• Selected
• Entire List

Abstract:
The bursting of the internet bubble continues to have ripple effects on the initial public offering (IPO) process. Critics of this process have fashioned a complex set of interconnected objections to the orthodox bookbuilding method for conducting IPOs, pricing shares, and allocating them to preferred investors. Critics instead hail online reverse-bid, or Dutch, auctions (Dutch IPOs) as an alternative method promising more equitable access, efficient prices, and egalitarian allocations.

This article comprehensively assesses the case for Dutch IPOs. Part I dissects critiques of bookbuilding, which rely on anomalous data, derogate established financial literature, and largely evaporate in the face of recent regulations. Part II examines the empirical performance of Dutch IPOs, which have failed to distinguish themselves in the United States and around the world. Part III reveals ways in which Dutch IPOs may be susceptible to fraud and manipulation that bookbuilding is not. Ultimately, claims of the Dutch IPO's superiority over bookbuilding are unproven at best and at worst fail to appreciate certain risks.

asymmetrical information, auctions, bidding rings, bookbuilding, Dutch IPO, Mise en Vente, OpenIPO, spinning, securities, strategic behavior, underpricing

Abstract:
Tracing is a method that appears within multiple fields of law. Distinct conceptions of tracing, however, have arisen independently within securities and remedial law. In the securities context plaintiffs must trace their securities to a specific offering to pursue certain relief under the Securities Act of 1933. In the remedial context victims who trace their misappropriated value into a wrongdoer's hands can claim any derivative value, even if it has appreciated.

This article is the first to compare and then cross-apply tracing within these two contexts. Specifically, this article argues that securities law should adopt a version of the rules-based tracing method from remedial law. This method's tracing of exchanged value, instead of purchased securities, will restore broad access to private civil remedies and the optimal level of deterrence for fraudulent public offerings.

Intradisciplinarity, Public Offerings, Remedies, Restitution, Securities Act of 1933, Tracing, Unjust Enrichment

Abstract:
Gatekeeping is a metaphor ubiquitous across disciplines and within fields of law. Generally, gatekeeping comprises an actor monitoring the quality of information, products, or services. Specific conceptions of gatekeeping functions have arisen independently within corporate and evidentiary law. Corporate gatekeeping entails deciding whether to grant or withhold support necessary for financial disclosure; evidentiary gatekeeping entails assessing whether expert knowledge is relevant and reliable for admissibility. This article is the first to identify substantive parallels between gatekeeping in these two contexts and to suggest their cross-treatment. Public corporate gatekeepers, like their judicial evidentiary analogues, should bear a duty of reliable monitoring.

Intradisciplinarity, gatekeeping, expert evidence, Securities and Exchange Commission, monitoring, fraud

Abstract:
This article challenges our persistent path dependence on defunct distinctions between corporations and certain limited unincorporated associations. Recent federal tax regulations have inspired proposals for consolidated treatment of all limited business organizations through uniformly based or universally applicable statutes. I contend these proposals are preoccupied with how hybrid organizations such as the limited liability company and the limited liability partnership amalgamate, and thus implicitly preserve, traditional dichotomies between corporations and partnership categorizations as well as entities and aggregate theories. The continued use of these schemes compromises the legal basis for such proposals.

By critically examining certain jurisdictional principles, this article reveals inconsistencies that can serve as an entry point for effecting collapse of distinctions between corporations and certain limited unincorporated associations. Specifically, United States citizens domiciled abroad are "stateless" and so cannot sue or be sued in federal courts under the alienage jurisdiction statute. Under the prevailing jurisdictional test, unincorporated associations with stateless members inherit this incapacity to access federal courts for alienage purposes while corporations do not. These radically different outcomes are the product of outmoded and untenable common law and statutory schemes. As a solution, I propose implementing a citizenship test based on domicile for both stateless individuals and unincorporated associations. Such a test would rectify these schemes and provide a framework that can support uniform treatment of all limited business organizations.

Abstract:
Since 1959 the Corporate Practice Commentator (CPC) has published an annual compendium of “the most original and useful contemporary writing” within the fields of corporate and securities law. Since 1994 the CPC also has conducted an annual survey of the Best Corporate and Securities Articles published and indexed within the past calendar year. This project, prepared in connection with the AALS Conference on Business Associations, empirically examines attributes of 177 Best Corporate and Securities articles and their authors from 1994 to 2008, as well as analyzes their impact on academic papers as well as judicial opinions. To provide context, these articles are compared to 229 articles published in the CPC and 81 articles published in the top three student-edited journals during approximately the same time period.

Unlike other citation studies, this project does not seek to measure quality. This is because the project features a dataset of articles whose purported quality already has been adjudged by the authors’ peers. Although this project proceeds to identify the authors and types of articles that generate superior citation counts, these results should not be understood as any sort of normative ranking of quality, but merely as a positive portrait of the Best Corporate and Securities scholarship.

Citation Analysis, Best Corporate and Securities Articles, Legal Scholarship, Peer Selection, Rankings

Abstract:
This is the Keynote Address for "IPOs and the Internet Age: The Case for Updated Regulations," a symposium held at The Ohio State University Michael E. Moritz College of Law. Initial public offerings ("IPOs") are an exercise in asymmetrical valuation. One mechanism for bridging these asymmetries is a private financial intermediary to conduct price discovery by meeting with preferred investors. An alternate mechanism is an auction, such as a descending-bid or Dutch procedure, to conduct price discovery by soliciting bids from all prospective investors. Recent disenchantment with the relationship between issuers and intermediaries has prompted some to hail (online) auction-based IPOs. This switch, however, incurs a variety of legal costs that may justify broader mandatory disclosure and state intervention.

The legal costs of auction-based IPOs can be gleaned from examining various international regulatory regimes. To comparatively evaluate these regimes, this article introduces a paradigmatic framework derived from the classic tri-tiered schema that Guido Calabresi and A. Douglas Melamed formulated for legal entitlements. By conceptualizing IPOs as a problem of asymmetrically-valued shares, different kinds of regulations can assume the form of property, liability, and inalienability rules. The distinctions between these rules explain variations within the regulatory schemes of France, Israel, and Taiwan, the last bastions of auction-based IPOs, and evince the legal price that must be paid for the United States to offer an auction-based alternative to bookbuilding.

Asymmetrical Information, Auctions, Bookbuilding, Guido Calabresi, Dutch IPO, Entitlements, Inalienability, France, Israel, A. Douglas Melamed, Taiwan