Toward a “Tender Offer” Market for Labor Representation

For decades, corporate America has succeeded in delivering ever higher profits for shareholders by squeezing workers.  Whether the basic driver is labor monopsony, or a lack of worker power to capture economic profits at corporations, or increasingly ruthless business and legal practices, there appears to be a fundamental power imbalance between workers and the providers of financial capital.  The result has been rich financial returns and stratospheric stock prices for shareholders, and increased economic and personal misery for workers.

Labor unions are supposed to provide a solution to these problems.  They are designed to exercise the collective power of workers … Read more

ESG Investing: Why Here? Why Now?

ESG investing is taking the world of finance by storm.  Few concepts have come to dominate an academic discipline as quickly as Environmental, Social, and Governance (ESG) has come to dominate the field of corporate law.  While certain forms of ESG investing and governance have been around since the 19th century and achieved some prominence during the anti-apartheid movement, [1] the term “ESG” first appeared in 2004, when the former UN secretary general challenged various financial institutions “to develop guidelines and recommendations on how to better integrate environmental, social and corporate governance issues in asset management, securities brokerage services … Read more

Why Unions Lose Elections

Recently, workers at Amazon dealt what has been called a “decisive” and “crushing” blow to organized labor,[1] with their proposed union receiving less than 30 percent of the votes cast, according to the federal vote counters overseeing the election.  While union officials complain that Amazon cheated by campaigning too hard against the organizing effort, a close look at the election indicates that the better argument is that Amazon workers acted rationally.

The most likely explanation for the union’s drubbing was that Amazon workers had an informed and healthy concern that becoming unionized would make them worse off.  This … Read more

Securities Regulation and Class Warfare

In a new article, I examine the regulatory goals of creating “fair, orderly, and efficient” securities markets in light of the recent issues involving trading in the shares of GameStop Corp. (GME) through the broker-dealer firm Robinhood Financial LLC.  The article contributes to the literature on the regulation of securities markets by explaining what the terms “fair,” “orderly,” and “efficient” markets really mean.  A fair market is a market in which average, “Main Street” investors get what they pay for.  Under this definition, U.S. capital markets are generally fair because they are generally efficient. Efficient markets reflect all relevant information … Read more

Fir Tree v. Jarden and M&A Appraisal

The Delaware Supreme Court’s recent decision in Fir Tree v. Jarden[1] marks an important milestone in the law of appraisal, making clear that unaffected market price can and should be decisive in some appraisal actions. Because the court’s opinion relied on the proposed methodology we advocated in our recent article, Asking the Right Question: The Statutory Right of Appraisal and Efficient Markets, published in the 2019 edition of the Business Lawyer, [2] we here offer some observations about the Jarden opinion and the future of the law of M&A appraisal.

Jarden involved the not-so-uncommon situation where an acquirer … Read more