Columbia Law School
Sky Blog
Who Wins In the Supreme Court?
What does it mean to win a case in the Supreme Court? A perfectly good explanation is looking at the party that prevails on the merits. But winning on the merits encapsulates only a small portion of the fruits of …
Finance & Economics
Corporations, the Constitution, and the Rights of Others
The Supreme Court’s protection of corporate political expenditures in Citizens United v. FEC and corporate religious exercise in Burwell v. Hobby Lobby has rekindled perennial fears about the influence of corporations in U.S. politics and policy. One popular response has …
Gibson Dunn discusses The Third Circuit Upholding the U.S. Federal Trade Commission’s Authority to Regulate Cybersecurity
The Federal Trade Commission’s longstanding effort to establish itself as the primary federal regulator of cybersecurity survived its first appellate test on Monday when the Third Circuit allowed the FTC to continue pursuing its case against Wyndham Worldwide Corp.[1] The …
Wachtell Lipton discusses Treasury Department Seeking to Curb “Cash-Rich” and REIT Spin-Offs
The Treasury Department and the Internal Revenue Service have announced (in Notice 2015-59) that they are studying issues related to the qualification of certain corporate distributions as tax-free under Section 355 of the Internal Revenue Code in situations involving …
Does Delaware Incorporation Affect Firm Value? Further Evidence
The question of whether corporate law affects firm value has been a long-standing debate. Some believe corporate laws are trivial and have no effect on firm value, but the dominant view argues that corporate laws do affect firm value. Scholars …
The Modern Corporation in a Networked and Digital Age
In a networked and digital age, we need to rethink the structure of the modern corporation. In order to survive and grow, corporations must operate with a new set of assumptions and principles in order to remain relevant, competitive, and …
Luck and CEO Turnover: Is There Evidence of a Corporate Governance Failure?
Recent provocative evidence suggests that a board’s decision to remove a CEO from office is influenced by components of firm performance that have little to do with the CEO’s efforts or abilities. In particular, several authors have suggested that boards …
Cahill discusses how Recent Cases Consider Challenges to Constitutionality of SEC’s Administrative Law Judges
Since the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) expanded the authority of the Securities and Exchange Commission (“SEC”) to seek civil penalties through administrative proceedings,1 the SEC has brought, as one court observed, “an …
Morgan Lewis explains New DOJ Counsel to Focus on Corporate Compliance
The US Department of Justice (DOJ) is creating a new compliance counsel position in the Criminal Division to assess the effectiveness of an entity’s compliance program and help prosecutors decide whether or how to charge an entity under investigation. Public …
Fleecing the Family Jewels
Crown jewel lock-up options, a deal protection device common during the 1980s mergers and acquisitions boom, are back. My forthcoming paper, Fleecing the Family Jewels,[1] is the first scholarly paper to examine the reemergence of crown jewel lock-ups …
Goldstein and Associates discuss Short-Termism, Performance Goals and Executive Compensation
As the struggle for corporate control between advocates for long-term, sustainable economic growth and promoters of short-term financial performance rages on, we thought it made sense to highlight the point at which this battle manifests itself most frequently in discussions …
The SEC’s Expansion of Primary Liability Under Section 17(a) and Rule 10b-5
In an administrative enforcement case called Flannery, a bare majority of SEC Commissioners adopted broad positions on primary liability under parts of the two main anti-fraud provisions in the securities laws, Rule 10b-5(a) and (c) and Section 17(a)(1), (2), …
The Detroit Bankruptcy Blueprint
What unites Atlantic City, the Chicago Public School System, and Puerto Rico’s electric company? They are financially distressed government entities facing various legal and political barriers to using the United States bankruptcy system. Negotiations over those barriers are, in part, …
Yes, an Auditor’s IQ Score Really Matters
Not surprisingly, cognitive abilities predict many economic and social outcomes such as salary, job complexity, or success in investment decisions. What is surprising, however, is that almost all auditing research analyzing archival data on audit outcomes has assumed that all …
Private fund Performance After the Dodd-Frank Act – Evidence from 2010 to 2015
Does the Dodd-Frank Act lower the earnings of the private fund industry? For much of its history, the private fund industry has viewed private fund adviser registration and the disclosure of proprietary information as a threat to its profitability. Title …
Akin Gump discusses SDNY Judge Berman Enjoining SEC Administrative Proceeding as “Likely Unconstitutional”
In recent years, taking advantage of expanded jurisdictional provisions in Dodd-Frank, the U.S. Securities and Exchange Commission (SEC) has brought an increasing number of enforcement actions, including complex matters with difficult factual and legal issues, through administrative proceedings, rather than …
An Unsatisfactory State of the Law: The Limited Options for a Corporation Dealing with Cyber Hostilities by State Actors
State-sponsored cyber hostilities on corporations are not a new occurrence. Recent examples include the August 2014 suspected Russian hack of JP Morgan Chase[1] and the continuous cyber activities against corporate targets conducted by Unit 61398 of the Chinese People’s …
O’Melveny explains SEC Seeking Comment on Revisions to Audit Committee Disclosures
On July 1, 2015, the Securities and Exchange Commission issued a concept release seeking public comment on possible revisions to audit committee disclosure requirements, focused primarily on audit committee oversight of independent auditors. The concept release is available here. …
The Politics of Corporate Transparency and the Struggles over the Non-Financial Reporting Directive 2014/95/EU
Crises can generate pressure for change – and there are crises aplenty in contemporary governance and corporate accountability. After decades of neoliberal orthodoxy, the US sub-prime crisis, the European banking crises and corporate malfeasance[1] have shaken the ideologies of …
Shearman & Sterling explains SEC Moving Closer to Registration of Security-Based Swap Dealers and Major Security-Based Swap Participants
On August 5, 2015, the US Securities and Exchange Commission (“SEC”) took several incremental steps toward completing its regulatory framework for security‑based swap dealers and majority security‑based swap participants (“SBS Entities”). The SEC unanimously adopted final rules (the “Final Rules”) …