front cover of Achieving Access to Justice in a Business and Human Rights Context
Achieving Access to Justice in a Business and Human Rights Context
An Assessment of Litigation and Regulatory Responses in European Civil-Law Countries
Virginie Rouas
University of London Press, 2022
A powerful guide to seeking justice from corporations who commit human rights and environmental atrocities.

Multinational enterprises, or MNEs, can contribute to economic prosperity and social development in the countries where they operate. At the same time, their activities may directly or indirectly cause harm to humans and to the environment. Historically, MNEs have rarely been held accountable for their involvement in human rights abuses and environmental damage. In recent years, however, activists have sought to hold parent companies directly liable for the harm caused by their group’s activities. They have also strategically used litigation to trigger corporate accountability reforms at international, regional, and national levels.

Focusing on Europe, this book evaluates the extent to which litigation against MNEs has been effective in achieving access to justice and corporate accountability, particularly in civil-law countries. It also considers whether ongoing regulatory developments, such as the adoption of mandatory human rights due diligence norms and the negotiations for a business and human rights treaty, can contribute to the realization of access to justice and corporate accountability in the future.
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The Antitrust Enterprise
Principle and Execution
Herbert Hovenkamp
Harvard University Press, 2008

After thirty years, the debate over antitrust's ideology has quieted. Most now agree that the protection of consumer welfare should be the only goal of antitrust laws. Execution, however, is another matter. The rules of antitrust remain unfocused, insufficiently precise, and excessively complex. The problem of poorly designed rules is severe, because in the short run rules weigh much more heavily than principles. At bottom, antitrust is a defensible enterprise only if it can make the microeconomy work better, after accounting for the considerable costs of operating the system.

The Antitrust Enterprise is the first authoritative and compact exposition of antitrust law since Robert Bork's classic The Antitrust Paradox was published more than thirty years ago. It confronts not only the problems of poorly designed, overly complex, and inconsistent antitrust rules but also the current disarray of antitrust's rule of reason, offering a coherent and workable set of solutions. The result is an antitrust policy that is faithful to the consumer welfare principle but that is also more readily manageable by the federal courts and other antitrust tribunals.

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Are Predatory Commitments Credible?
Who Should the Courts Believe?
John R. Lott, Jr.
University of Chicago Press, 1999
Predatory pricing has long been a contentious issue among lawmakers and economists. Legal actions are continually brought against companies. But the question remains: how likely are firms to cut prices in order to drive rivals out of business? Predatory firms risk having to keep prices below cost for such an extended period that it would become cost-prohibitive. Recently, economists have turned to game theory to examine circumstances under which predatory tactics could be profitable.

John R. Lott, Jr. provides long-awaited empirical analysis in this book. By examining firms accused of or convicted of predation over a thirty-year period of time, he shows that these firms are not organized as the game-theoretic or other models of predation would predict. In contrast, what evidence exists for predation suggests that government enterprises are more of a threat.

Lott presents crucial new data and analysis, attacking an issue of major legal and economic importance. This impressive work will be of great interest to economists, legal scholars, and antitrust policy makers.

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The Consumer Trap
BIG BUSINESS MARKETING IN AMERICAN LIFE
Michael Dawson
University of Illinois Press, 2003
The Consumer Trap blows the lid off the trillion-dollar-a-year business marketing industry, explaining how it continues to soak up economic and environmental resources and dominate the personal lives of citizens. Flouting conventional mainstream and radical thinking about consumer culture, Michael Dawson reveals how corporate marketing embodies and extends into personal life the scientific management principles famously enunciated by Frederick Winslow Taylor, whose earliest disciples predicted the big business marketing revolution.

After revealing why corporate capitalism fuels an ever-increasing marketing race, Dawson provides a step-by-step account of how this behemoth works and expands. Using firsthand evidence, he explains in detail how big business marketing campaigns penetrate and profoundly affect the lives of ordinary Americans.

Dawson argues that if people are to escape the costly consumer trap set by the overclass, they will need to renew class struggle from below, inventing new institutions for democratically governing and implementing major economic decisions. A blueprint for reinventing the study and debate of the sociocultural effects of corporate marketing practices, The Consumer Trap makes big business marketing a target of direct historical and sociological scrutiny.

 

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The Corporate Contract in Changing Times
Is the Law Keeping Up?
Edited by Steven Davidoff Solomon and Randall Stuart Thomas
University of Chicago Press, 2019
Over the past few decades, significant changes have occurred across capital markets. Shareholder activists have become more prominent, institutional investors have begun to wield more power, and intermediaries like investment advisory firms have greatly increased their influence. These changes to the economic environment in which corporations operate have outpaced changes in basic corporate law and left corporations uncertain of how to respond to the new dynamics and adhere to their fiduciary duties to stockholders.
           
With The Corporate Contract in Changing Times, Steven Davidoff Solomon and Randall Stuart Thomas bring together leading corporate law scholars, judges, and lawyers from top corporate law firms to explore what needs to change and what has prevented reform thus far. Among the topics addressed are how the law could be adapted to the reality that activist hedge funds pose a more serious threat to corporations than the hostile takeovers and how statutory laws, such as the rules governing appraisal rights, could be reviewed in the wake of appraisal arbitrage. Together, the contributors surface promising paths forward for future corporate law and public policy.
 
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Courting Failure
How Competition for Big Cases Is Corrupting the Bankruptcy Courts
Lynn Lopucki
University of Michigan Press, 2006
LoPucki's provocative critique of Chapter 11 is required reading for everyone who cares about bankruptcy reform. This empirical account of large Chapter 11 cases will trigger intense debate both inside the academy and on the floor of Congress. Confronting LoPucki's controversial thesis-that competition between bankruptcy judges is corrupting them-is the most pressing challenge now facing any defender of the status quo."
-Douglas Baird, University of Chicago Law School

"This book is smart, shocking and funny. This story has everything-professional greed, wrecked companies, and embarrassed judges. Insiders are already buzzing."
-Elizabeth Warren, Leo Gottlieb Professor of Law, Harvard Law School

"LoPucki provides a scathing attack on reorganization practice. Courting Failure recounts how lawyers, managers and judges have transformed Chapter 11. It uses empirical data to explore how the interests of the various participants have combined to create a system markedly different from the one envisioned by Congress. LoPucki not only questions the wisdom of these changes but also the free market ideology that supports much of the general regulation of the corporate sector."
-Robert Rasmussen, University of Chicago Law School

A sobering chronicle of our broken bankruptcy-court system, Courting Failure exposes yet another American institution corrupted by greed, avarice, and the thirst for power.

Lynn LoPucki's eye-opening account of the widespread and systematic decay of America's bankruptcy courts is a blockbuster story that has yet to be reported in the media. LoPucki reveals the profound corruption in the U.S. bankruptcy system and how this breakdown has directly led to the major corporate failures of the last decade, including Enron, MCI, WorldCom, and Global Crossing.

LoPucki, one of the nation's leading experts on bankruptcy law, offers a clear and compelling picture of the destructive power of "forum shopping," in which corporations choose courts that offer the most favorable outcome for bankruptcy litigation. The courts, lured by big money and prestige, streamline their requirements and lower their standards to compete for these lucrative cases. The result has been a series of increasingly shoddy reorganizations of major American corporations, proposed by greedy corporate executives and authorized by case-hungry judges.
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Deals
The Economic Structure of Business Transactions
Michael Klausner and Guhan Subramanian
Harvard University Press, 2024

Drawing on real-life cases from a wide range of industries, two acclaimed experts offer a sophisticated but accessible guide to business deals, designed to maximize value for your side.

Business transactions take widely varying forms—from multibillion-dollar corporate mergers to patent licenses to the signing of an all-star quarterback. Yet every deal shares the same goal, or at least should: to maximize the joint value created and to distribute that value among the parties. Building on decades of experience teaching and advising on business deals, Michael Klausner and Guhan Subramanian show how to accomplish this goal through rigorous attention to designing incentives, conveying information, and specifying parties’ rights and obligations.

Deals captures the range of real-life transactional complexities with case studies covering Microsoft’s acquisition of LinkedIn, Scarlett Johansson’s contract dispute with Disney over the release of Black Widow, litigation surrounding LVMH’s pandemic-disrupted acquisition of Tiffany, the feud between George Norcross and Lewis Katz over ownership of the Philadelphia Inquirer, NBC/Viacom’s negotiation with Paramount over the final three seasons of Frasier, and many more. In clear, concise terms, Klausner and Subramanian establish the basic framework of negotiation and the economic concepts that must be addressed in order to maximize value. They show how to tackle challenges, such as information asymmetry between buyer and seller, moral hazard, and opportunistic behavior. And the authors lay out responses to common risks associated with long-term contracts, emphasizing that a deal’s exit rights should be carefully considered at the start of transaction design.

Unique in its practical application of economic theory to actual dealmaking, this book will be an indispensable resource for students and for professionals across the business and legal world.

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The Flow of Illicit Funds
A Case Study Approach to Anti–Money Laundering Compliance
Georgetown University Press, 2022

High-profile case studies provide compliance professionals with a deep, holistic understanding of modern-day money laundering to better detect and deter it

Money laundering is a serious crime that presents a heightened, yet underrated, global threat. Although often thought of as a victimless crime, money laundering significantly impacts the global financial system, which leads to further crime, corruption, human exploitation, and environmental degradation and causes tremendous human suffering, especially in the most impoverished populations. Recent advances in technology, communications, and globalization mean there are more illicit funds in circulation today than ever before. In order to catch these criminals and expose their underground networks, compliance professionals must learn to navigate an increasingly complex web of criminal activity.

In The Flow of Illicit Funds, Ola M. Tucker goes beyond the implementation of anti–money laundering compliance programs offered by most guides and provides professionals with a holistic understanding of the modern money laundering system. Using recent case studies, Tucker explains some of the most common money laundering techniques used by criminals today, describes the key role of the financial system in the disguise and transfer of illicit funds, and offers valuable insight into how financial institutions can protect themselves from being used as conduits for the movement of dirty money. The book concludes by offering suggestions to help compliance professionals better detect and deter money laundering.

Through this unique perspective, compliance professionals and students will gain a broader overall understanding of the process of money laundering and the techniques criminals commonly use, including valuable insight into how criminals find legal loopholes and manipulate the financial system.

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Framing Contract Law
An Economic Perspective
Victor Goldberg
Harvard University Press, 2012
The central theme of this book is that an economic framework--incorporating such concepts as information asymmetry, moral hazard, and adaptation to changed circumstances--is appropriate for contract interpretation, analyzing contract disputes, and developing contract doctrine. The value of the approach is demonstrated through the close analysis of major contract cases. In many of the cases, had the court (and the litigators) understood the economic context, the analysis and results would have been very different. Topics and some representative cases include consideration (Wood v. Lucy, Lady Duff Gordon), interpretation (Bloor v. Falstaff and Columbia Nitrogen v. Royster), remedies (Campbell v. Wentz, Tongish v. Thomas, and Parker v. Twentieth Century Fox), and excuse (Alcoa v. Essex).
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Legal Writing in Plain English
A Text with Exercises
Bryan A. Garner
University of Chicago Press, 2001
Admirably clear, concise, down-to-earth, and powerful-unfortunately, these adjectives rarely describe legal writing, whether in the form of briefs, opinions, contracts, or statutes. In Legal Writing in Plain English, Bryan A. Garner provides lawyers, judges, paralegals, law students, and legal scholars sound advice and practical tools for improving their written work. The book encourages legal writers to challenge conventions and offers valuable insights into the writing process: how to organize ideas, create and refine prose, and improve editing skills. In essence, it teaches straight thinking—a skill inseparable from good writing.

Replete with common sense and wit, the book draws on real-life writing samples that Garner has gathered through more than a decade of teaching in the field. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting. Meanwhile, Garner explores important aspects of document design. Basic, intermediate, and advanced exercises in each section reinforce the book's principles. (An answer key to basic exercises is included in the book; answers to intermediate and advanced exercises are provided in a separate Instructor's Manual, free of charge to instructors.) Appendixes include a comprehensive punctuation guide with advice and examples, and four model documents.

Today more than ever before, legal professionals cannot afford to ignore the trend toward clear language shorn of jargon. Clients demand it, and courts reward it. Despite the age-old tradition of poor writing in law, Legal Writing in Plain English shows how legal writers can unshackle themselves.

Legal Writing in Plain English includes:

*Tips on generating thoughts, organizing them, and creating outlines.
*Sound advice on expressing your ideas clearly and powerfully.
*Dozens of real-life writing examples to illustrate writing problems and solutions.
*Exercises to reinforce principles of good writing (also available on the Internet).
*Helpful guidance on page layout.
*A punctuation guide that shows the correct uses of every punctuation mark.
*Model legal documents that demonstrate the power of plain English.
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The Microsoft Case
Antitrust, High Technology, and Consumer Welfare
William H. Page and John E. Lopatka
University of Chicago Press, 2007

In 1998, the United States Department of Justice and state antitrust agencies charged that Microsoft was monopolizing the market for personal computer operating systems.  More than ten years later, the case is still the defining antitrust litigation of our era.  William H. Page and John E. Lopatka’s The Microsoft Case contributes to the debate over the future of antitrust policy by examining the implications of the litigation from the perspective of consumer welfare. 

The authors trace the development of the case from its conceptual origins through the trial and the key decisions on both liability and remedies.  They argue that, at critical points, the legal system failed consumers by overrating government’s ability to influence outcomes in a dynamic market. This ambitious book is essential reading for business, law, and economics scholars as well as anyone else interested in the ways that technology, economics, and antitrust law have interacted in the digital age.

“This book will become the gold standard for analysis of the monopolization cases against Microsoft. . . . No serious student of law or economic policy should go without reading it.”—Thomas C. Arthur, Emory University

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Pay without Performance
The Unfulfilled Promise of Executive Compensation
Lucian Bebchuk and Jesse Fried
Harvard University Press, 2006

The company is under-performing, its share price is trailing, and the CEO gets...a multi-million-dollar raise. This story is familiar, for good reason: as this book clearly demonstrates, structural flaws in corporate governance have produced widespread distortions in executive pay. Pay without Performance presents a disconcerting portrait of managers' influence over their own pay--and of a governance system that must fundamentally change if firms are to be managed in the interest of shareholders.

Lucian Bebchuk and Jesse Fried demonstrate that corporate boards have persistently failed to negotiate at arm's length with the executives they are meant to oversee. They give a richly detailed account of how pay practices--from option plans to retirement benefits--have decoupled compensation from performance and have camouflaged both the amount and performance-insensitivity of pay. Executives' unwonted influence over their compensation has hurt shareholders by increasing pay levels and, even more importantly, by leading to practices that dilute and distort managers' incentives.

This book identifies basic problems with our current reliance on boards as guardians of shareholder interests. And the solution, the authors argue, is not merely to make these boards more independent of executives as recent reforms attempt to do. Rather, boards should also be made more dependent on shareholders by eliminating the arrangements that entrench directors and insulate them from their shareholders. A powerful critique of executive compensation and corporate governance, Pay without Performance points the way to restoring corporate integrity and improving corporate performance.

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Reconstructing Contracts
Douglas G. Baird
Harvard University Press, 2013

Every legal system must decide how to distinguish between agreements that are enforceable and those that are not. Formal bargains in the marketplace and casual promises in a social setting mark the two extremes, but many hard cases lie between. When gaps are left in a contract, how should courts fill them? What does it mean to say that an agreement is legally enforceable? If someone breaks a legally enforceable contract, what consequences follow?

For 150 years, legal scholars have debated whether a set of coherent principles provide answers to such basic questions. Oliver Wendell Holmes put forward the affirmative case, arguing that bargained-for consideration, expectation damages, and a handful of related ideas captured the essence of contract law. The work of the next several generations, culminating in Grant Gilmore’s The Death of Contract in 1974, took a contrary view. The coherence Holmes had tried to bring to the field was illusory. It was more sensible to see contracts as merely a species of civil obligation and resist the temptation to impose rigid and artificial rules.

In Reconstructing Contracts, Douglas Baird takes stock of the current state of contract doctrine and in the process reinvigorates the classic framework of Anglo-American contract law. He shows that Holmes’s principles are fundamentally sound. Even if they lack that talismanic quality formerly ascribed to them, properly understood they continue to provide the best guide to contracts for a new generation of students, practitioners, and judges.

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Regulation versus Litigation
Perspectives from Economics and Law
Edited by Daniel P. Kessler
University of Chicago Press, 2010
 
The efficacy of various political institutions is the subject of intense debate between proponents of broad legislative standards enforced through litigation and those who prefer regulation by administrative agencies. This book explores the trade-offs between litigation and regulation, the circumstances in which one approach may outperform the other, and the principles that affect the choice between addressing particular economic activities with one system or the other. Combining theoretical analysis with empirical investigation in a range of industries, including public health, financial markets, medical care, and workplace safety, Regulation versus Litigation sheds light on the costs and benefits of two important instruments of economic policy.

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