modified_gmt":"2025-02-18T22:30:49","slug":"volume-14-issue-1","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/hblr\/volume-14-issue-1\/","title":{"rendered":"Volume 14, Issue 1"},"content":{"rendered":"
BUSINESS & CORPORATIONS<\/h5>\n

RETHINKING COMMERCIAL LAW’S UNCERTAIN BOUNDARIES<\/a><\/h3>\n
Steven L. Schwarcz<\/strong><\/em><\/h6>\n
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Although it is an essential part of business law, commercial law has uncertain boundaries. That uncertainty creates significant legal ambiguities and inconsistencies, confusing lawyers and courts and causing misinterpretations that disrupt commerce and reduce efficiency. This Article hypothesizes and tests possible explanations for the uncertainty, including that commercial law\u2019s development has been path dependent, ad hoc, and lacking well-defined normative purposes. The Article then analyzes what those boundaries should be, arguing that commercial law should cover all business-related transfers of property, subject to exceptions needed to reduce transaction costs and otherwise increase economic efficiency. The Article also compares its proposed boundaries to the scope of commercial law under the Uniform Commercial Code, both to test whether those boundaries are tethered to reality and to examine whether the scope of the UCC itself should be modified.<\/p>\n

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SECURITIES & FINANCIAL REGULATION<\/h5>\n

ZOMBIE STOCKS<\/a><\/h3>\n
Young Jae Choi, Joseph Engelberg, Frank Partnoy, Adam V. Reed & Matthew C. Ringgenberg<\/strong><\/em><\/h6>\n
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This Article examines a previously unstudied aspect of short selling: the risk that the shares a short seller has borrowed will be delisted and deregistered. We label such shares \u201czombie stocks\u201d or \u201czombies,\u201d because they appear to be \u201cdead,\u201d but nevertheless create financial horror for short sellers, exposing them to signifi- cant risks and costs even when the short seller has speculated correctly against a company\u2019s shares. The central problem occurs when short sellers are unable to purchase shares to satisfy their borrowing obligations and instead become stuck paying equity loan fees and posting collateral, potentially indefinitely.<\/p>\n

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CORPORATE LAW & GOVERNANCE \u2022 ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

E O.G.: UNMASKING WHY GOVERNANCE IS THE MOST IMPORTANT COMPONENT OF ESG<\/a><\/h3>\n
Lisa M. Fairfax<\/strong><\/em><\/h6>\n
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Environmental, Social, and Governance (\u201cESG\u201d) is now dominating the corporate landscape. ESG encompasses a broad array of \u201cEnvironmental\u201d issues such as climate change, \u201cSocial\u201d issues ranging from workplace safety and child labor practices to diversity, equity, and inclusion (\u201cDEI\u201d) initiatives, and \u201cGovernance\u201d matters related to shareholder voting rights and board composition.ESG has impacted the behavior of actors across the corporate ecosystem. Shareholders, asset managers, and financial institutions are increasingly demanding that corporations provide more ESG disclosure and make more concrete ESG commitments. Boards have become increasingly focused on ESG oversight, and have increasingly prioritized selecting new directors who have ESG expertise. Corporations have ramped up their ESG engagement, contributing to the steady rise in voluntary ESG disclosure and new ESG commitments, policies, and practices.<\/p>\n

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SECURITIES & FINANCIAL REGULATION<\/h5>\n

MANIPULATING CITADEL: PROFITING AT THE EXPENSE OF RETAIL STOCK TRADERS’ MARKET MAKERS<\/a><\/h3>\n
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Merritt B. Fox, Lawrence R. Glosten & Sue S. Guan<\/h6>\n<\/div>\n<\/div>\n<\/div>\n
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This Article considers whether securities market strategies designed to profit at the expense of so-called \u201cinternalizers\u201d should properly be considered illegal manipulation. An internalizer acquires from a brokerage firm the right to be the market maker for the broker\u2019s full order flow from its retail customers, promising in return to execute each order at a price slightly better than the best price available on any exchange (\u201cprice improvement\u201d) as well as to pay the broker a fee for each executed order (\u201cpayment for order flow\u201d). Almost all retail trading\u2014about 29% of the country\u2019s total share volume\u2014is executed in this fashion, amounting in 2021 to about $41 trillion in transactions, a figure almost twice the nation\u2019s GDP that year.<\/p>\n

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SECURITIES & FINANCIAL REGULATION<\/h5>\n

HIGH-END SECURITIES REGULATION: REFLECTIONS ON THE SEC’S 2022-23 PRIVATE FUNDS RULEMAKING<\/a><\/h3>\n
William W. Clayton <\/strong><\/em><\/h6>\n
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For most of its history, the SEC has taken a hands-off approach to private markets. Instead of direct regulation, the SEC has relied primarily on investor access restrictions to create high-end contracting environments where investors (in theory) have the resources needed to fend for themselves. But in early 2022, this hands-off philosophy was turned on its head. In response to booming growth and concerns about harms to public pension plans and other institutional inves- tors, the SEC proposed a sweeping set of regulatory interventions in the private fund industry, a vast and important part of the private market ecosystem with over $25 trillion in assets under management. At the conclusion of a long and con- tentious comment period, the agency released a set of final rules requiring fund managers to provide detailed, standardized quarterly disclosures to investors and regulating preferential treatment, among other things.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

BUSINESS & CORPORATIONS RETHINKING COMMERCIAL LAW’S UNCERTAIN BOUNDARIES Steven L. Schwarcz Although it is an essential part of business law, […]<\/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-4892","page","type-page","status-publish","hentry"],"jetpack_shortlink":"https:\/\/wp.me\/PgKEUK-1gU","jetpack-related-posts":[{"id":5247,"url":"https:\/\/journals.law.harvard.edu\/hblr\/business-corporations\/","url_meta":{"origin":4892,"position":0},"title":"Business & Corporations","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 14 \u2022 ISSUE 1 \u2022 PRINT RETHINKING COMMERCIAL LAW'S UNCERTAIN BOUNDARIES Steven L. Schwarcz Although it is an essential part of business law, commercial law has uncertain boundaries. That uncertainty creates significant legal ambiguities and inconsistencies, confusing lawyers and courts and causing misinterpretations that disrupt commerce and reduce efficiency.\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5148,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-14-issue-2\/","url_meta":{"origin":4892,"position":1},"title":"Volume 14, Issue 2","author":"wgu","date":"October 24, 2024","format":false,"excerpt":"CORPORATE LAW & GOVERNANCE THE HOLDING FOREIGN COMPANIES ACCOUNTABLE (HFCA) ACT: A CRITIQUE Jesse M. Fried & Tamar Groswald Ozery The 2020 Holding Foreign Companies Accountable (HFCA) Act will force China-based firms to delist from U.S. exchanges if China fails to permit audit inspections during a two-year period. The Act\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5029,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-12-issue-1\/","url_meta":{"origin":4892,"position":2},"title":"Volume 12, Issue 1","author":"wgu","date":"April 3, 2023","format":false,"excerpt":"CORPORATE LAW & GOVERNANCE SHIFTING INFLUENCES ON CORPORATE GOVERNANCE: CAPITAL MARKET COMPLETENESS AND POLICY CHANNELING Ronaldo J. Gilson and Curtis J. Milhaupt Corporate governance scholarship is typically portrayed as driven by single factor models, for example, shareholder value maximization, director primacy or team production. These governance models are Copernican; one\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5258,"url":"https:\/\/journals.law.harvard.edu\/hblr\/corporate-law-governance\/","url_meta":{"origin":4892,"position":3},"title":"Corporate Law & Governance","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 15 \u2022 COLUMNS THE DUAL CLASS DILEMMA AND THE SUNSET-CLAUSE SOLUTION\u00a0 Adrian Brown The desirability of dual-class stock has been a source of substantial controversy. Some scholars, commentators, and industry participants are wholly in favor of such arrangements. Others are wholly opposed. While neither of these diametrically opposed views\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5251,"url":"https:\/\/journals.law.harvard.edu\/hblr\/industry\/","url_meta":{"origin":4892,"position":4},"title":"Industry","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 15 \u2022 COLUMNS BOEING: THE MULTITUDE OF ITS TROUBLES Erica (Xinhui) Chen Boeing, the aviation giant corporation, has been facing a multitude of troubles in recent years. Two accidents of Boeing 737 Max resulted in the deaths of 346 people and revealed the flawed engineering safety control of Boeing.\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/4892","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/users\/109"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/comments?post=4892"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/4892\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/media?parent=4892"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}