* Partner, Wachtell, Lipton, Rosen & Katz, Law Clerk to the Honorable Ruth Bader Ginsburg, October Term 1998.
In Borrowing Equality, Professor Atkinson deftly demonstrates Congress’s nonsensical bifurcation of the twin concepts of “credit” and “debt,” whereby it celebrates and encourages the former and regulates and punishes the latter. She then shows that, in refusing to acknowledge the harmful consequences of indebtedness while legislating credit-based solutions to inequality, these credit policies in fact entrench the very hierarchies...
For twenty-five years, the Federal Trade Commission (FTC) has brought enforcement actions against companies for data breaches using its statutory authority under Section 5 of the FTC Act to police “unfair or deceptive acts or practices.” While the Commission originally brought cases under the “deceptive” prong of Section 5, more recent cases have been brought under the vague “unfairness” prong. These cases allege that a company that...
On September 30, 2019, California Governor Gavin Newsom signed into law Senate Bill 206, otherwise known as “The Fair Pay to Play Act.” When it goes into effect, the Fair Pay to Play Act will allow student-athletes enrolled in California colleges and universities to be compensated for the use of their name, images, and likenesses […]
The following Piece reflects the revised and extended remarks given by Barbara Novick at the Harvard Roundtable on Corporate Governance, November 6, 2019. Thank you to Lucian Bebchuk for inviting me to share some thoughts on investment stewardship to kick off the 2019 Corporate Governance Roundtable. I. Academic Theories on Investment Stewardship Corporate governance and […]
Index funds own an increasingly large proportion of American public companies. The stewardship decisions of index fund managers—how they monitor, vote, and engage with their portfolio companies—can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policymaking can improve it, is thus critical for corporate law scholarship. In this Article...
Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and...
Recent advances in machine learning have reinforced the competitive position of leading online platforms. This Essay identifies two important sources of platform rivalry and proposes ways to maximize their competitive potential under existing antitrust law. A nascent competitor is a threatening new entrant that, in time, might become a full-fledged platform rival. A platform’s acquisition of a nascent competitor should be prohibited as an unlawful...
In June 2018, the Supreme Court decided Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. and resolved a circuit split regarding the amount of deference courts must give to amicus briefs filed by foreign sovereign governments. The Court articulated a new standard of deference, “respectful consideration,” but did not take the opportunity to give weight or meaning to it. This Note argues that more must be done to develop the respectful...
The financial crisis exposed major fault lines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency—the Consumer Financial Protection Bureau—and changed the structure and function of these markets.
Consumer advocates cheered reforms as welfare enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now...