This brief essay is a reply to Professor Steve Schwarcz's essay, "What is Securitization? And for What Purpose?" Professor Schwarcz's essay is a response to my article, "Re: Defining Securitization," 85 S. Cal. L. Rev. 1229 (2012). My reply explores the strengths and weaknesses of Schwarcz's...

Civil liability of rating agencies has to strike a balance between over-deterrence and overly lax behavior control. The resulting problems of a capital market freeze and difficulties of proof, as they become apparent in most legal systems and the European Commission's Draft Proposal to amend the...

Scholars have cataloged rigidities in contract design. Some have observed that boilerplate provisions are remarkably resistant to change, even in the face of shocks such as adverse judicial interpretations. Empirical studies of debt contracts and collateral, in contrast, suggest that covenant...

The use of greenhouse gas emission rights as financial collateral and the feasibility of their enforcement by sale or appropriation raise some issues, such as discerning the legal nature of emission rights under securities law, their suitability for the creation of limited rights and liens...

Notwithstanding the considerable media and regulatory attention private equity receives, there continues to be substantial confusion about what private equity does and whether this creates value. Calls for more aggressive regulation of the industry reflect a skeptical view of private equity as...

This paper considers how agency fiduciary law might be applied to a financial advisor with discretionary trading authority over a client's account. It (i) surveys the agency problem to which the fiduciary obligation is directed; (ii) examines the legal context by considering how the fiduciary...

Fiduciary remedies are notoriously potent. Fiduciaries who profit from their disloyalty are liable to be ordered to disgorge all of their gains. It is widely understood that disgorgement deters disloyalty by threatening removal of gains, the prospect of which might incentivize wrongdoing....

In the bank-borrower setting, a firm's existing lender may exploit its positional advantage to extract rents from the firm in subsequent financings. Analogously, a startup's existing venture capital investors (VCs) may dilute the founder through a follow-on financing from these same VCs (an...

Are corporate charters and bylaws contracts? What is the scope or subject matter of the corporate contract? Is access to litigation part of the bundle of rights that shareholders purchase when they buy shares in a corporation? This book chapter, “Litigation Rights and the Corporate...