ILE Annual Report 2021-2022

INSTITUTE FOR

LAW & ECONOMICS ANNUAL REPORT 2021–22

A Joint Research Center of the Law School, the Wharton School, and the Department of Economics in the School of Arts and Sciences at the University of Pennsylvania

Message from the Co-Chairs: 1 Board of Advisors: 2 Message from the Dean: 6 Message from the Co-Directors: 7 Roundtable Programs: 9 Corporate Roundtable, Spring 2022: 10 Corporate Roundtable, Fall 2021: 12 Corporate Roundtable, Spring 2021: 14 Corporate Roundtable, Fall 2020: 14 Corporate Roundtable, Spring 2020: 16 Corporate Roundtable, Fall 2019: 16

Panel Programs: 19 Conference on Racial Equity in Corporate Governance: 20 Shareholder Agreements, Waivers, and Private Ordering in Corporate Law: 22 The How and Why of Fairness Opinion Committee Practice: 24 Benefit Corporations: Key Developments and Future Directions: 26

Lectures: 29 Distinguished Jurist Lecture & Fireside Chat: 30 Past Lectures: 32

Academic Events: 35 ILE Wharton Finance Seminars: 36 Academic Workshops: 38 Curricular Partnerships: 40

Delaware Oral History Project: 43 Women in Business Law Initiative: 47 Career Arcs of Leaders in Business Law: 48 Women and M&A: 48

Associate Faculty: 51 Publications and Papers: 58

Institute Contributors: 61

MESSAGE FROM THE CO- CHAIRS

The Institute for Law and Economics continues to make significant contributions to scholarship, policy, and practice on important issues that affect our country’s businesses and financial institutions.

I

n the second year of the coronavirus pandemic, the Institute continued to sustain its programs focusing on issues of relevance to the academic, legal, and business communities. This programming enjoys an outstanding international reputation for excellence enabling leaders in business, law, finance and academic scholarship candidly to discuss the intersection of theory and practice on a host of matters. The Institute also expanded its Women in Business Law Initiative, a timely and important expansion of ILE’s mission that has been targeting the support and promotion of women to enhance diversity in business and business law.

On behalf of the Institute’s Board of Advisors, we want to express our gratitude to everyone who has contributed to the achievements of the Institute during this past year. In particular, we would like to thank those members of the Board and their colleagues from their firms who have participated in ILE’s programs and have been a vital component of their success.

We are pleased to welcome Brian Fahrney as a new member of our Board of Advisors this year. An accomplished individual, Brian will greatly enhance the work of the Institute. We also note that Joe is stepping down as Co-Chair of the Board after fourteen years, and we acknowledge our appreciation of his valuable service. Joe will be succeeded as Co-Chair by Jay Clayton, and we welcome Jay to the Board.

All of the members of our Board give graciously to the Institute, not just financially but also of their time and expertise, and we are grateful for their contributions. Very special thanks must be given to ILE benefactor and former Board Chair Bob Friedman. His extraordinary level of financial support enables the Institute to continue to lead the field, and we want to express our sincere appreciation to him.

Jill Fisch and Elizabeth Pollman continue to be truly outstanding leaders of the Institute, all the more so during the challenges of our time. They have been joined this year by new faculty Co-Director Lisa Fairfax, and we welcome her to ILE. The dedication of our Faculty Directors to all aspects of the Institute’s work, and their ability to originate timely programming and attract ideal participants, are the reasons for the continued success of the Institute’s programs. ILE’s leadership is fundamental to its continued success as a forum for substantive discussions of topical issues relevant to corporations and their legal and financial advisors, as well as jurists and academics.

We also want to acknowledge the exceptional contributions of Larry Hamermesh, our Executive Director, and the outstanding efforts of Nadia Jannetta, our Managing Director, in making ILE run so effectively.

JOSEPH B. FRUMKIN Sullivan & Cromwell LLP DAVID M. SILK Wachtell, Lipton, Rosen & Katz September 2022

MESSAGE FROM THE CO-CHAIRS

1

BOARD OF ADVISORS

2

Richard B. Aldridge Morgan, Lewis & Bockius LLP Philadelphia, PA

William D. Anderson, Jr. Senior Managing Director Evercore New York, NY

Marshall B. Babson Seyfarth Shaw LLP New York, NY

Martin J. Bienenstock Proskauer Rose LLP New York, NY

Daniel H. Burch Chairman & CEO MacKenzie Partners, Inc. New York, NY

George A. Casey Shearman & Sterling LLP New York, NY

Charles I. Cogut Co-Chair, 2008–2019 Former Partner Simpson Thacher & Bartlett LLP New York, NY

Steven M. Cohen Founding Member Blue Raven LLP New York, NY

Raymond J. DiCamillo Richards, Layton & Finger, P.A. Wilmington, DE

John DiTomo Morris, Nichols, Arsht & Tunnell LLP Wilmington, DE

Brian Fahrney Sidley Austin LLP Chicago, IL

John G. Finley Senior Managing Director and Chief Legal Officer The Blackstone Group L.P. New York, NY

Joel E. Friedlander Friedlander & Gorris, P.A. Wilmington, DE

Eric J. Friedman Executive Partner Skadden, Arps, Slate, Meagher & Flom LLP New York, NY

Robert L. Friedman Chair, 2001–2007 Senior Advisor The Blackstone Group L.P. New York, NY

Joseph B. Frumkin Co-Chair, 2008–2022 Sullivan & Cromwell LLP New York, NY

INSTITUTE FOR LAW AND ECONOMICS

BOARD OF ADVISORS

Daniel M. Gallagher Chief Legal Officer Robinhood Washington, D.C.

Eduardo Gallardo Gibson, Dunn & Crutcher LLP New York, NY

Joseph D. Gatto Founder and Managing Partner Orient Point Partners New York, NY

Perry Golkin Chief Executive Officer PPC Enterprises LLC New York, NY

Mark I. Greene Cravath, Swaine & Moore LLP New York, NY

William R. Harker Co-Founder and President Ashe Capital Management, LLC Old Tappan, NJ

Erik T. Hoover Senior Vice President and General Counsel DuPont Wilmington, DE

Sarkis Jebejian Kirkland & Ellis LLP New York, NY

Gaurav Jetley Managing Principal Analysis Group New York, NY

Cynthia B. Kane Special Assistant to the Secretary of State Delaware Department of State Wilmington, DE

Roy J. Katzovicz Chairman Saddle Point Group, LLC New York, NY

Meredith Kotler Freshfields Bruckhaus Deringer US LLP New York, NY

Mark Lebovitch Bernstein Litowitz Berger & Grossmann LLP New York, NY

Daniel Lee Managing Director Moelis & Company Los Angeles, CA

Kenneth A. Lefkowitz Hughes Hubbard & Reed LLP New York, NY

Martin S. Lessner Young Conaway Stargatt & Taylor, LLP Wilmington, DE

BOARD OF ADVISORS

3

BOARD OF ADVISORS

4

Ted S. Lodge Partner – Global Head Restructurings and Turnarounds GoldenTree Asset Management, LP New York, NY

Scott B. Luftglass Fried Frank New York City, NY

Jennifer Marietta-Westberg Principal Cornerstone Research Washington, D.C.

William P. Mills Cadwalader, Wickersham & Taft LLP New York, NY

Mark A. Morton Potter Anderson & Corroon, LLP Wilmington, DE

Jennifer Muller Managing Director Houlihan Lokey San Francisco, CA

Robert H. Mundheim Shearman & Sterling LLP New York, NY

Henry N. Nassau Dechert LLP Philadelphia, PA

Ian A. Nussbaum Cooley LLP New York, NY

James A. Ounsworth Managing Partner The S Consulting Group Philadelphia, PA

Morton A. Pierce White & Case LLP New York, NY

Helen P. Pudlin Retired Executive Vice President and General Counsel PNC Financial Services Group Bryn Mawr, PA

Michael Reilly Executive Vice President, General Counsel and Secretary FMC Corporation Philadelphia, PA

Myron J. Resnick Retired Senior Vice President and Chief Investment Officer Allstate Insurance Company Northbrook, IL

Anne Robinson Managing Director, General Counsel and Corporate Secretary Vanguard Wayne, PA

Jeffrey J. Rosen Debevoise & Plimpton LLP New York, NY

INSTITUTE FOR LAW AND ECONOMICS

BOARD OF ADVISORS

Jennifer Shotwell Founding Managing Director Innisfree M&A Incorporated New York, NY

David M. Silk Co-Chair, 2019– Wachtell, Lipton, Rosen & Katz New York, NY

Amy L. Simmerman Wilson Sonsini Goodrich & Rosati Wilmington, DE

Richard D. Smith Holland & Knight LLP New York, NY

Joseph A. Stern Managing Director; M&A Advisory General Counsel Goldman Sachs & Co. New York, NY

Hon. Leo E. Strine, Jr. Chief Justice, Supreme Court of Delaware, 2014 -2019 Wachtell, Lipton, Rosen & Katz New York, NY

John J. Suydam Chief Legal and Compliance Officer Apollo Global Management, LLC New York, NY

Eric M. Swedenburg Simpson Thacher & Bartlett LLP New York, NY

Hon. E. Norman Veasey Chief Justice, Supreme Court of Delaware, 1992-2004 Gordon, Fournaris & Mammarella, P.A. Wilmington, DE

Peter L. Welsh Ropes & Gray LLP Boston, MA

Jennifer Zachary Executive Vice President and General Counsel Merck & Co., Inc. Kenilworth, NJ

BOARD OF ADVISORS

5

MESSAGE FROM THE DEAN

For almost four decades, the Institute for Law and Economics has successfully demonstrated the benefits of cross-disciplinary perspectives.

I

LE’s programming is a model for building bridges between disciplines and for creating ties among schools, faculty members, students, and experts in the field. ILE combines Penn’s greatest strengths in the Law School, the Wharton School, and the Department of Economics to focus on complex and timely questions. ILE proves that bringing a diverse group of experts together — judges, deal-makers, regulators, business leaders, lawyers, bankers, policymakers, academics, and more—generates important and original insights.

In addition to its unique focus, another of the Institute’s strengths is the variety of programs it offers. The roundtables — ILE’s signature events — bring together distinguished members of the bar, judiciary, government, business world, and academia for open discussion and intellectual exploration. ILE’s public lectures by leading jurists, executives, and entrepreneurs attract participants from all sectors of the University and from the wider community.

During the past year, the outstanding talks, panels, and conferences organized by the Institute covered a wide range of topics, including shareholder agreements, waivers, and private ordering in corporate law, fairness opinion committee practice, state and federal developments on ESG, the career arcs of leaders in business law, women and M&A, retail shareholders and voting, and continuing the conversation about racial equity in corporate governance.

ILE managed the challenge of the ups and downs of the continuing pandemic offering most of its programming in person, while still taking advantage of the benefit of virtual programming.

We are proud of the generous support ILE receives from the many corporations, law firms, investment banks and other contributors who understand the importance of what we do and the unique position the Institute holds. Many of the ILE contributors also serve as members of the Institute’s Board of Advisors, helping to plan the direction and focus of the programs and lending their expertise as panelists and commentators for ILE events.

We owe a particular debt of gratitude to ILE’s extraordinary co-chairs, Joe Frumkin (L’85) and David Silk (L’88), for their many exceptional contributions. Like all who serve as advisors for ILE, Joe and David have contributed their very valuable time and expertise, in addition to drawing on their numerous contacts in the legal and business communities. ILE has benefited substantially from their leadership. We offer a special thank you to Joe as he steps down as a co-chair after fourteen years of incredible service. While his successor, Jay Clayton (L’93), has big shoes to fill, we are confident that Jay, together with David, will continue the great leadership.

I also thank the three eminent professors who have led the Institute for Law and Economics—Jill Fisch, Elizabeth Pollman, and Lisa Fairfax. It is because of their commitment that ILE ranks among the premier institutions of its kind. I expect the Institute to continue to grow and prosper under their direction supported by the enthusiastic efforts of Larry Hamermesh, the Executive Director. I extend the deepest appreciation to all ILE supporters and participants for their commitment and investment over the years.

Finally, it is with gratitude—as well as some melancholy—that I express our collective appreciation and best wishes to ILE's Managing Director Nadia Jannetta, who has been essential to ILE's smooth functioning over many years and will be continuing to work on similar issues at NYU beginning later this summer. Thank you Nadia and best of luck!

THEODORE RUGER, Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Carey Law School June 2022

6

INSTITUTE FOR LAW AND ECONOMICS

MESSAGE FROM THE DIRECTORS

W

e are pleased to provide an update on the wonderfully productive 2021-2022 academic year. Although the pandemic continued to pose challenges, we were delighted to host a wide range of exciting programs and to hold many events in person this year.

At the Institute for Law and Economics (ILE), we are guided by our founding mission to provide a venue for high-level conversations about important and timely issues in corporate law and business among practitioners, lawmakers, and academics. ILE’s signature Corporate Roundtables continued our distinctive focus on bridging academia and practice, and as ever, were highlights of the year. The fall and spring Corporate Roundtables each featured two academic papers and a roundtable with a diverse group of experts bringing a variety of perspectives. In the fall, the first paper examined the ESG accountability concern through the lens of voluntary ESG disclosure. The second paper provided an overview of contemporary evidence that climate change and the transition to a net-zero emissions economy presents financial risks that could give rise to director oversight liability. The afternoon panelists discussed recent state and federal developments on ESG. In the spring, the first paper, which studied retail shareholder voting using a nearly comprehensive sample of U.S. ownership and voting records, found evidence that retail shareholders used their voting power to monitor firms and communicate with incumbent boards and management. The second paper argued that asset managers adopt rules that resemble regulation in attempting to shape corporate activity on environmental and social issues and explored the financial incentives that motivate asset managers to do so. The afternoon panel discussed retail shareholders and voting.

In addition to the Corporate Roundtables, we convened a great mix of virtual and in-person events and pushed forward our work on multiple projects and initiatives. Using a format we developed last year in the heart of the lockdown, we hosted a virtual discussion program in which discussion leaders and a limited group of participants engaged in a conversation about shareholder agreements, waivers, and private ordering in corporate law, a conversation inspired by the issuance of the Manti opinion.

ILE also hosted two virtual academic workshops, as well as a half-day in-person academic workshop with four working papers. This series of workshops expanded opportunities for engagement with cutting-edge research and offered presenters the opportunity to obtain feedback on work in progress from scholars and practitioners with relevant subject matter expertise.

We resumed the Distinguished Jurist Lecture, which was presented by Penn Law alumnae Justice Karen Valihura (L’88) of the Delaware Supreme Court who provided her perspective on principles that are important in crafting judicial decisions at the appellate level.

Following on last year’s conference on Racial Equity in Corporate Governance, ILE again collaborated with research centers at Columbia Law School and Stanford Law School for a virtual program focused on the steps that boards can take to promote racial equity in public and private companies.

We also celebrated the completion of the Delaware Oral History Project, which was accomplished through the leadership of our Executive Director, Larry Hamermesh. This project, in which many of our Board members have participated, has produced a website repository of oral histories of the landmark Delaware corporate cases and legislative developments since the 1967 revision of the Delaware General Corporation Law. It is linked with The Lipton

Archive, a living corporate law and governance history site focusing on the thought leadership of Marty Lipton, which was launched last year with substantial contribution from Wachtell Lipton Rosen & Katz.

ILE also hosted a program on the business characteristics that lend themselves to the public benefit corporation form. The program used the story of how Allbirds became a publicly held public benefit corporation as the starting point for the lively discussion.

Finally, ILE, together with its Women in Business Law Initiative, an effort to promote the development and advancement of women in business law, sponsored two programs this year.

The first was a look at the career paths of five successful women lawyers. The second program addressed the gender disparities in M&A. As in the past, our Institute’s greatest resource is the quality of our supporters and their active participation in our programs. Our board members and sponsors play a critical role in developing our programs as well as providing valuable financial support. We continued to benefit from the generous involvement of our board chairs, Joseph Frumkin of Sullivan & Cromwell LLP and David Silk of Wachtell Lipton Rosen & Katz. We thank Joe for his outstanding fourteen years of service as he steps down as co-chair. Joe has been an incredible leader and his informed and gracious guidance will be missed. We welcome his partner and Penn Law alum Jay Clayton (L’93) as David’s new co-chair and we look forward to benefitting from Jay’s leadership. We are also pleased to welcome a new board member this year: Brian Fahrney, Sidley Austin LLP. We appreciate your contributions to the Institute’s continued success.

LISA M. FAIRFAX, Co-Director, Institute for Law and Economics; Presidential Professor of Law JILL E. FISCH, Co-Director, Institute for Law and Economics; Saul A. Fox Distinguished Professor of Business Law ELIZABETH POLLMAN, Co-Director, Institute for Law and Economics; Professor of Law LAWRENCE A. HAMERMESH, Executive Director, Institute for Law and Economics NADIA M. JANNETTA, Managing Director, Institute for Law and Economics June 2022

MESSAGE FROM THE DIRECTORS

7

ROUNDTABLE PROGR AMS At the heart of the Institute’s work is the roundtable series, which brings members of the Institute’s associate faculty and other academics together with corporate executives, practicing attorneys, judges, and public policymakers. Each roundtable takes up current issues that emerge from the research and teaching of the Institute and provides a forum for lively discussion.

Over the years, the Institute’s roundtables on corporate law, governance, and finance have engaged the interest and participation not only of scholars but also of leaders in the business and public sectors.

The high caliber of the participants guarantees that each roundtable is intense and informative. ILE’s longstanding off-the-record policy for the roundtables is often the impetus for an energetic and wideranging exchange of ideas among some of the nation’s most accomplished scholars, attorneys, and business people.

ROUNDTABLE PROGRAMS

9

CORPORATE ROUNDTABLE

MAY 6, 2022

Welcome

Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School

Morning Session Retail Shareholder Participation in the Proxy Process: Monitoring, Engagement, and Voting Alon Brav, Duke University – Fuqua School of Business Matthew D. Cain, Berkeley Center for Law and Business Jonathon Zytnick, Fellow, Institute for Corporate Governance and Finance, New York University School of Law

com m e n tat or s Adriana Robertson, Honourable Justice Frank Iacobucci Chair in Capital Markets Regulation and Associate Professor of Law and Finance, University of Toronto Faculty of Law Gaurav Jetley, Managing Principal, Analysis Group

Asset Managers as Regulators Dorothy Lund, Associate Professor, USC Gould School of Law

com m e n tat or s Cathy Hwang, Barron F. Black Research Professor of Law, University of Virginia School of Law John Galloway, Principal and Investment Stewardship Officer, Vanguard

Afternoon Session Retail Shareholders and Voting mode r at or s Lisa Fairfax, Presidential Professor of Law, University of Pennsylvania Carey Law School Elizabeth Pollman, Professor of Law, University of Pennsylvania Carey Law School

pa n e l i s t s Ray Cameron, Managing Director-Institutional Client Business, BlackRock Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School Daniel Gallagher, Chief Legal Officer, Robinhood Keir Gumbs, Chief Legal Officer, Broadridge Financial Solutions, Inc. Gabrielle E. Wolf, Director, Innisfree M&A Incorporated

10

INSTITUTE FOR LAW AND ECONOMICS

Retail Shareholder Participation in the Proxy Process: Monitoring, Engagement, and Voting Jonathon Zytnick, Fellow, Institute for Corporate Governance and Finance, New York University School of Law The authors study retail shareholder voting using a nearly comprehensive sample of U.S. ownership and voting records. Analyzing turnout within a rational-choice framework, they find participation increases with ownership and expected benefits from winning and decreases with higher costs of participation. Even shareholders with a negligible likelihood of affecting the outcome have non-zero turnout, consistent with consumption benefits from voting. Conditional on participation, retail shareholders punish the management of poorly performing firms. Overall, their evidence provides support for the idea that retail shareholders utilize their voting power to monitor firms and communicate with incumbent boards and management.

Asset Managers as Regulators Dorothy Lund, Associate Professor, USC Gould School of Law The emergence of large, diversified institutional shareholdings – notably the “Big Three,” Vanguard, State Street, and BlackRock – has empowered shareholders to fill the regulatory gap left by governmental failure to constrain corporate activity that harms the public. They have adopted sweeping board diversity mandates, as well as “ESG” disclosure and carbon emission reduction requirements, and enforced them through their proxy voting policies. This Article offers a theory about the incentives that shape these regulatory interventions: namely, that asset managers will supply regulation only if it has a positive impact on their profits. Therefore, demand from their clients, both individuals and institutions, will govern the choice of policies and the substance of their rules. Given the breadth of the Big Three’s clientele and their interest in avoiding government backlash, their policies are likely to take many interests into account. Nonetheless, serious concerns loom large, including the fact that for profit asset managers lack democratic accountability and oversight for their policymaking, with no guarantee that it will further the public interest. To the extent that their policies are shaped by the corporate clients that provide much of their AUM, they are unlikely to be as impactful as many perceive. The provision of regulation by asset managers may also take pressure off the government to respond to these issues with policies better calibrated toward advancing social welfare. Therefore, it is critically important to investors, corporations, and the public to understand the forces that shape the privatization dynamic that the Article describes.

1 First row: Ray Cameron, BlackRock; Gabrielle Wolf, Innisfree M&A Incorporated; Second row: Sarah Haan, Washington & Lee University School of Law; Charles O’Kelley, Berle Center, Seattle University; Jeff Schwartz, University of Utah S.J. Quinney College of Law

1

2

2 Glenn Booraem, Vanguard; Roy Katzovicz, Saddle Point Management, L.P 3 Gaurav Jetley, Analysis Group 4 Dorothy Lund, USC Gould School of Law 5 John Galloway, Vanguard 6 First row: Jill Fisch, University of Pennsylvania Carey Law School; Daniel Gallagher, Robinhood; Keir Gumbs, Broadridge Financial Solutions, Inc.; Second row: Donna Nagy, Indiana University Maurer School of Law; Simone Sepe, University of Arizona James E. Rogers College of Law 7 Adriana Robertson, University of Toronto Faculty of Law 8 Jonathon Zytnick, Institute for Corporate Governance and Finance, NYU School of Law 9 Cathy Hwang, University of Virginia School of Law

3

4

5

6

7

8 ROUNDTABLE PROGRAMS

11

CORPORATE ROUNDTABLE

DECEMBER 10, 2021

Welcome

Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School

Morning Session Voluntary ESG Reporting and Accountability: A Proposal For Reform Lisa Fairfax, Presidential Professor of Law, University of Pennsylvania Carey Law School

com m e n tat or s Robert J. Jackson, Jr., Pierrepont Family Professor of Law, New York University School of Law David M. Silk, Wachtell, Lipton, Rosen & Katz

Fiduciary Duties and Climate Change in The United States Cynthia Williams, Senior Scholar and former inaugural Osler Chair in Business Law, Osgoode Hall Law School Sarah Barker, Head of Climate Risk Governance, MinterEllison Alex Cooper, Lawyer, Commonwealth Climate and Law Initiative

com m e n tat or s Brett McDonnell, Professor of Law, University of Minnesota Law School Mark Lebovitch, Bernstein Litowitz Berger & Grossman LLP Martin S. Lessner, Young Conaway Stargatt & Taylor, LLP

Afternoon Session State and Federal Developments on ESG mode r at or s

Lisa Fairfax, Presidential Professor of Law, University of Pennsylvania Carey Law School The push for corporate focus on environmental, social, and governance (“ESG”) matters appears to have finally reached a tipping point. This tipping point is reflected in an emerging consensus from an increasingly broad and diverse range of actors in the business and investment community on the propriety of ESG. Such actors include not only influential and decidedly mainstream investors, asset managers, and business executives, but also investors previously unaligned with, if not outright opposed to, advocating for a corporate focus on ESG. Importantly, the consensus is that ESG is about "value" and not "values." In other words, proponents of ESG contend that ESG is consistent with long-term shareholder value, and that the failure to focus on ESG poses significant risks to the corporation and its bottom line. Alas, the increased focus on ESG has come with increased concerns around accountability. How can we hold corporations accountable to their ESG commitments and ensure that corporate ESG commitments are not greenwashing or window-dressing? This article examines the ESG accountability concern through the lens of voluntary ESG disclosure. This article argues that voluntary ESG disclosure is an important, but all too often overlooked, accountability measure. Our federal securities laws are premised on the value of disclosure. It is therefore no surprise that shareholders and other stakeholders have pushed for ESG disclosure. This push has translated into a dramatic rise in voluntary ESG disclosure—today some 90% of large companies voluntarily publish ESG information. Unfortunately, most dismiss voluntary ESG disclosure as an accountability measure not only because voluntary ESG disclosure is often viewed as inaccurate and unreliable, but also because impending mandatory ESG disclosure appears to render voluntary ESG disclosure irrelevant and obsolete. This article insists that the dismissal of voluntary ESG disclosure is a mistake and a missed opportunity. In so doing, this article makes the affirmative case for the importance of voluntary ESG disclosure as a source of accountability for ESG commitments. This article also identifies several mechanisms for enhancing the reliability and accuracy of voluntary ESG disclosure so that we can more effectively harness the untapped potential of the voluminous amount of voluntary ESG information being disclosed.

Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School Elizabeth Pollman, Professor of Law, University of Pennsylvania Carey Law School

Fiduciary Duties and Climate Change in the United States

pa n e l i s t s

Cynthia Williams, Senior Scholar and former inaugural Osler Chair in Business Law, Osgood Hall Law School

Marsha Dixon, Associate General Counsel, Nasdaq Sarah C. Haan, Professor of Law, Washington and Lee University School of Law Hon. Kathaleen St. J. McCormick, Chancellor, Delaware Court of Chancery Lori Heinel, Executive Vice President, Global Chief Investment Officer, State Street Global Advisors Keith F. Higgins, Ropes & Gray LLP Luigi Zingales, Robert C. McCormack Professor of Entrepreneurship and Finance, University of Chicago Booth School of Business

12

Voluntary ESG Reporting and Accountability: A Proposal for Reform

INSTITUTE FOR LAW AND ECONOMICS

Our understanding of climate change has evolved from an “ethical, environmental” issue to one that presents foreseeable financial and systemic risks (and opportunities) over mainstream investment horizons. This evolution has substantially changed the relevance of climate change to the governance of corporations. A critical corollary of that evolution is that there are implications for the fiduciary duties of directors and officers. This report provides an overview of contemporary evidence that climate change and the transition to a net-zero emissions economy presents foreseeable, material, and systemic financial risks that will affect corporations. It considers that evidence in the context of directors’ and officers’ fiduciary duties under Delaware law, particularly in light of recent case law on the duty of oversight. In so doing, it sets out the practical circumstances in which a failure by directors or officers to have adequate regard to climate change-related issues could fail to satisfy the standard of conduct required to fulfil their duties and lead to potential litigation and liability exposures.

1 Lisa Fairfax, University of Pennsylvania Carey Law School 2 David Silk, Wachtell, Lipton, Rosen & Katz: 3 Robert Jackson, NYU School of Law 4 Cynthia Williams, Osgoode Hall Law School, York University 5 First row: Lisa Fairfax, University of Pennsylvania Carey Law School; Mark Lebovitch, Bernstein Litowitz Berger & Grossman LLP; Martin Lessner, Young Conaway Stargatt & Taylor, LLP; Brett McDonnell, University of Minnesota Law School; Joseph Frumkin, Sullivan & Cromwell LLP; Second row: Emilie Aguirre, Duke University School of Law; Matthew Jennejohn, BYU Law School; Harwell Wells, Temple University Beasley School of Law; Robert Miller, The University of Iowa College of Law; Amelia Miazad, UC Berkeley Law School

1

2

6 First row: Marsha Dixon, Nasdaq; Luigi Zingales, University of Chicago Booth School of Business; Lori Heinel, State Street Global Advisors; Second row: Urska Velikonja, Georgetown University Law Center; Elisabeth de Fontenay, Duke University School of Law

3

7 First row: Keith Higgins, Ropes & Gray LLP; Hon. Lori Will, Delaware Court of Chancery; Second row: Omari Simmons, Wake Forest University School of Law 8 First row: Lori Heinel, State Street Global Advisors; Hon. Kathaleen McCormick, Delaware Court of Chancery; Sarah Haan, Washington & Lee University School of Law; Second row: Adam Pritchard, University of Michigan Law School; Donna Nagy, Indiana University Maurer School of Law; Cathy Hwang, University of Virginia School of Law; Frederick Tung, Boston University School of Law

4

5

6

7

9

ROUNDTABLE PROGRAMS

13

CORPORATE ROUNDTABLE

MAY 7, 2021

Tech and M&A: New Developments, New Challenges

Bringing together the perspectives of investment banking, legal practice (in-house and outside), regulatory authority, and academia, this panel focused on developments in tech M&A.

mode r at or s

The panel began with a discussion of recent market activity, drivers, and trends, as well as the challenges posed by competitive bids, antitrust enforcement, and national security and CFIUS scrutiny. The legal practitioners addressed deal flow and deal terms, and the impact of securities-related litigation and regulatory scrutiny. Litigation considerations drew significant attention from the panelists, particularly in the areas of de-SPAC mergers, controller transactions (the “MFW creep” issue), and inter-VC disputes that pose risks for an acquirer.

Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School Elizabeth Pollman, Professor of Law, University of Pennsylvania Carey Law School

pa n e l i s t s Luke Bergstrom, Latham & Watkins LLP Herbert Hovenkamp, James G. Dinan University Professor, University of Pennsylvania Carey Law School Jamie Leigh, Cooley LLP Neela Morrison, Senior Counsel – Corporate, Google LLC Noah Phillips, Commissioner, Federal Trade Commission Colin Ryan, Managing Director – Technology Investment Banking, Goldman Sachs & Co.

The discussion about regulatory scrutiny included focus on data and platforms, nascent competitors, and an overview of antitrust developments in the Biden administration such as debate about the reconsideration of merger policy by Congress, agencies, and the courts. Further, the discussion included observations about private and state merger challenges, and the likelihood that challenges to mergers would invoke section 2 of the Sherman Act instead of section 7 of the Clayton Act.

DECEMBER 10, 2020

Welcome

Theodore W. Ruger, Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Carey Law School

Morning Session Reconsidering the Evolutionary Erosion Account of Corporate Fiduciary Law William W. Bratton, Nicholas F. Gallicchio Professor of Law Emeritus, University of Pennsylvania Carey Law School

com m e n tat or s Robert B. Thompson, Peter P. Weidenbruch, Jr. Professor of Business Law, Georgetown University Law Center John Mark Zeberkiewicz, Richards, Layton & Finger, P.A.

Corporate Law For Good People Gideon Parchomovsky, Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Carey Law School Yuval Feldman, The Mori Lazarof Professor of Legal Research, Bar-Ilan University Faculty of Law Adi Libson, Lecturer, Bar-Ilan University Faculty of Law

com m e n tat or s Eugene Soltes, Professor of Business Administration, Harvard Business School Sarah Coyne, Weil, Gotshal & Manges LLP

14

INSTITUTE FOR LAW AND ECONOMICS

Afternoon Session IPOS, SPACS, and Direct Listings: Capital Formation Market Trends and Developments mode r at or s Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School Elizabeth Pollman, Professor of Law, University of Pennsylvania Carey Law School

pa n e l i s t s Daniel Gallagher, Chief Legal Officer, Robinhood Pamela Marcogliese, Freshfields Bruckhaus Deringer LLP Michael Klausner, Nancy and Charles Munger Professor of Business and Professor of Law, Stanford Law School Richard Segal, Cooley LLP Allison Berry Spinner, Wilson Sonsini Goodrich & Rosati Michael Ohlrogge, Assistant Professor of Law, New York University School of Law

1 William W. Bratton, University of Pennsylvania Carey Law School 2 Gideon Parchomovsky, University of Pennsylvania Carey Law School

1

3 Pamela Marcogliese, Freshfields Bruckhaus Deringer LLP

2

4 Sarah Coyne, Weil, Gotshal & Manges LLP 5 Daniel Gallagher, Robinhood 6 Richard Segal, Cooley LLP 7 Allison Berry Spinner, Wilson Sonsini Goodrich & Rosati 8 Michael Klausner, Stanford Law School 3

4

9 Michael Ohlrogge, New York University School of Law

5

10 Colin Ryan, Goldman, Sachs & Co. 11 Neela Morrison, Google LLC 12 Herbert Hovenkamp, University of Pennsylvania Carey Law School 13 Jamie Leigh, Cooley LLP 14 Noah Phillips, Federal Trade Commission 15 Luke Bergstrom, Latham & Watkins

6

7

8

9

10

11

12

13

14

15

ROUNDTABLE PROGRAMS

15

CORPORATE ROUNDTABLE

MAY 8, 2020

Welcome

Theodore W. Ruger, Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Carey Law School

Securities Intermediation and Technological Changes: Loaning, Owning & Voting mode r at or s Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School Lawrence A. Hamermesh, Executive Director, Institute for Law and Economics, University of Pennsylvania Carey Law School

DECEMBER 13, 2019

Welcome

Theodore W. Ruger, Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Carey Law School

Morning Session Adoption of CSR and Sustainability Reporting Standards: Economic Analysis and Review Luzi Hail, Professor of Accounting, The Wharton School Hans Christensen, Professor of Accounting, University of Chicago – Booth School of Business Christian Leuz, Joseph Sondheimer Professor of International Economics, Finance and Accounting, University of Chicago – Booth School of Business

com m e n tat or s Alan B. Horowitz, Principal and Managing Director, Trusted Companies, LLC and Senior Advisor, The Shareholder Commons Cynthia Williams, Osler Chair in Business Law, Osgoode Hall Law School York University

Reconciling Fiduciary Duty and Social Conscience Max M. Schanzenbach, Seigle Family Law Professor, Northwestern Pritzker School of Law Robert H. Sitkoff, John L. Gray Professor of Law, Harvard Law School

com m e n tat or s Yves Denizé, Senior Managing Director, Division General Counsel, Nuveen Aaron Yoon, Kellogg School of Management at Northwestern University

16

INSTITUTE FOR LAW AND ECONOMICS

pa n e l i s t s Alex Lebow, Co-Founder, Say Charles W. Mooney, Jr., Charles A. Heimbold, Jr. Professor of Law, University of Pennsylvania Carey Law School Warren Pennington, Principal, Vanguard Mark Smith, CEO, Symbiont Michael Tae, Senior Vice President of Corporate Strategy, Broadridge Financial Solutions, Inc.

Ted Yu, Chief, Office of Mergers & Acquisitions, U.S. Securities and Exchange Commission

Afternoon Session Sustainability and Value mode r at or s William W. Bratton, Nicholas F. Gallichio Professor of Law, University of Pennsylvania Carey Law School Lawrence A. Hamermesh, Executive Director, Institute for Law and Economics, University of Pennsylvania Carey Law School

pa n e l i s t s Alexa A. Dembek, Chief Technology & Sustainability Officer, DuPont Elissa Doyle, Chief Communications Officer and Head of ESG Engagement, Third Point LLC Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School Keir Gumbs, Associate General Counsel, Global Corporate, M&A and Securities and Deputy Corporate Secretary, Uber Technologies, Inc. Peter Michelsen, Managing Director – Head of Activism and Shareholder Advisory (Americas), Goldman Sachs Michael Reilly, Executive Vice President, General Counsel and Secretary, FMC Corporation

1 Front row: Michael Reilly, FMC Corporation; Second row: Aaron Yoon, Kellogg School of Management at Northwestern University; Michael Klausner, Stanford Law School; Christine Hurt, BYU J. Reuben Clark Law School 2 Front row: Peter Michelsen, Goldman Sachs; Elissa Doyle, Third Point LLC; David Silk, Wachtell, Lipton, Rosen & Katz 3 Alexa Dembek, DuPont 4 Keir Gumbs, Uber Technologies, Inc. 5 Charles Mooney, University of Pennsylvania Carey Law School

1

6 Michael Tae, Broadridge Financial Solutions, Inc. 7 Mark Smith, Symbiont 8 Ted Yu, U.S. Securities and Exchange Commission 9 Warren Pennington, Vanguard 10 Alex Lebow, Say

2

3

4

5

6

7

8

9

10

ROUNDTABLE PROGRAMS

17

PANEL PROGR AMS In addition to the roundtable series, the Institute hosts several panel programs each year that explore important topics in the areas of law, business, finance, and corporate governance. In the public programs, the panelists provide expert insights from research and practice and a lively exchange of ideas on the topic at hand. In the smaller, invitation-only programs, designated discussants guide an in-depth conversation among all the participants.

PANEL PROGRAMS

19

CONFERENCE ON RACIAL EQUIT Y IN CORPORATE GOVERNANCE In cooperation with the Ira M. Millstein Center for Global Markets and Corporate Ownership, Columbia Law School and the Arthur and Toni Rembe Rock Center for Corporate Governance, Stanford University and Stanford Center for Racial Justice, Stanford Law School, the Institute presented a series of three programs addressing issues of racial equity in corporate governance. The collaboration was inspired by former Chief Justice Leo E. Strine, Jr. Building on our inaugural conference series, we convened business leaders and top legal thinkers to focus on steps that boards can take to promote racial equity in public and private companies. We explored board diversity and director pipeline generation, board culture and inclusion, and board oversight of racial equity in the corporation.

MARCH 4, 2022

The Role of the Public Company Board of Directors in Promoting Racial Equity in Corporate Governance The first of three panels examined how public company boards of directors promote board diversity and an inclusive board culture, and how they oversee promotion of racial equity in the corporation.

The third session examined board leadership on racial equity at private companies. The discussion explored topics such as the key differences between private and public companies that bear on boardroom culture and leadership on racial equity, contractual and other market-driven diversity initiatives, and talent management and recruitment in the private company context.

pa n e l i s t s

George Brown, Executive Director, Stanford Center for Racial Justice

Lyuba Goltser, Partner and Co-Head of Public Company Advisory Group, Weil, Gotshal & Manges LLP Lisa Lambert, Director, UL, Laredo Petroleum, Inc, and Pathr.ai; Chief Technology and Innovation Officer, National Grid, and Founder and President, National Grid Partners Sean Mendy, Partner, Concrete Rose Capital Ann Shepherd, Co-Founder and COO, Him For Her; Board Member, HoneyBook James D. White, Executive Chair, Air Protein; Board Chair, The Honest Company; Director, Schnuck Markets and Bay Club; Former Chair, CEO, and President, Jamba Juice

Fireside Chat

mode r at or

pa n e l i s t s Benjamin Colton, Global Head of Asset Stewardship, Voting & Engagement, State Street Global Advisors Maria Elena Lagomasino, Lead Independent Director, The Coca-Cola Company; Director, The Walt Disney Company; CEO and Managing Partner, WE Family Offices Barry Lawson Williams, Retired Investment Consultant and Corporate Director

mode r at or

The second presentation was a fireside chat about board leadership on racial equity across public and private companies, featuring: Joe Bae, Co-CEO, KKR Lisa Fairfax, Presidential Professor and Co-Director, Institute for Law and Economics, University of Pennsylvania Carey Law School

20

Opening the Door to Private Company Boardrooms

INSTITUTE FOR LAW AND ECONOMICS

Professor Kate Judge, Harvey J. Goldschmid Professor of Law, Columbia Law School

1 Maria Elena Lagomasino, The Coca-Cola Compnay, Walt Disney Company, and WE Family Offices 2 George Brown, Stanford Center for Racial Justice 3 Barry Lawson Williams, Retired Investment Consultan and Corporate Director 4 Benjamin Colton, State Street Global Advisors 5 Joe Bae, KKR 6 Sean Mendy, Concrete Rose Capital 1

7 Lisa Fairfax, University of Pennsylvania Carey Law School

2

8 Lyuba Goltser, Weil, Gotshal & Manges LLP 9 Kate Judge, Columbia Law School 10 James White, Air Protein, The Honest Company, Schnuck Markets, and Bay Club, and, formerly, Jamba Juice 11 Ann Shepherd, Him for Her 12 Lisa Lambert, National Grid Partners

3

4

5

6

9

7

10

8

11

12

PANEL PROGRAMS

21

PANEL PROGRAMS

NOVEMBER 19, 2021

Shareholder Agreements, Waivers, and Private Ordering in Corporate Law The Delaware Supreme Court’s recent Authentix opinion highlighted a core issue of corporate law: whether and under what circumstances shareholder rights can be waived through a shareholder agreement. This program addressed various facets of that question, beginning with the subject of the Authentix case: waivers of appraisal rights. The discussants described the transactional contexts in which those waivers are seen, and their relation to more traditional drag-along rights. They noted that the practice regarding the use of these waivers reflect less a difference about geography (West Coast vs. East Coast) than about transactional context (venture capital/startup vs. private equity acquisitions).

The discussion then turned to concerns about the effectiveness of waivers, distinguishing closely negotiated transactions with sophisticated investors (such as the transaction at issue in Authentix) from stock option agreements with large numbers of relatively unsophisticated employees. Participants then considered how far waivers might extend to other stockholder rights, notably statutory rights to inspect corporate books and records, and even rights to litigate claims of breach of fiduciary duty.

Finally, the program addressed whether the Authentix case pointed out a need for statutory clarification regarding the permissible scope of waivers of stockholder rights, or whether incremental adjudication would be preferable.

22

INSTITUTE FOR LAW AND ECONOMICS

mode r at or Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School

di sc us s a n t s Herbert P. Fockler, Wilson Sonsini Goodrich & Rosati Joshua D. Geffon, Fenwick & West LLP Allison L. Land, Skadden, Arps, Slate, Meagher & Flom, LLP Thomas A. Mullen, Potter Anderson & Corroon LLP John Mark Zeberkiewicz, Richards, Layton & Finger, P.A.

1 Allison Land, Skadden, Arps, Slate, Meagher & Flom, LLP 2 John Mark Zerberkiewicz, Richards, Layton & Finger, P.A. 3 Jeffrey Gorris, Friedlander & Gorris, P.A. 4 Joel Friedlander, Friedlander & Gorris, P.A 5 Herbert Fockler, Wilson Sonsini Goodrich & Rosati 1

6 Martin Lessner, Young Conaway Stargatt & Taylor, LLP

2

7 Joshua Geffon, Fenwich & West LLP 8 Thomas Mullen, Potter Anderson & Corroon LLP 9 Hon. J. Travis Laster, Delaware Court of Chancery

3

4

5

6

7

8

9

PANEL PROGRAMS

23

PANEL PROGRAMS

DECEMBER 2, 2021

The How and Why of Fairness Opinion Committee Practice Held in person at The Penn Club of New York, this spirited conversation addressed several facets of the work of investment bank fairness opinion committees. The conversation touched on how and when such committees are constituted, the extent to which their work has evolved from pure valuation issues to oversight of deal processes, and how they evaluate and rely on projections from the client that may be internally inconsistent, over- or underoptimistic, or changing over time. Participants also addressed how fairness opinion committees and deal teams interact with each other, with the client, and with legal counsel for the client.

24

INSTITUTE FOR LAW AND ECONOMICS

mode r at or Lawrence A. Hamermesh, Executive Director, Institute for Law and Economics, University of Pennsylvania Carey Law School

di sc us s a n t s Eduardo Gallardo, Gibson, Dunn & Crutcher LLP Daniel Lee, Managing Director, Moelis & Company Scott Luftglass, Fried Frank Jennifer Muller, Managing Director, Houlihan Lokey

1 Meredith Kotler, Freshfields Bruckhaus Deringer LLP; Eduardo Gallardo, Gibson, Dunn & Crutcher LLP; Daniel Lee, Moelis & Company; Richard DeRose, Houlihan Lokey 2 Hon. Leo E. Strine, Jr., Wachtell, Lipton, Rosen & Katz; Joseph Stern, Goldman Sachs; Derrick Lott, Shearman & Sterling LLP 3 William Mills, Cadwalader, Wickersham & Taft LLP; Gaurav Jetley, Analysis Group; David Silk, Wachtell, Lipton, Rosen & Katz; Scott Luftglass, Fried Frank; Lawrence Hamermesh, Institute for Law and Economics 4 Daniel Burch, MacKenzie Partners, Inc.

1

2

3

4

PANEL PROGRAMS

25

PANEL PROGRAMS

APRIL 27, 2022

Benefit Corporations: Key Developments and Future Directions Using the story of how Allbirds became a publicly held public benefit corporation as a starting point, the dynamic discussion in this program addressed the business characteristics that lend themselves to the public benefit corporation form. The discussants examined disclosure in the context of a public offering and the special issues presented by public benefit corporations, including the role of B Lab as a certifying body. The discussion also explored the relationship between public benefit corporation status and dual class stock structures. Of particular note, participants, including investment bankers, evaluated the investor demand for socially responsible portfolio companies and assessed how the public benefit corporation responds to that demand. Attention then turned to the operation of directors’ fiduciary duties in a public benefit corporation, how investment managers do and should assess the value of public benefit corporation status, and the importance in that regard of measurement and disclosure of a corporation’s public benefits.

26

INSTITUTE FOR LAW AND ECONOMICS

mode r at or s Lisa Fairfax, Presidential Professor of Law, University of Pennsylvania Carey Law School Elizabeth Pollman, Professor of Law, University of Pennsylvania Carey Law School

di sc us s a n t s Frederick Alexander, Founding Partner and Chief Executive Officer, The Shareholder Commons Daniel Li, General Counsel, Allbirds Susan Mac Cormac, Morrison & Foerster LLP

1 Daniel Li, Allbirds; Susan Mac Cormac, Morrison & Foerster LLP; David Silk, Wachtell, Lipton, Rosen & Katz; Lara Aryani, Shearman & Sterling LLP 2 Frederick Alexander, The Shareholder Commons; Lisa Fairfax, University of Pennsylvania Carey Law School; Elizabeth Pollman, University of Pennsylvania Carey Law School; Joseph Gatto, Orient Point Partners, LLC; Steven Cohen, Raven Advisors; Mark Gentile, Richards, Layton & Finger, P.A.; Francis Stapleton, Evercore; Ramaswamy Variankaval, JP Morgan 3 Pamela Millard, Potter Anderson & Corroon, LLP; Emilie Aguirre, Duke University School of Law; Alexandra Lunt, Armonia LLC; Karishma Ahuja, Carlyle; Jennifer Shotwell, Innisfree M&A Incorporated; Jill Fisch, University of Pennsylvania Carey Law School; Joseph Frumkin, Sullivan & Cromwell, LLP; Daniel Li, Allbirds; Susan Mac Cormac, Morrison & Foerster LLP

1

4 Jill Fisch, University of Pennsylvania Carey Law School; Joseph Frumkin, Sullivan & Cromwell, LLP 5 Perry Golkin, PPC Enterprises LLC; Frederick Alexander, The Shareholder Commons

2

3

4

5

PANEL PROGRAMS

27

LECTURES The Law and Entrepreneurship Lecture and the Distinguished Jurist Lecture are the Institute’s principal public programs. In sponsoring these events, the Institute aims to spotlight and honor lawyers who have led noteworthy careers and made significant contributions as corporate executives and entrepreneurs, or as jurists at the state and federal levels.

Audiences are drawn from all sectors of the University and the legal and business communities. These eminent speakers hold particular appeal and inspiration for students of Penn’s Law School and the Wharton School, with whom they talk informally at receptions following each lecture. The Law and Entrepreneurship Lecture is supported in part by the Ronald N. Rutenberg Fund.

LECTURES

29

FIRESIDE CHAT & DISTINGUISHED JURIST LECTURE

APRIL 7, 2022

Creating Common Law in the Corporate Context – Delaware Style Hon. Karen Valihura L’88, Justice, Delaware Supreme Court

Justice Valihura provided her perspective on five key principles that are important in crafting judicial decisions at the appellate level. These principles include: the purpose of the law, practicality, predictability, public policy considerations and principles of stare decisis. She illustrated these principles in discussing a number of recent decisions of the Delaware Supreme Court including Express Scripts, Inc. v. Bracket Holdings Corp., 248 A.3d 824 (Del. 2021); RSUI Indem. Co. v. Murdock, 248 A.3d 887 (Del. 2021); Brookfield Asset Mgmt., Inc. v. Rosson, 261 A.3d 1251 (Del. 2021); Manti Holdings, LLC v. Authentix Acquisition Co., Inc., 261 A.3d 1199 (Del. 2021); and United Food & Com. Workers Union & Participating Food Indus. Emps.

Tri-State Pension Fund v. Zuckerberg, 262 A.3d 1034 (Del. 2021). Through those examples, she examined some of the tensions that arise in applying these principles – for example, how courts address competing purposes, such as promoting freedom of contract while at the same time not permitting contracting parties to exploit that freedom to avoid sanctions for fraudulent conduct.

A graduate of the University of Pennsylvania Law School in 1988, Justice Valihura was sworn in for her first term as Justice of the Supreme Court of Delaware on Friday, July 25, 2014. Before her appointment to the Supreme Court, she was a partner at Skadden, Arps, Slate, Meagher & Flom, LLP, where she practiced law since 1989. Her practice in complex commercial and corporate issues included federal and state securities fraud claims, mergers and acquisitions, and fiduciary duties of directors. Justice Valihura has been consistently selected for inclusion in Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America. Justice Valihura has served on the Advisory Board of the John L. Weinberg Center for Corporate Governance, as Chair of the Delaware Supreme Court's Board on Professional Responsibility, and as Chair of the Delaware Supreme Court’s Permanent Ethics Advisory Committee on Delaware Rules for Professional Conduct. Justice Valihura served for eight years on the Council of the Corporation Law Section of the Delaware State Bar Association. She also served as a member of the Board of Directors for the Delaware Special Olympics for eighteen years and as a member of the Delaware Bar Foundation for eight years. Justice Valihura received her undergraduate degree from Washington and Jefferson College in 1985 and served as a law clerk to Judge Robert E. Cowen of the U.S. Court of Appeals for the Third Circuit.

FEBRUARY 24, 2021

Fireside Chat with Hon. Leo E. Strine, Jr.

Corporate Governance Post-Pandemic and Post-President Trump Professor Jill Fisch hosted a conversation with former Delaware Supreme Court Chief Justice Leo Strine about current issues of Delaware corporate law, developments in deal architecture, and the relationship between ESG and the board’s Caremark duties. Addressing the impact of the pandemic on material adverse event (MAE) provisions and operating covenants, Strine noted that the pandemic may have led to revising those provisions to address still other unforeseen circumstances. Strine praised the Delaware courts for their response during the pandemic, noting the importance of an available forum for resolving deal uncertainty and that the lack of forums allowed buyers to negotiate for heavy discounts. Strine also considered the impact of the pandemic on the Revlon doctrine’s limitation on boards’ ability to consider non-shareholder interests. Strine observed that where companies accepted pandemic funding aimed at helping the employees and the communities in which those companies operate, this increased focus on stakeholders might affect a board’s response to an offer to buy the company that is beneficial to the stockholders, but not necessarily the stakeholders, and might enable some boards to decline such an offer. Turning to controlling stockholder transactions, the former Chief Justice expressed concern that courts are applying MFW any time a controller does business with the company, without an analysis of the degree of that stockholder’s influence over the board. Fisch and Strine also discussed the expanded use of Section 220, and the former Chief Justice questioned the increase in 30

INSTITUTE FOR LAW AND ECONOMICS

litigation despite the fact that there are more independent directors and increased disclosure. The discussion concluded by noting the resurgence of Caremark duties and their potential application to environmental, social and governance issues such as climate change and sexual harassment. The former Chief Justice explained that Caremark duties extend to ensuring that the company has policies that ensure compliance with the law, which, he noted, includes all kinds of ESG issues.

Leo E. Strine, Jr., is Of Counsel at Wachtell, Lipton, Rosen & Katz. Prior to joining the firm, he was the Chief Justice of the Delaware Supreme Court, and Vice Chancellor and later Chancellor of the Delaware Court of Chancery.

Previously, he had served as Counsel and Policy Director to Governor Thomas R. Carper and as a corporate litigator at Skadden, Arps, Slate, Meagher & Flom. He was law clerk to Judge Walter K. Stapleton of the U.S. Court of Appeals for the Third Circuit and Chief Judge John F. Gerry of the U.S. District Court for the District of New Jersey. Mr. Strine received his J.D. magna cum laude from the University of Pennsylvania Law School in 1988, where he was a member of the Order of the Coif. In 1985, he graduated summa cum laude from the University of Delaware, where he was a member of Phi Beta Kappa and a Truman Scholar. Strine is the Michael L. Wachter Distinguished Fellow in Law and Policy at Penn Law, the Ira M. Millstein Distinguished Senior Fellow at the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School and a Senior Fellow of the Harvard Program on Corporate Governance.

1 Hon. Karen Valihura, Delaware Supreme Court 2 Forward row: Jay Clayton, Sullivan & Cromwell, LLP; Christopher Foulds, Friedlander & Gorris, P.A 3 John DiTomo, Morris Nichols Arsht & Tunnell LLP; Hon. Karen Valihura, Delaware Supreme Court; Eduardo Gallardo, Gibson, Dunn & Crutcher, LLP 4 Elizabeth Pollman, University of Pennsylvania Carey Law School; Roy Katzovicz, Saddle Point Management, L.P.; Hon. J. Travis Laster, Delaware Court of Chancery 5 Hon. Leo E. Strine, Jr., Wachtell, Lipton, Rosen & Katz

1

2

3

4

5

LECTURES

31

PAST LECTURES

Past Law and Entrepreneurship Lectures 12 May 2021 A Moderated Conversation Martin Lipton, Founding Partner, Wachtell, Lipton, Rosen & Katz With Theodore Mirvis, Wachtell, Lipton, Rosen & Katz 17 November 2020 A Moderated Conversation: Entrepreneurship and Venture Capital in 2020 & Ahead Scott Kupor, Managing Director, Andreesen Horowitz With Elizabeth Pollman, University of Pennsylvania Carey Law School 10 April 2019 China, Inc. – What It Means for American Innovation and Entrepreneurship John Schultz L’89, Executive Vice President, Chief Legal & Administrative Officer, Hewlett Packard Enterprise; Chair of the Board, H3C Technologies Company, Ltd. 13 November 2018 Intellectual Property – the New Global Currency Osagie Imasogie LLM’85, Senior Managing Partner, Phoenix IP Ventures 17 January 2018 Immersive Computing @ Google Matthew Apfel, Director, VR Video, Google, Inc. 25 October 2017 Game Changers: Transformation of Sports Media (and a Career) Bill Koenig, President of Global Content and Media Distribution, National Basketball Association 12 April 2017 A Banker’s Perspective on M&A Greg Weinberger, Co-Head of Global M&A, Credit Suisse Securities (USA) LLC

Past Distinguished Jurist Lectures 11 November 2019 Modernizing Our Regulatory Framework: Focus on Authority, Expertise & Long-Term Investor Interests Jay Clayton L’93, Chairman, U.S. Securities and Exchange Commission 16 October 2018 How Some Appellate Judges Think Hon. Thomas Ambro, Judge, U.S. Court of Appeals for the Third Circuit 15 November 2017 The Procedural Implementation of Enhanced Scrutiny Hon. J. Travis Laster, Vice Chancellor, Delaware Court of Chancery 29 November 2016 Current Policy Priorities Antonio Weiss, Counselor to the Secretary of the US Treasury, Department of the Treasury 14 October 2015 Science, Technology, and Immigration in the 21st Century Hon. Barrington D. Parker, Jr., U.S. Court of Appeals for the Second Circuit

32

INSTITUTE FOR LAW AND ECONOMICS

26 October 2016 The Immediate Challenges for the Next President of the United States David M. Rubenstein, Co-Founder and Co-CEO, The Carlyle Group 16 March 2016 Off the Field and Off the Record: The Future Through the Prism of Sports Philip de Picciotto, Founder and President, Octagon 11 November 2015 Counselor as Entrepreneur or Law as a Dynamic Venture Steven M. Cohen, Executive Vice President, Chief Administrative Office and General Counsel, MacAndrews & Forbes Incorporated 17 February 2015 Doing Well and Doing Good: The Story of Plum Organics and the New Benefit Corporation Movement Frederick Alexander, Counsel, Morris, Nichols, Arsht & Tunnell LLP and Advisor for Legal Policy, B Lab Neil Grimmer, CEO and Co-Founder, Plum Organics Bart Houlahan, Co-Founder, B Lab Ray Liguori, Vice President of Corporate Development, Campbell Soup Company Keely Stewart, Associate Corporate Counsel, Campbell Soup Company 18 November 2014 Happy Guy in Distressed… From Pre-Med to JD to Distressed Investing Steven T. Shapiro, Founding Partner and Senior Portfolio Manager, GoldenTree Asset Management 23 April 2014 Blackstone Navigating a Sea of Regulatory Change John G. Finley, Senior Managing Director and Chief Legal Officer, The Blackstone Group

12 November 2013 Shazam! – A ’63 Law Grad is Transformed into a High Tech Entrepreneur J. Haig Farris, President, Fractal Capital Corporation 25 February 2013 From Corporate Management to Sports Management: Turning Around the 76ers Adam Aron, CEO and Co-Owner, Philadelphia 76ers 18 October 2012 The Cross-Cultural CEO: Growing a Business in a World Without Borders David Perla, Co-Chief Executive Officer, Pangea3 LLC 15 November 2011 Too Dull for Davos: My Life in Long-Only, Objective-Based, Active Money Management and Why I Think It Still Makes Sense Paul G. Haaga, Jr., Chairman of the Board, Capital Research and Management Company 2 March 2011 Competitive Places and Inner City Opportunities: Reflections on 25 Years of Community Investment Jeremy Nowak, President and Chief Executive Officer, The Reinvestment Fund 2 November 2010 The Financial Crisis: Aftermath and Implications H. Rodgin Cohen, Sullivan & Cromwell LLP 3 March 2010 Managing Through Change, Managing Through Crisis in Financial Services Joseph D. Gatto, Chairman of Investment Banking, Barclays Capital Americas 30 September 2009 The ‘Ten Points’ for Maintaining a Risk-Taking Entrepreneurial Spirit in a Large Corporation J.P. Suarez, Senior Vice President and General Counsel, Wal-Mart Stores International Division

31 March 2009 The PeopleSoft Deal Safra Catz, President, Oracle Corporation 3 March 2009 Defining the 21st Century Campus: The Intersection of Education and Community Hon. Michael Nutter, Mayor, City of Philadelphia 17 September 2008 Retailers in a Recession: A Fireside Chat on Investing with Bill Ackman William A. Ackman, Managing Member, Pershing Square Capital Management, L.P. 31 March 2008 Making Every Mistake Once Safra Catz, President, Oracle Corporation 19 September 2007 Tales from Blackstone’s IPO Robert L. Friedman, Senior Managing Director and Chief Legal Officer, The Blackstone Group L.P. 28 February 2007 Law, Legal Risks, and the Financial Markets Isaac D. Corré, Senior Managing Director, Eton Park Capital Management 29 November 2006 Large-Scale Entrepreneurship: Business Development at GE Pamela Daley, Senior Vice President for Corporate Business Development, General Electric Company 26 October 2006 Managing in the 21st Century Henry R. Silverman, Chairman & CEO, Realogy Corporation 16 February 2006 The Banker as Entrepreneur Michael J. Biondi, Co-Chairman, Investment Banking, Lazard Frères & Co. LLC

19 March 2015 Fixing Lawyers’ Mistakes: The Court’s Role in Administering Delaware’s Corporate Statute Hon. John W. Noble, Vice Chancellor, Delaware Court of Chancery

29 October 2009 Private Securities Litigation — Time for a Fresh Start?

Hon. Lewis A. Kaplan, United States District Judge, Southern District of New York

3 March 2005 Corporate Federalism: Event Horizons in Corporate Governance Hon. Myron T. Steele, Chief Justice, Delaware Supreme Court

19 November 2013 The Paucity of Criminal Prosecutions Arising from the Financial Crisis: Unaccountable?

Hon. Jed S. Rakoff, United States District Judge, Southern District of New York

11 November 2008 Delaware Directors’ Fiduciary Duties: The Focus on Loyalty Hon. Randy Holland, Justice, Supreme Court of Delaware

10 October 2012 Financial Stability Regulation Daniel K. Tarullo, Governor, Board of Governors of the Federal Reserve System

24 October 2007 The Future of Securities Regulation Brian G. Cartwright, General Counsel, Securities and Exchange Commission

28 October 2004 A Twelve-Year Retrospective on Delaware Corporate Jurisprudence and Governance Issues Hon. E. Norman Veasey, Chief Justice, Delaware Supreme Court

15 February 2012 Regular Order as Equity Hon. Leo E. Strine, Jr., Chancellor, Delaware Court of Chancery

11 October 2006 The Embattled Corporation Hon. Richard A. Posner, U.S. Seventh Circuit Court of Appeals and University of Chicago Law School

25 October 2011 The Delaware Court of Chancery from 1989 – 2011: An Insider’s View Hon. William B. Chandler III, Chancellor, Delaware Court of Chancery 23 March 2011 Treasury’s Performance as Pay Tsar: Precedent or Aberration?

Kenneth R. Feinberg, Feinberg Rozen, LLP

16 March 2006 Technology Mergers in a Shrinking World Hon. Vaughn R. Walker, Chief Judge, U.S. District Court for the Northern District of California

4 March 2004 Corporate Decision-Making in Delaware Courts Hon. Carolyn Berger, Justice, Delaware Supreme Court

Past Law and Entrepreneurship Lectures 1 Martin Lipton 2 Scott Kupor 3 John Schultz 1

2

3

4

4 Osagie Imasogie 5 Matthew Apfel 6 Bill Koenig 7 Greg Weinberger 8 David Rubenstein 9 Philip de Picciotto 10 Steven M. Cohen

5

6

7

8

11 Neil Grimmer, Roy Liguori, Keely Stewart, Frederick Alexander, Bart Houlahan 12 Steven T. Shapiro 13 John Finley 14 J. Haig Farris

Past Distinguished Jurist Lectures 15 Jay Clayton 9

10

16 Hon. Thomas Ambro

11

17 Hon. J. Travis Laster 18 Antonio Weiss 19 Hon. Barrington D. Parker, Jr. 20 Hon. John W. Noble 21 Hon. Jed S. Rakoff 22 Daniel K. Tarullo 23 Hon. Leo E. Strine, Jr.

12

13

14

15

16

17

18

19

20

21

22

23

LECTURES

33

ACADEMIC EVENTS The Institute for Law and Economics organizes a variety of symposia focused primarily on the academic community. A distinctive feature of these programs is the involvement of judges and practitioners, who bring their practical insights to bear on the implications of academic research.

For over fifteen years, ILE has sponsored an annual conference on Law and Finance jointly with the Wharton School’s Financial Institutions Center and NYU’s Pollack Center for Law and Business.

Although the conference has been suspended due to the pandemic, we expect it to resume in the 2022-2023 academic year.

ILE also sponsors the ILE/Wharton Finance Seminar series, providing an opportunity for faculty and advanced students from the Law School, the Wharton School, and the Department of Economics to engage in areas of common interest and strengthen ILE’s core academic relationships. During the 2021-2022 academic year, ILE hosted two workshops as part of this series.

In addition, ILE hosted two virtual academic workshops in business law. The virtual workshops bring together a small group of scholars and practitioners with relevant subject matter expertise to discuss a work in progress and provide feedback to the author at a critical stage in the research project.

In addition, Fall 2021 marked the initiation of another new academic event. The Fall Corporate Roundtable was preceded by a half day, in-person academic workshop, featuring work by early and mid-career scholars and lively discussion with scholars and practitioners.

ACADEMIC EVENTS

35

ILE/WHARTON FINANCE SEMINAR

OCTOBER 20, 2021

MARCH 30, 2022

Noisy Factors

In the Red: Overdrafts, Payday Lending and the Underbanked

Adriana Robertson, Honourable Justice Frank Iacobucci Chair in Capital Markets Regulation and Associate Professor of Law and Finance, University of Toronto Faculty of Law and Rotman School of Management

The Fama-French factors are ubiquitous in empirical finance, industry, and law. Robertson and her co-author find that factor returns differ substantially depending on when the data were downloaded. The effects of these retroactive changes are large.

Holding the sample period constant and varying only factor vintages, they show this in three contexts. First, in cross-sectional equity pricing, unconditional alphas of a third of long-short ‘anomaly’ portfolios lose statistical significance. Second, in mutual fund analyses, they show that annual alphas of almost half of individual funds and even portfolios of funds change by more than 1%. Third, in the context of testing asset pricing models, F-statistics from GRS tests of the three-factor model on standard test portfolios vary by up to 40% due only to changes in factor vintages. Their results do not suggest that any particular factor vintage is dominant but point to a source of latent noise that is ignored in conventional tests. They provide suggestions to empiricists on dealing with the noise. Their findings have significant implications for the replicability and robustness of finance research and have a direct bearing on a variety of empirical contexts. com m e n tat or s Alon Brav, The Peterjohn-Richards Professor of Finance, Duke University, The Fuqua School of Business Jonathan Klick, Professor of Law, University of Pennsylvania Carey Law School Winston Dou, Assistant Professor of Finance, The Wharton School Marina Niessner, Visiting Associate Professor of Finance, The Wharton School

36

INSTITUTE FOR LAW AND ECONOMICS

Marco Di Maggio, Ongunlesi Family Associate Professor of Business Administration, Harvard Business School

The reordering of transactions from “high-to-low” is a controversial bank practice thought to maximize fees paid by low-income customers on overdrawn accounts. The authors exploit a series of class-action lawsuits that mandated that some banks cease the practice. Using alternative credit bureau data, they find that after banks cease high-to-low reordering, low-income individuals reduce payday borrowing, increase consumption, undergo long-term improvements in financial health, and gain access to lower-cost loans in the traditional financial system. These findings, in suggesting that aggressive bank practices can create demand for alternative financial services, highlight an important link between the traditional and alternative financial systems. com m e n tat or s Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of Pennsylvania Carey Law School Katja Langenbucher, Bok Visiting Professor, University of Pennsylvania Carey Law School Daniel Garrett, Assistant Professor of Finance, The Wharton School Sasha Scarlett Indarte, Assistant Professor of Finance, The Wharton School

1 Adriana Robertson, University of Toronto Faculty of Law 2 Marco Di Maggio, Harvard Business School 3 Forward Row: Michael Knoll, University of Pennsylvania Carey Law School; Itay Goldstein, The Wharton School; Jonathan Zandberg, The Wharton School; Alon Brav, Duke University Fuqua School of Business 4 David Musto, The Wharton School; Vincent Glode, The Wharton School; Itay Goldstein, The Wharton School

1

2

3

4

ACADEMIC EVENTS

37

ACADEMIC WORKSHOPS

During the 2021-2022 academic year, ILE hosted one half day, in person and two (virtual) academic workshops. The workshops offered academics who had not previously presented their work in ILE programs the opportunity to obtain feedback from scholars and practitioners with relevant subject matter expertise.

THURSDAY, DECEMBER 9, 2021

Venture Capital and the Social Benefits of Control Emilie Aguirre, Associate Professor of Law, Duke University School of Law

What Does “Public Company” Mean to the Public?

Andrew K. Jennings, Assistant Professor of Law, Brooklyn Law School

Political Risk Omari Scott Simmons, Howard L. Oleck Professor of Business Law, Director of Business Law Program, Wake Forest University School of Law

D&O Insurers as ESG Monitors Amelia Miazad, Director and Senior Research Fellow, Business in Society Institute, UC Berkeley Law School

TUESDAY, MARCH 29, 2022

Conscious Credit: Can Private Debt Serve Public Good?

Nakita Cuttino, Associate Professor of Law, Georgetown Law Center

THURSDAY, APRIL 21, 2022

Fraud on the Cryptomarket Menesh Patel, Acting Professor of Law, UC Davis School of Law

38

INSTITUTE FOR LAW AND ECONOMICS

1 Donna Nagy, Indiana University Maurer School of Law; Andrew Jennings, Brooklyn Law School 2 Brett McDonnell, University of Minnesota Law School; Emilie Aguirre, Duke University School of Law; Lisa Fairfax, University of Pennsylvania Carey Law School; Cynthia Williams, Osgood Hall Law School, York University; Joseph Frumkin, Sullivan & Cromwell, LLP 3 Lawrence Hamermesh, Institute for Law and Economics; Joel Friedlander, Friedlander & Gorris, P.A.; Amelia Miazad, UC Berkeley Law School; Elizabeth Pollman, University of Pennsylvania Carey Law School; David Silk, Wachtell, Lipton, Rosen & Katz; Donna Nagy, Indiana Maurer School of Law; Harwell Wells, Temple University Beasley Law School 4 Joseph Frumkin, Sullivan & Cromwell, LLP; Omari Simmons, Wake Forest University School of Law; Jill Fairfax, University of Pennsylvania Carey Law School; Steven Solomon, UC Berkeley Law School 5 Steven Solomon, UC Berkeley Law School; Vincent Buccola, The Wharton School 6 Menesh Patel, UC Davis School of Law 1

2

3

4

5

6

7 Nakita Cuttino, Georgetown Law Center

7

ACADEMIC EVENTS

39

CURRICUL AR PARTNERSHIPS

FALL 2020 – SPRING 2022 The Institute for Law and Economics engages in curricular partnerships that serve the Law School’s educational mission. Members of our board of advisors make important contributions as members of our adjunct faculty. In addition, ILE invites members of our board and other distinguished professionals to the Law School for special classes and seminars and as luncheon speakers and program participants to share their professional expertise with Penn Law students in an informal setting.

COURSES

Business Strategy, Private Equity and Corporate Law Perry Golkin

Corporate Reorganization Martin Bienenstock

Cross Border M&A George Casey and Scott Petepiece

Economic and Regulatory Policy for Global Markets Jay Clayton

M&A Through the Business Cycle Joseph Frumkin, Joseph Gatto and Brian Hamilton

Stockholder Litigation Joel Friedlander

jd/mba luncheons Steven M. Cohen, Chair, Empire State Development John Finley, Senior Managing Director and Chief Legal Officer, The Blackstone Group L.P. Eric Friedman, Skadden, Arps, Slate, Meagher & Flom LLP Ted S. Lodge, Partner – Global Head Restructurings and Turnarounds, GoldenTree Asset Management, LP Jennifer Zachary, Executive Vice President, General Counsel, and Corporate Secretary, Merck & Co., Inc. In addition, we extend our thanks to the many board members who generously contributed their time and expertise as guest speakers in business law courses across the curriculum.

40

INSTITUTE FOR LAW AND ECONOMICS

1 Joel Friedlander, Friedlander & Gorris, P.A. 2 Martin Lessner, Young Conaway Stargatt & Taylor, LLP 3 Mark Greene, Cravath, Swaine & Moore LLP 4 Mark Lebovitch, Bernstein Litowitz Berger & Grossmann LLP 5 Hon. Leo E. Strine, Jr., Wachtell, Lipton, Rosen & Katz 6 Joseph Gatto, Orient Point Partners, LLC and 1

Joseph Frumkin, Sullivan & Cromwell LLP

2

7 John Mark Zeberkiewicz, Richards, Layton & Finger, P.A. 8 George Casey, Shearman & Sterling, LLP 9 Frederick Alexander, The Shareholder Commons

3

4

5

6

7

8

9

ACADEMIC EVENTS

41

DELAWARE OR AL HISTORY PROJECT AND THE LIPTON ARCHIVE The Institute has created the Delaware Corporate Law Resource Center, a website repository of oral histories of the seminal Delaware corporate cases and legislative developments since the 1967 general revision of the Delaware General Corporation Law. The website includes recorded interviews of many of the lawyers and judges who participated in those cases and developments and whose recollections are important to preserve, as well as documentary videos that piece together the interviews and case materials into a single narrative.

In addition, building on the success of the Delaware Corporate Law Resource Center, in June 2021, the Institute unveiled a new affiliated website, “The Lipton Archive.” The Lipton Archive is a living corporate law and governance history site focusing on the thought leadership of Martin Lipton of Wachtell, Lipton, Rosen & Katz. The website has a searchable index of Lipton’s iconic memos from their inception, as well as all of Lipton’s scholarly articles and a narrative of Lipton’s career and thought leadership.

Together with the Delaware Corporate Law Resource Center, the Lipton Archive enables scholars, teachers, students, and practitioners to conduct research, design interesting classroom, executive and legal education sessions, and deepen their understanding of the history and traditions of corporate governance.

The website of the Delaware Corporate Law Resource Center can be found at www.law.upenn.edu/delawarecorporatehistory/.

The Lipton Archive is available at http://www.theliptonarchive.org/.

DELAWARE ORAL HISTORY PROJECT

43

THE DEL AWARE ORAL HISTORY PROJECT AND THE LIPTON ARCHIVE

Six years ago, the Institute embarked upon an exciting long-term project involving the creation of oral histories of the seminal Delaware corporate cases and legislative developments since the general revision of the Delaware General Corporation Law (DGCL) in 1967. The project centers on recorded interviews to preserve the recollections of many of the lawyers and judges who participated in those cases and developments. Based on those interviews and on the opinions, briefs and other associated materials, the project has prepared a narrative video that presents the background stories of many of the cases. The Delaware Corporate Law Resource Center website, which the Institute created and maintains, makes all these materials publicly accessible at no charge.

The oral history project emerged out of a series of advanced seminars taught

by Delaware’s Chief Justice Leo E. Strine, Jr. and Professor Michael Wachter.

In previous years, the seminar featured participants in major Delaware corporate cases describing their experience and strategies in litigating the cases. That classroom experience highlighted the value of developing oral histories that gather and preserve similar recollections about Delaware’s landmark corporate cases. Given ILE’s close relationship with the Delaware courts over the years and the significance of this period in the development of modern Delaware corporate law, ILE expects this collection to be an invaluable resource for students and scholars.

This resource has been made possible by the generous support of key sponsors: Wachtell, Lipton, Rosen & Katz, Skadden, Arps, Slate, Meagher & Flom, Sullivan & Cromwell, CSC Global, Morris, Nichols, Arsht & Tunnell, Potter Anderson & Corroon, Richards, Layton & Finger, Young Conaway Stargatt & Taylor, and the Delaware State Bar Association.

In June 2021, building on the success of the Delaware Corporate Law Resource Center, and with substantial support from Wachtell, Lipton, Rosen & Katz, the Institute unveiled a new affiliated website, “The Lipton Archive.”

The Lipton Archive is a living corporate law and governance history site focusing on the thought leadership of Martin Lipton of Wachtell, Lipton, Rosen & Katz. The website has a searchable index of Lipton’s iconic memos from their inception and continuing into the future, as Lipton continues to address the emerging issues of this century. In addition, all of Lipton’s scholarly articles, and several of his important yearly writings (e.g., his Spotlight on Boards series) are available in chronological order. The site also has a narrative of Lipton’s career and thought leadership, which contains citations not only to his own work, but also those of leading thinkers with whom he has engaged in constructive dialogue. The site links to the rich materials in the Delaware Corporate Law Resource Center so that scholars, teachers, students, and practitioners may use them to conduct research, design interesting classroom and executive and legal education sessions, and deepen their understanding of the history and traditions of corporate governance.

In April of this year, we celebrated the completion of the oral history project.

44

INSTITUTE FOR LAW AND ECONOMICS

pic t u r e d on t h e fac i ng pag e

1 Hon. Morgan Zurn, Delaware Court of Chancery; Hon. Kathaleen McCormick, Delaware Court of Chancery; Hon. J. Travis Laster, Delaware Court of Chancery; Hon. Patricia Griffin, Delaware Court of Chancery 2 Hon. Collins Seitz, Delaware Supreme Court; Clark Collins, Morris James, LLP; Greg Rader, Delaware Court of Chancery; Samuel Nolen, Richards, Layton & Finger, P.A.; Joel Friedlander, Friedlander & Gorris, P.A.; Mary Grendell, Protara Therapeutics 3 William Lafferty, Morris Nichols Arsht & Tunnell, LLP; Hon. Andre Bouchard, Paul Weiss; Hon. Collins Seitz, Delaware Supreme Court; P. Clarkson Collins, Jr., Morris James, LLP 4 Jill Fisch, University of Pennsylvania Carey Law School and Lawrence Hamermesh, Institute for Law and Economics 5 Theodore Mirvis, Wachtell, Lipton, Rosen & Katz 6 Thomas Allingham, Skadden, Arps, Slate, Meagher & Flom, LLP; Hon. Leo Strine, Jr., Wachtell, Lipton, Rosen & Katz; Eric Klinger-Wilensky, Morris Nichols Arsht & Tunnell, LLP; David Silk, Wachtell, Lipton, Rosen & Katz

1

2

3

4

5

6

DELAWARE ORAL HISTORY PROJECT

45

ILE launched the Women in Business Law Initiative in September 2019. WIBLI aims to promote the development and advancement of women in business law. Its membership consists of a growing network including current University of Pennsylvania Carey Law School students, Law School alumni, and other female professionals. WIBLI members can network on the community platform established in the summer of 2020. Together with ILE, WIBLI hosted three programs this academic year.

WOMEN IN BUSINESS INITIATIVE

47

WOMEN IN BUSINESS L AW INITIATIVE

SEPTEMBER 14, 2022

Lunch and Conversation With the PLWA The Co-Directors of the ILE, Professors Jill Fisch, Elizabeth Pollman, and Lisa Fairfax, invited the Penn Law Women’s Association for a lunch to learn about ILE and its Women in Business Law Initiative, to meet the Co-Directors, and to talk about business law at Penn Law and thereafter. About 100 students attended.

APRIL 11, 2022

Career Arcs of Leaders in Business Law

mode r at or Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law, University of

Moderated by Professor Jill Fisch, this program presented the Pennsylvania Carey Law School insights of five highly accomplished women who have taken their legal training into diverse areas of law and business. They shared pa n e l i s t s their observations about reliance on networks of friends and Hon. Cheryl Ann Krause, Judge, U.S. Court of Appeals for the Third Circuit Jami Wintz McKeon, Chair, Morgan Lewis & Bockius, LLP colleagues, openness to new professional opportunities, addressing Anne Robinson, Managing Director, General Counsel, and Corporate Secretary, unnecessary internal skepticism about one’s abilities, willingness Vanguard to consult with both peers and superiors about professional Kristine Wellman, Vice President, Strategic Planning, The Chemours Company and quality of life issues, and the importance of care and joy in Jennifer Zachary, Executive Vice President, General Counsel, and Corporate Secretary, Merck & Co., Inc. one’s work.

APRIL 26, 2022

Women and M&A

mode r at or Elizabeth Pollman, Professor of Law, University of Pennsylvania Carey Law School

Professor Afra Afsharipour presented findings from her article, Women and M&A, forthcoming in the UC Irvine Law pa pe r pr e se n t e r Review. The article examines the lead actors in M&A, reveals that Afra Afsharipour, Senior Associate Dean for Academic Affairs and Professor of Law, UC Davis School of Law women’s leadership opportunities as lead legal advisors continue to be vastly unequal, documents the lack of transparency on pa n e l i s t s leadership data for other players in M&A, and identifies measures Rachael Coffey, Kirkland & Ellis LLP Jennifer Muller, Managing Director, Houlihan Lokey for increasing accountability and determining the solutions that Faiza Saeed, Cravath, Swaine & Moore LLP may work to reduce such disparities. The research presentation Elina Tetelbaum, Wachtell, Lipton, Rosen & Katz was followed by a panel discussion regarding the research findings, barriers and potential pathways to reducing gender disparities in M&A, and effective ways to assess and benchmark advancement.

48

INSTITUTE FOR LAW AND ECONOMICS

1 Jill Fisch, University of Pennsylvania Carey Law School; Hon. Cheryl Krause, U.S. Court of Appeals for the Third Circuit; Jami Wintz McKeon, Morgan Lewis & Bockius, LLP; Anne Robinson, Vanguard; Kristine Wellman, The Chemours Company; Jennifer Zachary, Merck, Inc. 2 Afra Afsharipour, UC Davis School of Law; Rachael Coffey, Kirkland & Ellis LLP; Jennifer Muller, Houlihan Lokey; Faiza Saeed, Cravath, Swaine & Moore LLP; Elizabeth Pollman, University of Pennsylvania Carey Law School

1

2

WOMEN IN BUSINESS INITIATIVE

49

ASSOCIATE FACULTY

1 David Abrams 2 Tom Baker 3 William W. Bratton, Emeritus 1

2

3

4

4 Cary Coglianese 5 Vincent Glode 6 Itay Goldstein 7 Richard J. Herring 8 David Hoffman 9 Robert W. Holthausen 10 Herbert Hovenkamp 11 Jonathan Klick

5

6

7

8

12 Michael S. Knoll 13 Sarah Light 14 David K. Musto 15 Gideon Parchomovsky 16 Andrew Postlewaite 17 Michael R. Roberts 18 Amy Sepinwall

9

10

11

12

19 David A. Skeel, Jr. 20 Lucian Taylor 21 Michael L. Wachter, Emeritus 22 Susan M. Wachter 23 Bilge Yilmaz 24 David Zaring

13

14

15

16

17

18

19

20

21

22

23

24

ASSOCIATE FACULTY

51

ASSOCIATE FACULT Y

ILE CO-DIRECTORS

Professor Fisch received her J.D. from Yale Law School in 1985. Before joining the Penn faculty in 2008, she held the T.J. Maloney Chair in Business Law at Fordham Law School and served as founding director of the Fordham Corporate Law Center. She has also been a visiting professor at Harvard Law School, Columbia Law School, Georgetown University Law Center, and UC Berkeley Law School. Prior to entering academia, Professor Fisch practiced law with the United States Department of Justice and the New York office of Cleary, Gottlieb, Steen and Hamilton. Her research focuses on corporate governance, business litigation, and securities regulation. Professor Fisch is an associate reporter of the American Law Institute Restatement of Corporate Governance and a director of the European Corporate Governance Institute.

Governance Initiative. Professor Fairfax is a member of the American Law Institute (ALI) and ALI’s Advisory Group for the Restatement of Law, Corporate Governance. She serves on the board of the Institute for Law and Economic Policy (ILEP), the Securities and Exchange Commission Historical Society, and DirectWomen, an organization aimed at increasing public company board diversity. She formerly served on the Investor Advisory Committee of the Securities and Exchange Commission, the National Adjudicatory Council of the Financial Industry Regulation Authority (FINRA), and FINRA’s NASDAQ Market Regulation Committee. Professor Fairfax is a former member of the Committee on Corporate Laws of the American Bar Association, and a former chair of both the Securities Regulation Section and Business Associations Section of the American Association of Law Schools (AALS). Prior to GW, Professor Fairfax was a Professor of Law and Director of the Business Law Program at the University of Maryland School of Law. Before entering academia, Professor Fairfax practiced corporate and securities law at Ropes & Gray LLP. Professor Fairfax graduated from Harvard Law School and Harvard College with honors.

Elizabeth Pollman

ASSOCIATE FACULTY

Jill Fisch Saul A. Fox Distinguished Professor of Business Law; Co-Director, Institute for Law and Economics

Professor of Law; Co-Director, Institute for Law and Economics

Professor Pollman is an expert on corporate law, governance, and rights. She teaches and writes on a wide variety of topics in business law, with a particular focus on corporate governance, purpose, and personhood, as well as startups, entrepreneurship, and law and technology. Her recent work has examined the system of U.S. public company governance, venture-backed startups, securities fraud, director oversight liability, corporate disobedience, companies that have business models aimed at changing the law, the trading of private company stock, corporate privacy, and the history of corporate constitutional rights. She is an active member of the Corporate Laws Committee of the American Bar Association and has served on the National Business Law Scholars Conference Board and the AALS Business Associations Executive Committee.

Before joining the Penn Law faculty, Professor Pollman taught at Loyola Law School, Los Angeles, and was a visiting professor at the University of Sydney and UC Berkeley School of Law. She was previously a fellow at the Rock Center for Corporate Governance at Stanford Law School. She practiced law at Latham & Watkins in Silicon Valley and Los Angeles and served as a clerk for Judge Raymond C. Fisher of the Ninth Circuit Court of Appeals. She earned both her BA and JD, with distinction, from Stanford University.

Lisa M. Fairfax Presidential Professor of Law; Co-Director, Institute for Law & Economics

Professor Fairfax’s research and scholarly interests include matters related to corporate and board governance, board fiduciary duties, board-shareholder engagement, board composition and diversity, corporate focus on ESG, shareholder activism and engagement, affinity fraud, and securities fraud.

Before joining the Penn law faculty, she was the Alexander Hamilton Professor of Business Law at the George Washington University Law School and served as the founding director of GW’s Corporate Law and

52

INSTITUTE FOR LAW AND ECONOMICS

David Abrams Professor of Law, Business Economics and Public Policy

David Abrams is Professor of Law, Business Economics and Public Policy at the University of Pennsylvania Carey Law School and the Wharton School.

He joined the Penn faculty in 2008 after serving as the Olin Fellow in Law and Economics at the University of Chicago. He earned his Ph.D. in Economics from the Massachusetts Institute of Technology in 2006, his Master’s in Physics from Stanford in 2001 and his Bachelor’s in Physics from Harvard in 1998. He is a Board Member and past-President of the Society of Empirical Legal Studies, and former chair of the Law and Economics section of the American Association of Law Schools. His research interests include Intellectual Property, Corporate Finance, Health Economics and the Law and Economics of Crime. Prior to his academic career, Professor Abrams worked as a trader and quantitative analyst at D. E. Shaw and Co.

Tom Baker William Maul Measey Professor of Law and Health Sciences

Tom Baker’s work explores insurance, risk, and responsibility in a wide variety of settings, using methods and perspectives drawn from economics, sociology, psychology, and history. His current research examines legal and institutional issues related to secondary insurance markets, insurance for cyber-related risks, and digital financial advice, as well as the empirical study of insurance litigation. His most recent article, A New Framework for the Relationship Between Government and Insurance, with Lessons for Ransomware Insurance, uses a case study method to demonstrate the pervasive involvement of government in private insurance markets that extends well beyond the activities traditionally understood as insurance regulation. He has secondary appointments in the Business Economics and Public Policy and Healthcare Management Departments at Wharton. He is

the Reporter for the American Law Institute's Restatement of the Law Liability Insurance and a co-founder of Picwell, a health data analytics company that predicts health expenses and helps match individuals to the best insurance plan. In August 2013, he received the Robert B. McKay award, a lifetime scholarly achievement award given by the Tort Trial and Insurance Practice Section of the American Bar Association. He was the Connecticut Mutual Professor and Director of the Insurance Law Center at the University of Connecticut before joining the Penn Law faculty in 2008.

He clerked for United States Court of Appeals Judge Juan Torruella and practiced with the firm of Covington and Burling.

William W. Bratton Nicholas F. Gallicchio Professor of Law Emeritus

Professor Bratton served as Co-Director of ILE from 2010 to 2020, when he took emeritus status. He is presently the de la Cruz Chair in Law & Economics at the University of Miami School of Law. He graduated in 1976 from Columbia Law School where he was articles editor of the Law Review and a James Kent Scholar. He clerked for the Honorable William H. Timbers on the U.S. Court of Appeals for the Second Circuit and practiced for several years at Debevoise & Plimpton in New York. He served on the Cardozo, Rutgers, and George Washington law faculties before joining the faculty of the Georgetown University Law Center, where he was the Peter P. Weidenbruch, Jr., Professor of Business Law. He also has been the Unilever Visiting Professor at the Faculty of Law of the University of Leiden, the Simizu Visiting Professor at the Faculty of Law of the London School of Economics, and a visiting professor at the Duke and Stanford law schools.

He is a Research Associate of the European Corporate Governance Institute and in 2010 was the Anton Philips Professor at the faculty of law of the University of Tilburg. He has published many articles and book chapters on topics in corporate law, the theory of the firm, law and economics, and legal history, and is the editor of the leading law school casebook on corporate finance.

Cary Coglianese Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation

Cary Coglianese specializes in the study of administrative law and regulatory processes, with an emphasis on the empirical assessment of alternative processes and strategies and the role of public participation, technology, and business-government relations in policy-making. He is the founder of the Law & Society Association’s international collaborative research network on regulatory governance, a fellow of the American Bar Foundation, chair of the rulemaking committee of the Administrative Conference of the United States, and chair of a National Academy of Sciences committee on statutory authority on maritime transportation. He is also a founder of the peer-reviewed journal Regulation & Governance, for which he now serves on the editorial board, as well as the founder and faculty advisor to The Regulatory Review, a daily publication of regulatory analysis and commentary. He created and serves as faculty advisor to The Regulatory Review, a daily publication of regulatory analysis and commentary. Coglianese received his J.D., M.P.P., and Ph.D. in political science from the University of Michigan, and for twelve years served on the faculty of the John F. Kennedy School of Government at Harvard University, where he founded and chaired the Regulatory Policy Program within the School’s Mossavar-Rahmani Center for Business and Government. He has also been a visiting professor of law at Stanford University and Vanderbilt University and an affiliated scholar at the Harvard Law School. Previously he served as the Associate Dean and then Deputy Dean for Academic Affairs at Penn Law.

Vincent Glode Pasi M. Hamalainen Associate Professor of Finance, The Wharton School

Vincent Glode is the Pasi H. Hamalainen Professor of Finance at the University of Pennsylvania. He joined the Wharton School in July 2009 after earning his PhD in finance from Carnegie Mellon University. His research is mainly theoretical and studies how financial intermediaries create and allocate surplus in the economy. His papers have been published in leading academic journals such as the American Economic Review, the Journal of Economic Theory, the Journal of Finance, the Journal of Financial Economics, and the Review of Financial Studies and have received best paper awards at multiple conferences. He is an associate editor at the Journal of Finance and at Management Science, an elected board member of the Northern Finance Association and a past elected board member of the Finance Theory Group. At Wharton, Professor Glode teaches valuation courses at the undergraduate, MBA, and executive education programs and has won several teaching awards. He has served on Wharton’s Teaching Excellence Committee, the Dean’s Advisory Council and the MBA program’s Executive Committee. He is a CFA charterholder.

Itay Goldstein Joel S. Ehrenkranz Family Professor of Finance, The Wharton School

Itay Goldstein is the Joel S. Ehrenkranz Family Professor in the Finance Department at the Wharton School of the University of Pennsylvania. He is also the coordinator of the Ph.D. program in Finance. He holds a secondary appointment as a Professor of Economics at the University of Pennsylvania.

He has been on the faculty of the Wharton School since 2004. Professor Goldstein earned his Ph.D. in Economics in 2001 from Tel Aviv University.

He is an expert in the areas of corporate finance, financial institutions, and financial markets, focusing on financial fragility and crises and on the feedback effects between firms and financial markets. His research has been published in top academic journals, including the American Economic Review, the Journal of Finance, the Journal of Financial Economics, the Review of Economic Studies, and the Review of Financial Studies. His research has also been featured in the popular press in the Economist, Wall Street Journal, Financial Times, Bloomberg, Forbes, National Public Radio, and others. Professor Goldstein has been the Executive Editor of the Review of Financial Studies since 2018 before which he was an editor for five years.

He also served as an editor of the Finance Department in Management Science and an editor of the Journal of Financial Intermediation. Professor Goldstein is a Research Associate at the National Bureau of Economic Research. He has served as an academic advisor at the Federal Reserve Banks of New York, Philadelphia, and Richmond, the Bank of Canada, the Bank for International Settlements, and the Committee for Capital Markets Regulation. He was the co-founder and the first president of the Finance Theory Group and served as a director of the American Finance Association, the Western Finance Association, and the Financial Intermediation Research Society. He is a frequent speaker in academic and policy forums around the world, and has acted as keynote speaker in leading academic conferences. He has taught various undergraduate, M.B.A., Ph.D., and executive education courses in finance and economics. Prior to joining Wharton, Professor Goldstein has served on the faculty of Duke University’s Fuqua School of Business. He had also worked in the research department of the bank of Israel.

ASSOCIATE FACULTY

53

ASSOCIATE FACULT Y

Lawrence A. Hamermesh Executive Director, Institute for Law & Economics; Professor Emeritus, Widener University Delaware Law School (Senior Special Counsel, Securities and Exchange Commission Division of Corporation Finance, 2010–2011)

Professor Hamermesh received a B.A. from Haverford College in 1973, and a J.D. from Yale Law School in 1976. Professor Hamermesh practiced law with Morris, Nichols, Arsht & Tunnell, Wilmington, Delaware, as an associate from 1976–84, and as a partner from 1985–94. Professor Hamermesh joined the faculty at Delaware Law School in 1994, where he served as the Ruby R. Vale Professor of Corporate and Business Law from 2005-2017, teaching and writing in the areas of corporate finance, mergers and acquisitions, securities regulation, business organizations, and professional responsibility. From 1995 to 2022, Professor Hamermesh was a member of the Council of the Corporation Law Section of the Delaware State Bar Association, which is responsible for the annual review and modernization of the Delaware General Corporation Law, and served as Chair of the Council from 2002 to 2004. In 2002 and 2003, he also served as the Reporter for the American Bar Association’s Task Force on Corporate Responsibility. From 2013 through 2020, he was the Reporter for the American Bar Association Business Law Section’s Corporate Laws Committee, which supervises the drafting of the Model Business Corporation Act. He is a member of the American Law Institute and has been appointed as an adviser to the project to prepare the Restatement of the Law, Corporate Governance. Professor Hamermesh also served as chair of the Board of Directors of the Music School of Delaware from 2018 to 2020.

Richard J. Herring Jacob Safra Professor of International Banking, Professor of Finance

Richard J. Herring is the founding director of the Wharton Financial Institutions Center, on which he served as a director from 1994-2020. From 2000 to 2006, he served as the Director of the Lauder Institute of International Management Studies and from 1995 to 2000, he served as Vice Dean and Director of Wharton’s Undergraduate Division. During 2006, he was a Professorial Fellow at the Reserve Bank of New Zealand and Victoria University.

He is the author of more than 150 articles, monographs and books on various topics in financial regulation, international banking, and international finance. At various times his research has been funded by grants from the National Science Foundation, the Ford Foundation, the Brookings Institution, the Sloan Foundation, and the Council on Foreign Relations.

Outside the university, he was co-chair of the US Shadow Financial Regulatory Committee and Executive Director of the Financial Economist’s Roundtable, a member of the Advisory Board of the European Banking Report in Rome, the Institute for Financial Studies in Frankfurt, and the International Centre for Financial Regulation in London. In addition, he is a member of the FDIC Systemic Risk Advisory Committee and the Systemic Risk Council. He served as co-chair of the Multinational Banking seminar from 1992–2004 and was a Fellow of the World

54

INSTITUTE FOR LAW AND ECONOMICS

Economic Forum in Davos from 1992–95. He was a member of the Group of 30 task force on the reinsurance industry, as well as an earlier study group on international supervision and regulation. Currently, he is an independent director of the DWS mutual fund complex and has served on the predecessor Deutsche Asset Management and Bankers Trust boards since 1990. He was also an independent director of the Aberdeen Japan and Singapore Funds.

Until November 2018, he was a director of Barclays Bank, Delaware.

Herring received his undergraduate degree from Oberlin College in 1968 and his PhD from Princeton University in 1973. He has been a member of the Finance Department since 1972. He is married, with two children, and lives in Bryn Mawr, Pennsylvania.

David Hoffman Deputy Dean and William A. Schnader Professor of Law

Professor Dave Hoffman is a widely-cited scholar who focuses his research and teaching on contract law. His work is typically interdisciplinary, built through collaboration with co-authors from a variety of fields. Current projects include the building and analysis of a dataset consisting of hundreds of thousands of Philadelphia residential leases, and associated evictions, as well as work developing a theory of externalities in contract doctrine. Other recent scholarship examined the technical and legal aspects of transactions occurring on and through blockchains. In the past, using qualitative and experimental methods, Hoffman has focused on how individuals experience contracting online, and what extra-legal goals firms might seek to accomplish using the “terms and conditions.” He has also engaged in the national conversation sparked by the #metoo movement, publishing a paper with a Penn Law student that argues that nondisclosure clauses in employment contracts violate public policy.

Robert W. Holthausen The Nomura Company Professor, Professor of Accounting and Finance, The Wharton School

Professor Holthausen earned his Ph.D. and his M.B.A. at the University of Rochester. He joined the Wharton School in 1989. Prior to joining the Penn faculty, he was a member of the accounting and finance faculty at the Graduate School of Business of the University of Chicago. Professor Holthausen’s main teaching has focused on Corporate Valuation, a course he created for Wharton when he arrived and has been teaching ever since. Since 1998, he has served as the academic director of Wharton’s Mergers and Acquisitions program. Professor Holthausen’s research interests include the effects of management compensation and governance structures on firm performance, the effects of information on volume and prices, corporate restructuring and valuation, the effects of large block sales on common stock prices, and numerous other topics. He is widely published in both finance and accounting journals. He is also the author of a detailed book on valuation entitled Corporate Valuation: Theory, Evidence and Practice (2nd edition).

Herbert Hovenkamp

Sarah E. Light

James G. Dinan University Professor

Associate Professor of Legal Studies & Business Ethics, The Wharton School

Herbert Hovenkamp is a Fellow of the American Academy of Arts and Sciences, and in 2008 won the Justice Department’s John Sherman Award for his lifetime contributions to antitrust law. In 2012, he served on the ABA’s Committee to advise the President-elect on antitrust matters. His principal writing includes The Opening of American Law: Neoclassical Legal Thought, 1870-1970 (Oxford, 2015); Antitrust Law (formerly with Phillip E. Areeda and Donald F. Turner) (22 vols., Aspen 200818); Principles of Antitrust (West, 2017); Creation Without Restraint: Promoting Liberty and Rivalry in Innovation (Oxford, 2012, with Bohannan); The Making of Competition Policy (Oxford, 2012, with Crane); The Antitrust Enterprise: Principle and Execution (Harvard, 2006); Federal Antitrust Policy: The Law of Competition and Its Practice (West, 5th ed. 2015); IP and Antitrust (2 vols., Aspen, 2017, with Janis, Lemley, Leslie, and Carrier); and Enterprise and American Law, 1836-1937 (Harvard, 1991). He has also co-authored casebooks in antitrust, property law, and a free open source casebook on innovation and competition policy. He has consulted on numerous antitrust cases for various government entities and private plaintiffs.

Professor Light’s research examines issues at the intersection of environmental law, corporate sustainability, and business innovation. Her articles have addressed the regulatory implications of the rise of transportation platforms like Uber and Lyft; how business innovation, such as Microsoft’s adoption of a private carbon fee, can be a form of private environmental governance; and the U.S. military’s role in stimulating private technological innovation to reduce fossil fuel use. Her articles have appeared in the Stanford Law Review, the Columbia Law Review, the Duke Law Journal, the UCLA Law Review, and the Vanderbilt Law Review, among others.

In 2019 and 2018, Professor Light was awarded Wharton Teaching Excellence Awards. In 2017, Professor Light was awarded an Excellence in Teaching Award in the MBA Program. In 2016, Professor Light was one of ten faculty nominated by the MBA student body for the Helen Kardon Moss Anvil Award for Outstanding MBA Teaching.

Jonathan Klick

David K. Musto is the Ronald O. Perelman Professor in Finance at the Wharton School, where he has been on the faculty since 1995. He has a B.A. from Yale University and a Ph.D. from the University of Chicago, and between college and graduate school he worked for Roll and Ross Asset Management in Los Angeles. He is an Associate Editor of the Journal of Finance. Most of his work, both theoretical and empirical, is in the area of consumer financial services, mutual funds and consumer credit in particular.

He has also published work on corporate and political voting, option pricing, short selling, and cross-border taxation.

Professor of Law

Professor Klick earned his Ph.D. in economics in 2002 and his J.D. in 2003 from George Mason University. He was the Jeffrey A. Stoops Professor of Law and Economics at Florida State University from 2005-2008. He has been a visiting professor at Columbia University, Northwestern University, the University of Southern California, and the University of Hamburg, and he was an Erskine Fellow in the Department of Finance and Economics at the University of Canterbury in Christchurch, New Zealand. Klick’s work lies in the area of empirical law and economics, and every year he thinks the Flyers will win the Stanley Cup.

Michael S. Knoll Theodore K. Warner Professor of Law; Professor of Real Estate, The Wharton School; Co-Director, Center for Tax Law & Policy

Professor Knoll joined the Penn Law and Wharton faculties from the University of Southern California Law School in 2000. He teaches courses in corporate finance and taxation in the Law School, the Wharton School, and the Wharton Executive Program. He is also an affiliate of the Zell/ Lurie Real Estate Center at the Wharton School, and the editor of Forensic Economic Abstracts, an electronic journal published by the Social Science Research Network. Professor Knoll’s undergraduate and J.D. degrees are from the University of Chicago. He also earned a Ph.D. in Economics at the University of Chicago. In 1990, he joined the USC Law faculty as an Assistant Professor and, in 1995, he was promoted to full Professor. He has been a Visiting Professor of Law at Georgetown (1999), Penn (1998–99), Virginia (2000), and Columbia (2009). Professor Knoll was also a John M. Olin Senior Research Scholar at Columbia University School of Law (1996–97), a Visiting Scholar at New York University Law School (1996–97), a John M. Olin Distinguished Visiting Professor of Law at Toronto University (1998), and a John Raneri Atax Fellow at the University of New South Wales (2011). Prior to entering teaching, he clerked for the Honorable Alex Kozinski on the U.S. Court of Appeals, Ninth Circuit, and served as legal advisor to the Vice Chairman of the U.S. International Trade Commission. He has published extensively in the fields of corporate finance, taxation, economics, and real estate finance.

David K. Musto Ronald O. Perelman Professor in Finance, The Wharton School

Gideon Parchomovsky Robert G. Fuller, Jr. Professor of Law

Professor Parchomovsky received his LL.B. from the Hebrew University of Jerusalem in 1993, his LL.M. from the University of California at Berkeley in 1995, and his S.J.D. from Yale Law School in 1998. Prior to joining the Penn Law faculty in fall 2002, Professor Parchomovsky served as an Associate Professor at Fordham Law School and a Visiting Lecturer at Yale Law School. His research interests include intellectual property law and property theory. His recent work focuses on unlocking synergies among sub-fields of intellectual property and devising innovative mechanisms for protecting property entitlements.

Andrew W. Postlewaite Harry P. Kamen Professor of Economics, School of Arts and Sciences; Professor of Finance, The Wharton School

Professor Postlewaite received his Ph.D. from Northwestern University in 1974 and joined the Penn faculty from the University of Illinois in 1980. He is past editor of American Economic Journal: Microeconomics, past editor of the International Economic Review and past co-editor of Econometrica.

He is emeritus director of the National Bureau of Economic Research and has served on the Executive Committee of the American Economic Association. He has published widely in the areas of strategic behavior and industrial organization.

ASSOCIATE FACULTY

55

ASSOCIATE FACULT Y

Michael R. Roberts William H. Lawrence Professor of Finance, The Wharton School

Michael R. Roberts is the William H. Lawrence Professor and Professor of Finance at the Wharton School of the University of Pennsylvania, a Research Associate of the National Bureau of Economic Research, and an affiliate of the Institute for Law and Economics and the Wharton Financial Institutions Center at the University of Pennsylvania. He also founded and heads the Wharton Financial Analytics initiative. Professor Roberts’ research spans corporate finance, banking, and investments. Recent work has examined equity pricing anomalies, collateralized loan obligation (CLO) performance, and machine learning in investment banking. His research has received several awards including two Brattle Prizes for Distinguished Paper published in the Journal of Finance, a Jensen Prize for best paper on Corporate Finance and Organizations published in the Journal of Financial Economics, and Best Paper awards from the Financial Management Association, Southwestern Finance Association, Rodney L. White Center for Financial Research, and Jacobs-Levy Equity Management Center for Quantitative Financial Research. Professor Roberts has served on numerous journal editorial boards, including the Journal of Finance of which he was a co-editor.

In addition to his research, Professor Roberts is an acclaimed teacher.

At the Wharton School, his accolades include the David W. Hauk Award, five Excellence in Teaching awards, and multiple nominations for the Helen Kardon Moss Anvil Teaching Award. While at Duke University, he won the Daimler-Chrysler Core Teaching Award at the Fuqua School of Business. He has taught undergraduate, M.B.A., Ph.D., and executive education courses in Finance, Economics, Statistics, and Data Analytics.

Outside of academia, Professor Roberts has worked as a financial engineer and consultant, providing service to many financial and nonfinancial corporations as well as expert testimony in corporate legal matters.

Professor Roberts earned his B.A. in Economics from the University of California at San Diego, and his M.A. in Statistics and Ph.D. in Economics from the University of California at Berkeley.

Amy Sepinwall Associate Professor of Legal Studies and Business Ethics, The Wharton School

Professor Sepinwall has two research streams. The first interrogates notions of complicity within institutions and in the commercial sphere. She is especially interested in cases where exercises of conscience threaten civic equality, as where businesses seek to refuse service to LGBTQ individuals.

The second addresses the moral and legal status of inanimate entities, like the corporation or AI. Within that stream, she focuses in particular on corporate constitutional rights and corporate criminal liability. Professor Sepinwall’s works have been published in venues such as the University of Chicago Law Review, Washington University Law Review, Minnesota Law Review, Hastings Law Journal, Journal of Corporation Law, Business Ethics Quarterly, and Philosophy Compass.

56

INSTITUTE FOR LAW AND ECONOMICS

David A. Skeel, Jr. S. Samuel Arsht Professor of Corporate Law

Professor Skeel joined the Penn faculty in 1999. He graduated in 1987 from the University of Virginia School of Law, where he was editor of the Virginia Law Review and a member of the Order of the Coif. He clerked for the Honorable Walter K. Stapleton on the U.S. Court of Appeals for the Third Circuit, and practiced for several years at Duane, Morris & Heckscher in Philadelphia, before joining the Temple University School of Law in 1990 Professor Skeel has also held visiting appointments at the University of Wisconsin Law School (1993–94), the University of Virginia School of Law (spring 1994), the University of Pennsylvania Law School (fall 1997), Georgetown University Law Center (fall 2004), NYU School of Law (fall 2013), and Harvard Law School (spring 2015). Professor Skeel specializes in corporate and commercial law and has written widely on corporate law, bankruptcy, and sovereign debt. He has also written on law and religion, and poetry and law. He has served on the oversight board for Puerto Rico since 2016.

Lucian (Luke) Taylor Associate Professor of Finance, The Wharton School

Luke Taylor earned his AB from Princeton University and MBA and PhD in Finance from the University of Chicago Booth School of Business.

Professor Taylor’s primary areas of research are empirical corporate finance and asset management. His research focuses on three main themes: sustainable investing, skill in fund management, and structural estimation in corporate finance. His articles have appeared in the Journal of Finance, Journal of Financial Economics, Review of Financial Studies, as well as nonacademic outlets such as the Wall Street Journal, CNN Money, and Forbes. His research has received the Fama/DFA Prize for best paper in the Journal of Financial Economics, the AQR Insight Award for Distinguished Paper, and others. Professor Taylor is an associate editor at the Journal of Financial Economics and Review of Finance.

Since joining Wharton, Professor Taylor has taught Venture Capital and the Finance of Innovation (FNCE 250/750) to undergraduate, MBA, and executive MBA students.

Michael L. Wachter

David Zaring

William B. and Mary Barb Johnson Professor of Law and Economics Emeritus

Elizabeth F. Putzel Professor of Legal Studies & Business Ethics, The Wharton School

Professor Wachter received his Ph.D. in economics from Harvard University and joined the Penn faculty in 1970. He held full professorships in three of Penn’s schools: the School of Arts and Sciences, where he has been professor of economics since 1976; the Wharton School, where he was professor of management, 1980–92; and the Law School, where he became professor of law and economics in 1984. He served as a Director of the Institute for Law and Economics from 1985 until his retirement in May 2020. He has been senior advisor to the Brookings Panel on Economic Activity in addition to consulting for the Federal Reserve’s Board of Governors and the Council of Economic Advisors. He has also served as a member of the National Council on Employment Policy and as a commissioner on the Minimum Wage Study Commission. Professor Wachter served as Deputy Provost of the University of Pennsylvania from July 1995 to January 1998, and as Interim Provost from January to December 1998. He is the author of numerous articles in law and economics, as well as in corporation law and labor law and economics.

David Zaring writes at the intersection of financial regulation, international law, and administrative law. He has written over fifty articles on those subjects, along with a monograph on The Globalized Governance of Finance. In addition to teaching at Wharton, he has taught at the Bucerius, Cambridge, Penn, Vanderbilt, and Washington & Lee law schools.

Susan M. Wachter Albert E. Sussman Professor of Real Estate, Professor of Finance, The Wharton School; Professor of City and Regional Planning, Penn Design; Co-Director, Penn Institute for Urban Research

From 1998 to 2001, as Assistant Secretary for Policy Development and Research, U.S. Department of Housing and Urban Development, Dr. Wachter served as the senior urban policy official and principal advisor to the Secretary on overall HUD policies and programs. At Wharton, Dr. Wachter was Chairperson of the Real Estate Department and Professor of Real Estate and Finance from July 1997 until her 1998 appointment to HUD. She founded and currently serves as Director of Wharton’s Geographical Information Systems Lab. Dr. Wachter served as a member of the Board of Directors of the Beneficial Corporation from 1985 to 1998 and of the MIG Residential REIT from 1994 to 1998 and of Momentum Realty from 2013 to 2017. She was the editor of Real Estate Economics from 1997 to 1999 and serves on the editorial boards for several real estate journals. Dr. Wachter has been a member of the Advanced Studies Institute of the Homer Hoyt Institute since 1989. Wachter co-founded and is co-director of the Institute for Urban Research at Penn. She is author of more than 150 scholarly publications and is the 2022 recipient of the Quigley Medal for Advancing Real Estate and Urban Economics as well as several awards for teaching excellence at The Wharton School. Dr. Wachter has been a member of the Financial Research Advisory Committee of the Office of Financial Research of the U.S. Department of Treasury and currently serves on the Bureau of Economic Analysis, Department of Commerce, Advisory Committee.

Bilge Yilmaz Wharton Private Equity Professor, Professor of Finance, The Wharton School

Prior to his current appointment, Bilge Yılmaz taught at the Graduate School of Business, Stanford University, and held visiting positions at the University of Chicago and INSEAD. He received his BS degrees in Electrical Engineering and Physics from Bo˘gaziçi University, and his PhD in Economics from Princeton University. His research focuses on corporate finance, political economy and game theory. Recently, he has written articles on corporate governance, credit rating agencies, hedge funds, private equity, security design, short-selling constraints, corporate bankruptcy, predatory lending and strategic voting.

ASSOCIATE FACULTY

57

PUBLICATIONS AND PAPERS

Publications and Papers Listed below is a sampling of recently published papers and work in progress by members of the Associate Faculty of the Institute for Law and Economics. ILE maintains a series of research papers and provides copies—electronic or paper—to interested parties upon request to ile@law.upenn.edu.

The Institute is a member of the Legal Scholarship Network (LSN), a subset of the Social Science Research Network. Current ILE research papers are posted in the University of Pennsylvania Law and Economics Research Paper Series on the LSN Web site. Abstracts as well as complete papers can be downloaded (www.ssrn.com/link/pennlawecon. html).

Faculty appointments are in the University of Pennsylvania Carey Law School unless otherwise noted.

Co-Directors

Ten Corporate and Securities Articles of 2021).

Jill E. Fisch, Saul A. Fox Distinguished Professor of Business Law; Co-Director, Institute for Law and Economics

Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman & Robert B. Thompson eds., Edward Elgar Publishing 2021).

The Uncertain Stewardship Potential of Index Funds, in Global Shareholder Stewardship Complexities, Challenges And Possibilities (Dionysia Katelouzou & Dan W. Puchniak eds, Cambridge University Press 2022).

Corporate Personhood and Limited Sovereignty, 74 Vand. L. Rev. 1727 (2021) (Symposium: “Professor Margaret Blair’s Contributions to Understanding the Role of Corporations in the Economy”).

Do ESG Mutual Funds Deliver on Their Promises? (with Q. Curtis & A. Robertson), 120 Mich. L. Rev. 393 (2021) (selected by the Corporate Practice Commentator as one of the Top Ten Corporate and Securities Articles of 2021).

Stealth Governance: Shareholder Agreements and Private Ordering, 99 Wash. U. L. Rev. 913 (2021) Mutual Fund Stewardship and the Empty Voting Problem, 16 Brook. J. Corp., Fin. & Com. L. 71 (2021).

Should Corporations Have a Purpose? (with S. Davidoff Solomon), 99 Tex. L. Rev. 1309 (2021).

Power and Statistical Significance in Securities Fraud Litigation (with J. Gelbach), 11 Harv. Bus. L. Rev. 55 (2021).

Synthetic Governance (with B. Hyun Ahn, P. Patatoukas & S. Davidoff Solomon), 2 Colum. Bus. L. Rev. 476 (2021).

Private Company Lies, 109 Geo. L. J. 353 (2020) (selected by the Corporate Practice Commentator as one of the Top Ten Corporate and Securities Articles of 2020).

Fiduciary Law and the Preservation of Trust in Business Relationships (with B. Broughman & D. G. Smith), in Fiduciaries And Trust: Ethics, Politics, Economics And Law (P. B. Miller & M. Harding eds., Cambridge 2020).

Business organizations: A Contemporary Approach (with A. Palmiter & F. Partnoy) (3d ed., West 2019).

Corporate Oversight and Disobedience, 72 Vand. L. Rev. 2013 (2019) (Symposium: "Corporate Accountability").

Trust, Financial Literacy and Financial Market Participation (with J. Seligman), J. Pens. Econ. & Fin. 1-31 (2021).

Corporate Disobedience, 68 Duke L.J. 709 (2019) (selected by the Corporate Practice Commentator as one of the Top Ten Corporate and Securities Articles of 2019).

The “Value of a Public Benefit Corporation (with S. Davidoff Solomon), in Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman & Robert Thompson eds., Elgar 2021).

Startup Governance, 168 U. Pa. L. Rev. 155 (2019) (selected by the Corporate Practice Commentator as one of the Top Ten Corporate and Securities Articles of 2019).

Can and Should Corporations Commit to a Voluntary Carbon Tax? in Business Law and the Transition To a Net Zero Economy (Andreas Engert, Luca Enriques, Georg Ringe, Umakanth Varottil & Thom Wetzer, eds., 2021).

Tech, Regulatory Arbitrage, and Limits, 20 Eur. Bus. Org. L. Rev. 567 (2019) (Oxford Business Law Symposium: “Centros and European Corporate Law: Twenty Years of Living Dangerously”).

Shareholder Collaboration (with S. Sepe), 98 Tex. L. Rev. 863 (2020).

Defined Contribution Plans and the Challenge of Financial Illiteracy (with A. Lusardi & A. Hasler), 105 Cornell L. Rev. 741 (2020).

Is Sustainability Disclosure Sustainable?, 107 Geo. L. J. 923 (2019).

Elizabeth Pollman, Professor of Law; Co-Director, Institute for Law and Economics The Rise of Regulatory Affairs in Innovative Startups, in The Cambridge Handbook on Law and Entrepreneurship in the United States (D. Gordon Smith, Brian Broughman & Christine Hurt eds., Cambridge University Press 2022).

The Supreme Court and the Pro-Business Paradox, 135 Harv. L. Rev. 220 (2021).

The Corporate Governance Machine (with D. Lund), 121 Colum. L. Rev. 2563 (2021) (selected by the Corporate Practice Commentator as one of the Top

58

The History and Revival of the Corporate Purpose Clause, 99 Tex. L. Rev. 1423 (2021) (Symposium: “Governance Wars: Contesting Power and Purpose in the 21st Century Corporation”).

INSTITUTE FOR LAW AND ECONOMICS

Corporate Governance Beyond Economics, in Corporate Contract In Changing Times: Is The Law Keeping Up? (S. Davidoff Solomon & R. Stuart Thomas eds., University of Chicago Press 2019).

Quasi Governments and Inchoate Law: Berle’s Vision of Limits on Corporate Power, 42 Seattle U. L. Rev. 617 (2019) (Berle X Symposium: “Berle and His World”).

Lisa M. Fairfax, Presidential Professor of Law; Co-Director, Institute for Law and Economics Board Committee Charters and ESG Accountability, __ Harv. Bus. L. Rev. __ (forthcoming 2022) .

Empowering Diversity Ambition, 75 Vand. L. Rev. En Banc 131 (2022).

Stakeholderism, Corporate Purpose and Credible Commitment, 108 Va. L. Rev. __ (2022).

Racial Reckoning with Economic Inequities, 106 Cornell L. Rev. online 68 (2021).

The Shareholder-Stakeholder Alliance: Exposing the Link

between Shareholder Power and the Rise of a Corporate Social Purpose, in Research Handbook On Corporate Purpose And Personhood (Elizabeth Pollman & Robert Thompson, eds., Elgar 2021).

Just Say Yes? The Fiduciary Duty Implications of Directorial Acquiescence, 106 Iowa L. Rev. 102 (2021).

Whitman and the Fiduciary Relationship Conundrum, 89 Fordham L. Rev. 409 (2020).

From Apathy to Activism: The Emergence, Impact and Future of Shareholder Activism as the New Corporate Governance Norm, 99 B. U. L. Rev. 1301 (2019).

Social Activism Through Shareholder Activism, 76 Wash. & Lee L. Rev. 1129 (2019).

All on Board? Board Diversity Trends Reflect Signs of Promise and Concern, 87 Geo. Wash. L. Rev. (2019).

The Regulator’s Handbook (Brookings Institution Press, forthcoming).

Who Wins, Who Loses: Inequality And The Distribution Of Regulatory Impacts (Brookings Institution Press forthcoming).

Improving The World Through Better Regulatory Law And Policy (Edward, Elgar forthcoming).

Algorithm vs. Algorithm (with A. Lai), 72 Duke L. J. 1281 (2022).

Antitrust by Algorithm (with A. Lai), 2 Stan. J. Of Computational Antitrust 1 (2022).

Algorithmic Administrative Justice (with S. Appel), in The Oxford Handbook Of Administrative Justice (Marc Hertogh, Richard Kirkham, Robert Thomas and Joe Tomlinson, eds., Oxford University Press 2022).

Associate Faculty

Compliance Management Systems: Do They Make a Difference? (with J. Nash), in Cambridge Handbook Of Compliance 571 (Cambridge University Press, D. Sokol & B. van Rooij eds., 2021).

David Abrams, Professor of Law, Business Economics, and Public Policy

AI in Adjudication and Administration (with L. Ben Dor), 86 Brook. L. Rev. 791 (2021).

The Law and Economics of Stop-and-Frisk, 46 Loy. L. Rev. 369 (2014).

Administrative Law in the Automated State, 150(3) Dædalus 104 (2021).

Tom Baker, William Maul Measey Professor of Law and Health Sciences

Unrules (with G. Scheffler and D. Walters), 73 Stan. L. Rev. 885 (2021).

A New Framework for the Relationship Between Government and Insurance, with: Lessons for Ransomware Insurance (with A. Shortland), __ Reg. & Governance __ (forthcoming 2022).

What Regulators Can Learn from Global Health Governance, 16 Global Health Governance 14 (2021).

The Securities Law Implications of Financial Literacy, 104 Va. L. Rev. 1065 (2018).

The Pandemic and the Past & Future of Insurance Law & Practice (with K. Abraham), 71 Depaul L. Rev. 1001 (Clifford Symposium)(2021).

Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market, 62 B.c.l. Rev. 59 (reviewed in Jotwell)(2020).

How Liability Insurers Protect Patients and Improve Safety (with C. Silver), 68 Depaul L. Rev. 209 (2019).

Behavioral Economics, Decumulation, and the Regulatory Strategy for Robo Advice (with B. Dellaert), in The Disruptive Impact Of Fintech On Retirement Systems, (Olivia S. Mitchell, ed. forthcoming 2019).

William W. Bratton, Nicholas F. Gallicchio Professor of Law Emeritus Team Production Revisited, 74 Vand. L. Rev. 1539 (2021).

Reconsidering the Evolutionary Erosion Account of Corporate Fiduciary Law, 76 Bus. Law. 1157 (2021).

Corporate Finance: Cases And Materials (Foundation Press, 9th ed. 2021).

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science Influence by Intimidation: Business Lobbying in the Regulatory Process (with A. Acs), __J. Of Law, Econ.

And Organiz. __ (forthcoming).

Pandemic Federalism, __ Wayne L. Rev. __ (forthcoming).

Assessing Automated Administration (with A. Lai), in Oxford Handbook Of Ai Governance (Justin Bullock et al., eds., forthcoming).

From Negative to Positive AI Rights (with K. Hefter), __ Wm. & Mary Bill Of Rights J. __(forthcoming).

Regulating For A Better Tomorrow (Edward, Elgar forthcoming).

Managing Regulatory Institutions, in The Handbook On Regulatory Authorities (Martino Maggetti, Fabrizio Di Mascio, Alessandro Natalini, eds., Edward Elgar forthcoming).

Administrative Law: Governing Economic and Social Governance, in Oxford Research Encyclopedia Of Economics And Finance (Jonathan H. Hamilton, et al., eds., Oxford University Press forthcoming).

Contracting for Algorithmic Accountability (with E. Lampmann), 6 Admin. L. Rev. Accord 175 (2021).

Algorithmic Regulation: Machine Learning as Governance Tool, The Algorithmic Society: Power, Knowledge And Technology In The Age Of Algorithms 35-52 (Routledge, Marc Schuilenburg & Rik Peeters, eds., 2021).

Administrative Law in a Time of Crisis: Comparing National Responses to COVID-19 (with N. Mahboubi), 73 Admin. L. Rev. 1 (2021) (translated into Turkish and published in the Ankara Hacı Bayram Veli University Faculty of Law Review 26:743-771 (2022).

Algorithmic Governance and Administrative Law (with S. Appel), in Cambridge Handbook On The Law Of Algorithms: Human Rights, Intellectual Property, Government Regulation 162-181 (Woodrow Barfield ed., Cambridge University Press 2021).

Environmental Soft Law as a Governance Strategy, 61 Jurimetrics 19 (2020) (peer-reviewed).

Lawas Scapegoat, The Crisis Of Confidence In Legislation 337-365 (Hart/Nomos, Maria De Benedetto, Nicola Lupo & Nicoletta Rangone, eds., 2020).

Social Science and the Analysis of Environmental Policy (with S. Starobin), 37 Rev. Of Pol’y Res. 573 (2020) (peer-reviewed).

Litigating EPA Rules: A Fifty-Year Retrospective of Environmental Rulemaking in the Courts (with D. Walters), 70 Case W. Res. L. Rev. 1007 (2020).

Whither the Regulatory ‘War on Coal’? Scapegoats, Saviors, and Stock Market Reactions (with D. Walters), 47 Ecology L.q. 1 (2020).

Illuminating Regulatory Guidance, 9 Mich. J. Envtl. & Admin. L. 243 (2020).

Management-Based Regulation (with S. Starobin), in Policy Instruments In Environmental Law 292-307 (Kenneth R. Richards and Josephine van Zeben, eds.

Edward Elgar 2020).

Deceptive Deregulation (with N. Sarin and S. Shapiro), The Regulatory Review (November 2, 2020).

The Government’s Hidden Superpower: ‘Unrules’ (with G. Scheffler and D. Walters), Fortune (October 30, 2020).

Vincent Glode, Associate Professor of Finance, The Wharton School

Herbert Hovenkamp, James G. Dinan University Professor

Banks and Climate Governance (with C. Skinner), 121 Colum. L. Rev. 1895 (2021).

Conscience in Commerce, ___ Conn. L. Rev. ___ (forthcoming 2021).

To Pool or Not to Pool? Security Design in OTC Markets (with C. Opp and R. Sverchkov), __ J. Of Fin. Econ. __ (forthcoming).

Worker Welfare and Antitrust, __ Univ. Chi. L. Rev. (2022) (forthcoming).

National Parks, Incorporated, 169 Univ. Of Pa. L. Rev. 33 (2020).

Collective Goods and the Court (with E. Orts), 97 Wash.

U. L. Rev. 637 (2020).

ANTITRUST LAW (with the late P. Areeda & the late D. Turner) (New York: Kluwer/Aspen, 21 volumes, 4th & 5th editions, 2022).

Insuring Nature (with C. Kousky), 69 Duke L. J. 323 (2019).

David A. Skeel, Jr., S. Samuel Arsht Professor of Corporate Law

Antitrust Interoperability Remedies, __ Col. L. Rev. Forum __ (forthcoming 2022).

The Role of Universities in Private Environmental Governance Experimentalism, 34 Organiz. & Environ.

466 (2019).

The Corporation as Trinity, __ Seattle U. L. Rev. __ (forthcoming 2022).

The Invention of Antitrust, ___ S. Cal. L. Rev. __ (forthcoming 2022).

The Law of the Corporation as Environmental Law, 71 Stan. L. Rev. 1 (2019).

Digital Cluster Markets, __ Colum. Bus. L. Rev. __ (forthcoming 2021).

David K. Musto, Ronald O. Perelman Professor in Finance, The Wharton School

Vertical Control, Nyu L. Rev. Online (forthcoming 2021).

Contracts with (Social) Benefits: The Implementation of Impact Investing (with C. Geczy, J. Jeffers, and A. Tucker), __ J. Fin Econ. __ (forthcoming).

Over-the-Counter vs. Limit-Order Markets: The Role of Traders' Expertise (with C. Opp), 33 Rev. Fin. Stud. 866 (Feb. 2020).

On the Efiiciency of Long Intermediation Chains (with C. Opp and X. Zhang), 38 J. Of Fin. Intermed. 11 (2019).

Itay Goldstein, Joel S. Ehrenkranz Family Professor of Finance, The Wharton School Commodity Financialization and Information Transmission (with L. Yang), __ J. Fin. __ (forthcoming).

Financial Fragility in the COVID-19 Crisis: The Case of Investment Funds in Corporate Bond Markets (with A. Falato and A. Hortascu), 123 J. Mon. Econ. 35 (Oct. 2021) Mutual Fund Flows and Fluctuations in Credit and Business Cycles (with A. Ben-Rephael and J. Choi), 139:1 J. Fin. Econ. 84 (Jan. 2021).

Credit Rating Inflation and Firms’ Investments (with C. Huang), 75:6 J. Fin. 2929 (Dec. 2020).

Monetary Stimulus and Bank Lending, (with I. Chakraborty & A. MacKinlay), 136:1 J. Fin. Econ. 189 (Apr. 2020).

Competitive Harm from Vertical Mergers, 39 Rev. Indus.

Org. ___ (forthcoming 2021).

Antitrust and Platform Monopoly, 130 Yale L.J. 1952 (2021).

Antitrust Harm and Causation, 99 Wash. Univ. L. Rev. 787 (2021).

The Looming Crisis in Antitrust Economics, 101 B.U.L. Rev. 489 (2021).

Framing the Chicago School of Antitrust Analysis (with F. Scott Morton), 168 U. Pa. L. Rev. 1843 (2020).

Commercial Paper, chapter in Handbook Of Fixed Income Securities, (Ninth Ed., Frank Fabozzi, editor, forthcoming).

Robo-Advisors and the Growth of Index-Fund Investing, ___ Fin Plan. Rev. ___ (forthcoming).

Gideon Parchomovsky, Robert G. Fuller Jr. Professor of Law A Remedy for the Least Well Off (with A. Stein), 75 Vand. L. Rev. 239 (2022) .

Good Disclosure, Bad Disclosure (with L. Yang), 131:1 J. Fin. Econ. 118 (Jan. 2019).

FRAND and Antitrust, 105 Cornell L. Rev. 1683 (2020).

Are All Risks Created Equal? Rethinking the Distinction Between Legal and Business Risk in Corporate Law (with A. Libson), 102 B.u. L. Rev. (forthcoming 2022).

Lawrence A. Hamermesh, Executive Director, Institute for Law & Economics; Professor Emeritus, Widener University Delaware Law School (Senior Special Counsel, Securities and Exchange Commission Division of Corporation Finance, 2010–2011)

Statement to House Judiciary Committee Inquiry into Competition in Digital Markets (2020).

Propertizing Fair Use (with A. Bell), 71 Virginia L. Rev. 1255 (2021).

Apple vs. Pepper: Rationalizing Antitrust’s Indirect Purchaser Rule, 120 Colum. L. Rev. Forum 14 (2020).

The Agent’s Problem (with A. Eckstein), 70 Duke L. J. 1509 (2021).

Optimizing the World’s Leading Corporate Law: A Twenty-Year Retrospective and Look Ahead (with J. Jacobs & L. Strine, Jr.), 77 Bus. Law. 321 (2022).

FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION AND ITS PRACTICE (6th ed., West Academic Hornbook Series 2020).

Corporate Law for Good People (with A. Libson), 115 Nw. U. L. Rev. 1125 (2021).

A Babe in the Woods: An Essay on Kirby Lumber and the Evolution of Corporate Law, 45 Del. J. Corp. L. 125 (2020).

IP AND ANTITRUST: AN ANALYSIS OF ANTITRUST PRINCIPLES APPLIED TO INTELLECTUAL PROPERTY LAW (with M. Janis, M. Lemley, C. Leslie, & M. Carrier) (3d ed., Kluwer/Aspen 2017-2020).

Delaware Corporate Fiduciary Law: Searching for the Optimal Balance (with L. Strine, Jr.), in Oxford Handbook Of Fiduciary Law (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., Oxford Univ. Press 2019).

The Role of Directors in M&A Transactions: A Governance Handbook for Directors, Management and Advisors (co-editor, with D. Frankle, M. Halloran and P. Vella), ABA Business Law Section (2019).

Richard Herring, Jacob Safra Professor of International Banking, Professor of Finance, The Wharton School Objectives and Challenges of Stress Testing (with T. Schuermann), in Handbook Of Financial Stress Testing, edited by J. Farmer, A. Kleinnijenhuis, T. Schuermann, and T. Wetzer, (Cambridge University Press 2022).

Corporate Complexity and Systemic Risk: A Progress Report, pp. 2-66 (with J. Carmassi), in The Oxford Handbook Of Banking (3rd ed.), edited by A. Berger, P. Molyneux, and J. Wilson, (Oxford University Press 2019).

David Hoffman, Deputy Dean and William A. Schnader Professor of Law, University of Pennsylvania Law School Nonparty Interests In Contract Law (with C. Hwang and O. Ben-Shahar), 171 U. Penn. L. Rev. __ (forthcoming 2022).

Leases as Forms (with A. Strezhnev), 19 J. Emp. Leg. Stud. 90 (2022).

The Social Cost of Contract (with C. Hwang), 121 Colum.

L. Rev. 979 (2021).

Transactional Scripts in Contract Stacks (with S. Cohney), 105 Minn. L. Rev. 319 (2020).

Hushing Contracts (with E. Lampmann), 97 Wash U L. Rev. 165 (2019).

Coin-Operated Capitalism (with S. Cohney, J. Sklaroff and D. Wishnick), 119 Colum. L. Rev. 591 (2019).

Robert W. Holthausen, The Nomura Securities Company Professor, Professor of Accounting and Finance, The Wharton School CORPORATE VALUATION: THEORY, EVIDENCE AND PRACTICE (with M. Zmijewski)(2nd edition, Cambridge Business Publishers 2020).

Reversing the Fortunes of Active Funds (with A. Libson), 99 Texas L. Rev. 581 (2021).

Toward a Horizontal Fiduciary Duty in Corporate Law (with A. Eckstein), 102 Cornell L. Rev. 1319 (2019).

Pandemic Hope for Chapter 11 Financing, 131 Yale L.J. Forum 315 (2021).

Distorted Choice in Corporate Bankruptcy, 130 Yale L.J. 366 (2020).

Lucian (Luke) Taylor, Associate Professor of Finance, The Wharton School Dissecting Bankruptcy Frictions (with W. Wei Dou, Wei Wang, and Wenyu Wang), 142 J. Fin. Econ. 975 (2021).

Sustainable Investing in Equilibrium (with L. Pastor & R. Stambaugh), 142 J. Fin. Econ. 550 (2021).

Fund Tradeoffs (with L. Pastor & R. Stambaugh), 138 J. Fin. Econ. 614 (2020).

Michael L. Wachter, William B. and Mary Barb Johnson Professor of Law and Economics Emeritus Finding the Right Balance in Appraisal Litigation: Deal Price, Deal Process, and Synergies (with L. Hamermesh), 73 Bus. Law 961 (Fall 2018).

The Importance of Being Dismissive: The Efficiency Role of Pleading Stage Evaluation of Shareholder Litigation (with L. Hamermesh), 42 J. Corp. L. 597 (2017).

Susan M. Wachter, Albert E. Sussman Professor of Real Estate, Professor of Finance, The Wharton School; Co-Director, Penn Institute for Urban Research Lending competition, regulation, and nontraditional mortgages (with A. Acolin and X. An), 50:2 Real Est. Econ. 340 (2022).

GSEs: Their Viability as Public Utilities (with R. Cooperstein and K. Fears), 31:1 Housing Pol’y Debate 33 (Feb. 2021).

Platforms and the Rule of Reason: The American Express Case, 2019 Colum. Bus. L. Rev. 35 (2019).

Toward the Personalization of Copyright Law (with A. Libson), 86 U. Chi. L. Rev. 527 (2019).

The Mortgage Market as a Stimulus Channel in the Covid-19 Crisis (with E. Golding, L. Goodman, and R. Green), 31:1 Housing Pol’y Debate 66 (Feb. 2021).

Is Antitrust’s Consumer Welfare Principle Imperiled?, 45 J. Corp. L. 65 (2019).

Andrew W. Postlewaite, Harry P. Kamen Professor of Economics, School of Arts and Sciences; Professor of Finance, The Wharton School

Price Discovery Limits in the Credit Default Swap Market in the Financial Crisis (with A. Pavlov and E. Schwartz), 62:2 J. Real Est. Fin. & Econ. 165 (February 2021).

The Complexity of the Consumer Problem (with I. Gilboa and D. Schmeidler), 75(1) Res. In Econ. 96 (2021).

Flood Risk and the U.S. Housing Market (C. Kousky, H. Kunreuther, and M. LaCour-Little), 29:1 J. Housing Res. S23 (Nov. 2020).

On the Welfare Cost of Consumption Fluctuations in the Presence of Memorable Goods (with R. Hai and D. Krueger), 11 Quantitative Econ. 1177 (2021).

Why the Ability-to-Repay Rule is Vital to Financial Security (with P. McCoy), 108:3 Geo. L. J. 649 (Mar. 2020).

Observational Implications of Non-Exponential Discounting (with S. Morris), 71(2) Revue Economique 313 (2020).

Mortgage Risk Premiums during the Housing Bubble (with A. Levitin & D. Lin), 60 J. Real Est. Fin. & Econ. 421 (2020).

What are Axiomatizations Good For? (with I. Gilboa, L. Samuelson and D. Schmeidler), 86 Theory And Decision 339 (2019).

Endowments and Minority Homeownership (with A. Acolin & D. Lin), 21:1 Cityscape 5 (Mar. 2019).

Regulation and the Marginalist Revolution, 71 Fl. L. Rev. 455 (2019).

Anticompetitive Mergers in Labor Markets (with I. Marinescu), 94 Ind. L.J. 1031 (2019).

Jonathan Klick, Professor of Law Review of the Literature on Diversity on Corporate Boards, Amer. Enterprise Inst. Monograph (2021).

Is the Digital Economy Too Concentrated?, Global Antitrust Institute, Report on the Digital Economy (2020).

Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust (with J. Wright, E. Dorsey, and J. Rybnicek), 51:1 Ariz. St. L.J. 293 (2019).

Michael S. Knoll, Theodore K. Warner Professor of Law, Professor of Real Estate, The Wharton School; Co-Director, Center for Tax Law & Policy

Michael R. Roberts, William H. Lawrence Professor of Finance, The Wharton School This History of the Cross-Section of Stock Returns (with J. Linnainmaa), 31:7 Rev. Fin. Stud. 2606 (2018).

Steiner v. Utah: Designing a Constitutional Remedy (with R. Mason), 95 Tax Notes State 845 (2020).

Amy Sepinwall, Associate Professor of Legal Studies and Business Ethics, The Wharton School

Why the Supreme Court Should Grant Certiorari in Steiner v. Utah (with R. Mason), 95 Tax Notes State 377 (2020).

Corporate Coverture, __ J. Corp. L. __(forthcoming 2022).

The Tax Cut and Jobs Act’s Incorporation “Incentives,” Issue Brief, Penn Wharton Public Policy Initiative, vol. 7, no. 8, October 2019.

The Dormant Foreign Commerce Clause After Wynne (with R. Mason), 39 Va. Tax Rev. 357 (2020).

The TCJA and the Questionable Incentive to Incorporate, Part 2, 162 Tax Notes 1447 (2019).

The TCJA and the Questionable Incentive to Incorporate, 162 Tax Notes 977 (2019).

Sarah E. Light, Associate Professor of Legal Studies & Business Ethics, The Wharton School Greenwashing and the First Amendment (with A. Shanor), 122 Colum. L. Rev. ___ (forthcoming 2022-23).

Breaking Down Bigotry, Book Review Essay of Linda McClain’s Who’s the Bigot? Constitutional Commentary (forthcoming 2022).

Artificial Moral Agents, Collective Responsibility: Perspectives From Political Philosophy And Social Ontology (Sade Hormio and Bill Wringe eds., Springer Publishing 2022).

The Corporation in Our Polity, in Routledge Handbook Of Philosophy, Politics, And Economics (Ppe) (Christopher Melenovsky ed., forthcoming 2022).

Feminist Rewrite of Citizens United: A Commentary, Feminist Judgments: Rewritten Corporate Law (Anne Choike, Usha Rodrigues, and Kelli Alces Williams eds., Cambridge University Press forthcoming 2022).

Bilge Yilmaz, Wharton Private Equity Professor, Professor of Finance, The Wharton School Regulating a Model (with Y. Leitner), 131:2 J. Fin. Econ.

251 (2019).

David Zaring, Elizabeth F. Putzel Professor of Legal Studies & Business Ethics, The Wharton School Banks, Corporatism, and Administrative Law, 108 Iowa L. Rev. ___ (forthcoming 2023).

Systemically Important Technology (with K. Werbach), 102 Tex. L. Rev. ___ (forthcoming 2023).

Enforcement Against the Largest Banks, 7 J. Fin. Reg. 1 (2021).

The Government’s Economic Response to the COVID Crisis, 40 Rev. Banking & Fin. L. 315 (2020).

Towards Separation of Powers Realism, 37 Yale J. on Reg. 708 (2020).

Modernizing the Bank Charter, 61 Wm. & Mary L. Rev. 1397 (2020).

The Foreign Affairs of the Federal Reserve (with P. Conti-Brown), 44 J. Corp. L. 665 (2019).

(Re)-Imagining Executive Criminal Liability, ___ J. Corp.

L. __(forthcoming 2022).

PUBLICATIONS AND PAPERS

59

ASSOCIATE FACULT Y

60

INSTITUTE FOR LAW AND ECONOMICS

ILE CONTRIBUTORS 2021-2022 Funding for the Institute for Law and Economics comes from a diverse group of individuals, law firms, corporations, and foundations who endorse our work each year. We are pleased and privileged to recognize and thank the ILE contributors whose generous contributions underwrite the activities described in this report. We deeply appreciate their support and their active participation in institute programs.

Benefactors $25,000 or above Robert L. Friedman Sullivan & Cromwell LLP Wachtell, Lipton, Rosen & Katz Sponsors $15,000 to $24,999 Analysis Group Apollo Management, L.P. Bernstein Litowitz Berger & Grossmann LLP Martin J. Bienenstock Cadwalader, Wickersham & Taft LLP Steven M. Cohen Cooley LLP Cornerstone Research Cravath, Swaine & Moore LLP Debevoise & Plimpton LLP Dechert LLP Delaware Department of State DuPont Evercore John G. Finley FMC Corporation Fried Frank

Joel E. Friedlander Freshfields Bruckhaus Deringer Eduardo Gallardo Joseph D. Gatto Goldman Sachs & Co. Perry Golkin, Mrs. Donna O’Hara Golkin, and The Perry and Donna Golkin Family Foundation Houlihan Lokey Hughes Hubbard & Reed LLP Innisfree M&A Incorporated Sarkis Jebejian and Kirkland & Ellis LLP Roy J. Katzovicz Daniel Lee Ted S. Lodge MacKenzie Partners, Inc. Merck & Co., Inc. Morgan, Lewis & Bockius LLP Morris, Nichols, Arsht & Tunnell LLP Potter Anderson & Corroon, LLP Allan N. Rauch Richards, Layton & Finger, P.A. Robinhood Ropes & Gray LLP Seyfarth Shaw LLP

Shearman & Sterling LLP Sidley Austin LLP Simpson Thacher & Bartlett LLP Skadden, Arps, Slate, Meagher & Flom LLP Vanguard White & Case LLP Wilson Sonsini Goodrich & Rosati Young Conaway Stargatt & Taylor, LLP Members $5,000 to $14,999 Jeffrey M. Gorris William R. Harker Myron J. Resnick Kenneth W. Willman Donors $1,000 up to $4,999 Christopher Foulds Mary J. Grendell James A. Ounsworth Helen P. Pudlin

INSTITUTE INVESTORS

61

LECTURES

Institute for Law & Economics University of Pennsylvania 3501 Sansom Street, Philadelphia, PA 19104–6204 215.898.7719, www.law.upenn.edu/ile/ September 2022

Lisa M. Fairfax, Co-Director Presidential Professor of Law 215-746-2243 fairfaxl@law.upenn.edu

Jill E. Fisch, Co-Director Saul A. Fox Distinguished Professor of Business Law 215.746.3454 jfisch@law.upenn.edu

Elizabeth Pollman, Co-Director Professor of Law 215.898.4564 epollman@law.upenn.edu

Lawrence A. Hamermesh, Executive Director 215.746.4576 lhamerme@law.upenn.edu

ILE is a leading center for corporate law, governance, business, and finance. It is a joint initiative of the University of Pennsylvania Carey Law School, the Wharton School, and the Department of Economics.

Founded in 1980 by Professor Michael L. Wachter, the Institute was created to advance cross-disciplinary research and bring together academics, lawyers, business leaders, judges, policymakers, and regulators. Our innovative roundtables and conferences serve these goals by provoking in-depth discussions of timely issues. Public lectures and academic workshops further our mission to bridge the gap between academics and practitioners in our key areas of focus.

The Institute for Law and Economics has distinctive advantages. We draw on the research and teaching strengths of the Law School, the Wharton School, and the Department of Economics. Our geographic location is optimal, allowing us to bring together participants from Washington and New York for full-day meetings and still get everyone home in time for dinner. We have been able to call on the expertise of the Law School alumni who occupy key positions in law, business, and government. And, critically, we have an extraordinarily distinguished cadre of board members and sponsors who are willing to give of their time and expertise to make our programming a success.

In recent years, we have launched a variety of new projects and initiatives. The ILE/Wharton Finance Seminars promote scholarly engagement between law and finance scholars through a series of workshops and dinners. Each year, ILE collaborates with the Wharton School’s Financial Institutions Center and NYU’s Pollack Center for Law and Business to host the Penn/NYU Symposium on Law and Finance, a flagship for the promotion of interdisciplinary research. Our Insights from Practice and Chancery Court Programs explore cutting-edge topics in business and law in small-group seminars and events. The Women in Business Law Initiative aims to promote the advancement of women in the profession. The Delaware Corporate Law Resource Center provides unique resources about the development of corporate law, including oral histories of nearly a half century of iconic decisions of the Delaware courts. The Lipton Archive, collecting the memoranda and scholarship of Martin Lipton, provides another rich resource for research and teaching.

The Institute is led by outstanding Faculty and Directors with active participation and support from its Board of Advisors. Funding for ILE comes from a diverse group of corporations, law firms, foundations, and individuals who endorse our work each year.