• Selected
• Entire List

Abstract:
Degrees of separation is a concept that is intuitive and appealing in popular culture as well as academic discourse: It tells us something about the connectedness of a particular field. It also reveals paths of influence and access. Paul Erdős was the Kevin Bacon of his field - math - coauthoring with a large number of scholars from many institutions and across subfields. Moreover, his work was highly cited and important. Mathematicians talk about their Erdős number (i.e., numbers of degrees of separation) as a sign of their connection to the hub of mathematics: An Erdős number of 2 means a scholar did not co-author with Erdős but did collaborate with someone who did (i.e., an Erdős 1). In this study, we examine collaboration networks in law, searching for the Legal Erdős. We crown Sunstein as the Legal Erdős and name a complete (as possible) list of Sunstein 1s and 2s.

Legal Scholarship, Legal Education, Law Schools, Network Theory, Collaboration, Rankings

Abstract:
Building on the success of derivatives markets in the financial arena, I show how similar markets can be used to hedge risk in legal academia. Prudent use of these markets will generate cash, mitigate errors in hiring, and increase the academic prestige of law schools. In short, they can do for legal academia what they have already done to the financial world.

Abstract:
Every fall many law students become embroiled in two distinct, yet remarkably similar, markets: the law clerk market and the law review article market. While there has been considerable ink spilled about each market separately, there has never been a discussion of the similarities of the two and the lessons to be learned by the comparison. This short essay begins to fill this much needed gap in the legal literature.

law clerks, law reviews

Abstract:
This paper examines corporate voting contests experimentally using a weighted voting model. We begin by providing a systematic treatment of weighted voting models as an analytical tool for legal policy. After this short intuitive guide to the basic concepts and techniques employed in these models, we then explore their use (and misuse) by the courts in the political arena. We continue this introduction by examining prior work using weighted voting models in the corporate setting. Here the literature has focused on two different aspects of corporate voting: the analysis of voting concentration and corporate control and, more recently, proxy contests for corporate control.

In the next section, we engage in an in-depth analysis of the new models of corporate elections developed by Gilson & Schwartz and Bebchuk & Hart. In our critique, we show that both the Gilson & Schwartz approach and the Bebchuk & Hart paper are flawed. In particular, we find that the models used in Gilson & Schwartz employ unreasonable hypotheses and reach questionable conclusions, whereas we argue that the Bebchuk & Hart effort requires exceptionally strong hypotheses and very stringent mathematical assumptions to reach its conclusions.

To develop a more realistic approach to these questions, we employ a probabilistic version of a standard weighted voting model that explicitly incorporates two critical features of corporate voting: first, that shares are normally voted in large blocks rather than in single shares; and second, that independent third party proxy voting advisors play an important, and often pivotal, role in determining the outcome of corporate elections. In addition, we explicitly incorporate information about the size of different corporate constituencies and their voting preferences. Using our model, we show experimentally how the distribution of shares among various investor constituencies will affect the outcome of different types of voting contests.

Initially, we assume that the current legal regime applies so that corporate management determines whether to accept an unsolicited bid and can use a wide variety of anti-takeover defenses to forestall hostile bidders. We find that neither proxy contests, tender offers, nor combined proxy contests and tender offers will always lead to the desirable outcome for target company shareholders in any scenario. With each type of acquisition technique, bidders succeed in obtaining control of the target company in some value decreasing transactions, and are defeated in their acquisition efforts in some value increasing transactions. The implication is that, under current law, there will generally be some plausible basis for target company management to argue that it is value increasing to use defensive measures to preclude shareholder acceptance of a takeover bid.

Finally, we study the effect on our results of adopting different theoretical perspectives on the proper role for shareholder voting. One alternative theory we examine is that target management should be barred from using defensive measures to stop an unsolicited takeover bid. Our model shows that if we adopt this theory, a change of control will occur in any case where the bid's value significantly exceeds the target's prior stock price. However, we are unable to accurately measure how this change will affect the size of premium offered in all bids, or the frequency of takeover bids, so that we cannot make social welfare comparisons between this regime and the current one.

We then examine a second alternative theory that proposes shareholders should be able to vote within a reasonable period of time to remove any defensive tactic that impedes their ability to accept a takeover bid. This approach reduces all takeover battles to proxy contests occurring within at most thirteen months, the maximum length of time most states permit to elapse between annual meetings from the time of the announcement of the bid. In this situation, the shareholder vote will, in most circumstances, lead to an acceptance of value maximizing bids and a rejection of value decreasing offers. We endorse this position because it is at least as good as the current legal regime in insuring the maximization of shareholder vote, and better in that it permits shareholders to decide their own fate in more circumstances.

Abstract:
For many years academics have debated whether it is better to permit hostile acquirers to use tender offers to gain control over unwilling target companies, or to force them to use corporate elections of boards of directors in these efforts. The Delaware courts have expressed a strong preference for shareholder voting as a change of control device in hostile acquisitions. To force acquirers to accept their preferences, the Delaware courts have developed a jurisprudence permitting the effective classified board (ECB), a poison pill combined with a classified board, to protect target company management from removal by a hostile tender offer alone, or through a single corporate election. For companies with ECB's, this means that a determined acquirer must engage in two corporate elections over a period of two years to force entrenched managers to give up power.

In this paper, we examine whether proxy contests, tender offers or combined proxy contest/tender offers are more likely to result in value maximizing outcomes for shareholders when target companies are able to deploy defensive tactics. We begin by showing that prior work suffers from serious flaws involving the use of voting models that are inappropriate for analyzing proxy contests.

To develop a more realistic approach to these questions, we employ a probabilistic version of a standard weighted voting model that explicitly incorporates two critical features of corporate voting: first, that shares are normally voted in large blocks rather than in single shares; and second, that independent third party proxy voting advisors play an important, and often pivotal, role in determining the outcome of corporate elections. In addition, we explicitly incorporate information about the size of different corporate constituencies and their voting preferences. Using our model, we show experimentally how the distribution of shares among various investor constituencies will affect the outcome of different types of voting contests.

Using this model, and these different sets of assumptions, we find that neither proxy contests, tender offers, nor combined proxy contests and tender offers will always lead to the desirable outcome for target company shareholders in any scenario. With each type of acquisition technique, bidders succeed in obtaining control of the target company in some value decreasing transactions, and are defeated in their acquisition efforts in some value increasing transactions. These results hold whether we permit existing defensive tactics or eliminate them.

We conclude that in order to properly analyze the role of defensive tactics, courts must take into account the underlying shareholder ownership patterns. This requires them to engage in a fact sensitive analysis of whether defensive tactics are impeding or facilitating the maximization of shareholder value. When we examine the Delaware Chancery Court's decisions, the reasonableness analysis that they have employed to decide whether to overturn defensive tactics permits them to do so. We recommend that the courts continue to apply this type of analysis in the future with more direct consideration of the impact of the underlying ownership structure in determining whether the defenses are being used to maximize shareholder value.

Abstract:
Discussion of shareholder voting frequently begins against a background of the democratic expectations and justifications present in decision-making in the public sphere. Directors are assumed to be agents of the shareholders in much the same way that public officers are representatives of citizens. Recent debates about majority voting and shareholder nomination of directors illustrate this pattern. Yet the corporate process differs in significant ways, partly because the market for shares permits a form of intensity voting and lets markets mediate the outcome in a way that would be foreign to the public setting and partly because the shareholders' role is more limited than that of citizens in the political process. The most developed theory of corporate voting, Easterbrook & Fischel's economic based theory from the 1980s, describes shareholder voting as the best means to fill gaps in incomplete contracts; shareholders as the residual owners have the best economic incentives to exercise such discretion. Such a theory supports unfettered shareholder action substantially broader than what actually exists.

In this article, we set out a new theory for shareholder voting based on information theory and more particularly voting as a method of error-correction. Like the prior theory, our approach explains why, among various corporate constituencies, only shareholders may vote. More importantly, our theory provides a more consistent theoretical foundation for explaining the few issues on which shareholders actually do vote. We use this approach to address the recent development of empty voting, a process where investors have used innovations in finance such as derivatives, equity swaps and share lending, to obtain voting rights in a corporation stripped of any financial interest in the company. The error-correction purpose of corporate voting requires that there be alignment between the voting right and the underlying financial interest of shares as has been illustrated in the traditional corporate law practices of one share/one vote and bans on vote buying and contracts that separate voting rights and financial interests. We propose that courts reinvigorate these principles to police empty voting. Our theory also provides a superior framework in which to assess proposals for increased shareholder power in corporate governance.

shareholder voting, empty voting, corporate democracy, director primacy, Blasius, theories of corporate voting

Abstract:
In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice are adequate to the task of assessing power on the Court.

voting behavior, elections, policy, Supreme Court, median justice

Abstract:
Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our model, favoring instead an additive measure based on the number of times each Justice participated in any winning coalition.

This Article stages a new Power Pageant of the Justices in light of the cases decided by the Court since 1996. For more than seven Terms, the Court has retained the same personnel. This stability provides a unique opportunity to test competing measures of judicial voting power. We hypothesized in 1996 that a larger set of cases might obviate the need to resort to inferred coalitions. Analysis of this larger data set in fact undermines the validity of both our measure and that of Professor Baker over the long run. We conclude that there are three different measures of voting power each reflecting a different aspect of judicial power.

Banzhaf index, voting power, Supreme Court, Anthony Kennedy

Abstract:
For many years academics have debated whether it is better to permit hostile acquirers to use tender offers to gain control over unwilling target companies, or to force them to use corporate elections of boards of directors in these efforts. The Delaware courts have expressed a strong preference for shareholder voting as a change of control device in hostile acquisitions. To force acquirers to accept their preferences, the Delaware courts have developed a jurisprudence permitting the effective classified board (ECB), a poison pill combined with a classified board, to protect target company management from removal by a hostile tender offer alone, or through a single corporate election. For companies with ECBs, this means that a determined acquirer must engage in two corporate elections over a period of two years to force entrenched managers to give up power.

In this Article, Professors Edelman and Thomas examine whether proxy contests, tender offers, or combined proxy contest/tender offers are more likely to result in value maximizing outcomes for shareholders when target companies are able to deploy defensive tactics. The authors begin by showing that prior work suffers from serious flaws involving the use of voting models that are inappropriate for analyzing proxy contests. To develop a more realistic approach to these questions, the authors employ a probabilistic version of a standard weighted voting model that explicitly incorporates two critical features of corporate voting: first, that shares are normally voted in large blocks rather than in single shares; and second, that independent third party proxy voting advisors play an important, and often pivotal, role in determining the outcome of corporate elections. In addition, the authors explicitly incorporate information about the size of different corporate constituencies and their voting preferences. Using their model, Professors Edelman and Thomas show experimentally how the distribution of shares among various investor constituencies will affect the outcome of different types of voting contests.

Using this model, and these different sets of assumptions, the authors find that neither proxy contests, tender offers, nor combined proxy contests and tender offers will always lead to the desirable outcome for target company shareholders in any scenario. With each type of acquisition technique, bidders succeed in obtaining control of the target company in some value decreasing transactions, and are defeated in their acquisition efforts in some value increasing transactions. These results hold whether the authors permit existing defensive tactics or eliminate them.

Professors Edelman and Thomas conclude that in order to properly analyze the role of defensive tactics, courts must take into account the underlying shareholder ownership patterns. This requires them to engage in a fact sensitive analysis of whether defensive tactics are impeding or facilitating the maximization of shareholder value. When the authors examine the Delaware Chancery Court's decisions, the reasonableness analysis that the courts have employed to decide whether to overturn defensive tactics permits them to do so. The authors recommend that the courts continue to apply this type of analysis in the future with more direct consideration of the impact of the underlying ownership structure in determining whether the defenses are being used to maximize shareholder value.

takeover, proxy contest, corporate voting, weighted voting

Abstract:
Over the last 40 years of one person, one vote jurisprudence, the Supreme Court has distilled a stable and predictable test for resolving the basic numerical issue in equal representation: how much population difference between districts is permissible? Yet there remains one area of representation into which the Court has refused to venture: apportionment of Congress. In its only opinion on the mechanics of the decennial of apportionment, the Court deferred to Congress. It deferred because, unlike districting, it could not find a single workable measure for apportionment. But the reason it could not find such a measure was that it had made a mathematical error.

This Article corrects that mistake and, in the process, shows that the measure of representation for districting should be applied to apportionment. The result is a unified approach to measuring and evaluating disparities in these two types of representation.

This unified approach leads to a method of apportionment unlike any used in United States history. In particular, it would mean three fewer representatives from California and one more from each of South Dakota, Delaware, and Montana, among other changes. In general, it would mean larger states lose representative and smaller states gain. Overall, however, my proposed apportionment method better implements the Court's unwavering adherence to the principle of equal representation.

representation, apportionment, districting

Abstract:
In tort cases, comparative negligence now is the dominant method for determining damages. Under that method, the jury apportions fault among the parties and assesses damages in proportion to the relative fault assessment. Comparative negligence contrasts with contributory negligence, where any fault attributed to the plaintiff bars recovery.

Although comparative negligence routinely governs in tort cases, its most basic feature remains uncertain: how to apportion fault. In this Article, I demonstrate that at least two different methods exist, and that these methods lead to radically different outcomes. I create a framework, building on a traditional model from law and economics, to determine when each applies. I argue that the applicable method varies with the nature of care and the relationship between care and expected damage. This framework will organize and reshape comparative negligence determination.

Abstract:
Multiple-claimant representations - class actions and other group lawsuits - pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, settlement vetoes, and third-party review) to encourage appropriate allocations.

The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken and that its consequence has been to misdirect our understanding of the importance of information problems and bargaining costs in attorney-client relationships. In fact, it is relatively straightforward, as a mathematical matter, to design a two-part contingent fee arrangement that incentivizes a lawyer to both maximize an aggregate recovery and allocate it according to relative claim values. The failure of the market for multiple-claimant representations to generate fee arrangements of this type therefore reflects the operation of empirical factors, not the inherent limits of contingent fees.

We believe the principal barriers are information and bargaining costs. Two-part contingent fee arrangements require more information than claimants or attorneys are likely to possess and require more expensive negotiations than the monitoring devices the market actually employs. Monitoring devices are thus cheaper substitutes for more refined contingent fee arrangements, rather than unique solutions to allocation issues.

Attorneys fees, contingency fees, principal-agent, allocation, class actions, aggregate settlements

Abstract:
In Six Degrees of Cass Sunstein: Collaboration Networks in Legal Scholarship (11 Green Bag 2d 19 (2007)) we began the study of the collaboration network in legal academia. We concluded that the central figure in the network was Professor Cass Sunstein of Harvard Law School and proceeded to catalogue all of his myriad co-authors (so-called Sunstein 1's) and their co-authors (Sunstein 2's). In this small note we update that catalogue as of August 2008 and take the opportunity to reflect on this project and its methodology.

Legal Scholarship, Legal Education, Law Schools, Network Theory, Collaboration, Rankings

Abstract:
Even where idiosyncratic factors such as ideology play large and consistent roles in judges' decision-making, there are always cases where the patterns of judges' votes confound our expectations. In some ways, these are among the most interesting cases for scholars, raising important questions about judicial behavior and institutions. In the first part of this paper, we introduce a quantitative measure of deviations from expected voting patterns intended to allow scholars to systematically study unexpected votes and the questions they raise. In the second part, we illustrate the use of this new measure by developing a preliminary model to predict departures from strict ideological voting in the U.S. Supreme Court, in an effort to distinguish alternative explanations for these patterns. Although the conventional wisdom might suggest that disordered voting occurs because of cross-cutting issues, we find little evidence that case complexity is responsible for unexpected coalitions. This result suggests that some alternative explanation exists for such voting behavior; we offer several possibilities - including the influence of legal considerations - in our conclusions.

spatial voting, collegial courts, attitudinalism, disorder

Abstract:
This paper reconsiders the merits of at-large representation in municipal councils from a positive perspective. After briefly reviewing the normative justifications for at-large representation, I develop a voting model of a council election that includes some at-large representation and show that under this model a citizen's voting power is maximized when the number of at-large representatives is roughly the square root of the total number of representatives. This is the first positive model to establish the benefits of at-large representation and the only positive model of an election that produces such explicit recommendations.

The voting model I employ is based on an earlier voting model developed by John Banzhaf that has been used in litigation several times. I provide both an explication of his model and a review and critique of its uses by the courts. I conclude the essay with a discussion of the legal and policy implications of these results.

At-large representation, weighted voting, Banzhaf measure

Abstract:
In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.

Abstract:
We analyze the relative voting power of the Justices based upon Supreme Court decisions during October Term 1994 and October Term 1995. We take two approaches, both based on ideas derived from cooperative game theory. One of the measures we use has been used in connection with voting rights cases. After naming the Most Dangerous Justice, we conclude by identifying and explaining the inverse relationship between seniority and voting power.

Shapley-Shubik index, Frank-Shapley index, Banzhaf index, voting power, Supreme Court

Abstract:
In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed.

In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is a less appropriate methodology.

Supreme Court, spatial voting, information theory, singular value decomposition

Abstract:
The traditional approach to election design focuses solely on the best method to aggregate the preferences of the voters. Implicit in this approach are the assumptions that the outcome of the election will be dependent solely on the preferences of the individual voters over the options before them and the success of the election procedure is assessed in terms of how each individual voter values the outcome. But elections are run by institutions, and the interests of the institution may not be reflected in the preferences of the voters. Or worse, the interests of the institution may be in conflict with the preferences of the voters. If such institutional interests are not taken into account in the election design there is the potential for an election that does a good job of aggregating the preferences of the voters but damages the institution beyond repair.

In this essay I illustrate the institutional dimension of election design by way of the Academy Awards. The method by which the Academy of Motion Picture Art and Sciences selects the nominees and winners of the Oscars has been subject to endless scrutiny and debate. I show how the traditional focus on aggregating the preferences of the voters is misguided in this case because the preferences of the voters are in many ways antithetical to the interests of the Academy as a whole. Focusing more closely on the institution allows us to make recommendations for an electoral process that will better align the preferences of the members of the Academy with the institutions interests.

Building on the analysis of the Academy, I will go on to discuss how institutional considerations come in to play in election design in three other areas: political representation, corporate voting, and judging in competitions. Explicit consideration of institutional interests will advance both a positive analysis, explaining why some election methods are used in some cases and not in others, as well as allow for a normative analysis of when institutional interests are of sufficient interest as to warrant consideration in election design.

In the end, this essay calls for a contextual approach to election design. Elections are not formal problems in aggregation of preferences. They occur within institutions with interests that may not be reflected in the choices presented to voters. Good election design requires that attention be paid to the particular interests of the institutions.

Social Choice, elections, representation

Abstract:
There has been a spate of interest in the application of the Condorcet Jury Theorem to issues in the law. This theorem holds that a majority vote among a suitably large body of voters, all of whom are more likely than not to vote correctly, will almost surely result in the correct outcome. Its uses have ranged from estimating the correct size of juries to justifying the voting of creditors in Chapter 11 reorganizations. While the mathematics is unassailable, the legal interpretation of the conclusion is dependent on the model of probability one uses when invoking the assumption that the voters are "more likely than not to vote correctly." In this paper I show how different probabilistic models lead to different interpretations of the results. Establishing which is the appropriate model has normative implications as well. This analysis is then employed in critiquing work of Levmore and Kornhauser and Sager.