Business Law

Precarious Work: The Need for Flextime Employment Rights and Proposals for Reform

Berkeley Journal of Employment & Labor Law, Vol. 37, Issue 1 (2016)

Robert Bird

Millions of Americans are under intense pressure to balance work and family responsibilities. The feeling of overwork is rampant, with nearly half of employees feeling overworked or overwhelmed by their workplace responsibilities. This Article argues for a suite of legal protections that would allow working families, especially single-parent and low-income families, basic access to the rights and protections of flexible work. These protections include amending FLSA rides to better protect non-exempt workers from intrusions into their non-working time, as well as expanding the use of the FMLA to encourage more use of flexible leave. This article also recommends adoption of right-to-request legislation, enabling employees to request a flexible schedule and have that request meaningfully evaluated by their employer without fear of retaliation. Full article.

Turning Corporate Compliance into Competitive Advantage

University of Pennsylvania Journal of Business Law, Vol. 19, No.2 (2017)

Robert Bird, Stephen Park

Compliance is a core concern for corporate governance. Firms devote tremendous amounts of money, personnel, and attention to ensure compliance with regulatory mandates — and yet compliance failures proliferate. This is because the current static and binary view of compliance hinders both efficient compliance by firms and effective regulation by government. Understanding the reality that compliance is both dynamic and driven by efficiency empowers firms to evolve past mere conformance and into wealth maximizing innovation. This Article develops an efficient investment-risk (EIR) model of compliance that captures the tradeoffs between cost and risk, parses the oft-commingled concepts of technical efficiency and allocative efficiency, and enables firms to obtain a competitive advantage through compliance. We also turn our attention to regulators, and highlight how the EIR model can enhance regulatory design, foster regulator-firm cooperation, and advance the mutual goals of business and society. Full article.

Special Economic Zones and the Perpetual Pluralism of Global Trade and Labor Migration

Georgetown Journal of International Law, Vol. 47, No.4 (2016)

Stephen Park

When we think about the legal drivers of globalization, why does the free movement of people lag so far behind the free movement of goods and services? While agreements to lower barriers to cross-border trade are enforced by global legal rules and institutions, national governments indisputably control and limit cross-border labor migration. However, the relationship between trade and labor migration in international law is anything but clear-cut and simple. Rather, as this Article shows, it is ad hoc, decentralized, and pluralistic. This Article focuses on the use of Special Economic Zones (SEZs) as an illuminating example. SEZs enable countries to selectively open borders to higher-skilled foreign workers while maximizing economic returns and minimizing socio-political costs. While advantageous to individual countries, this Article argues that the pluralistic status quo hinders comprehensive initiatives to harmonize the liberalization of trade and labor and promote freedom of movement in international labor markets. Full article.

Towards Sovereign Equity

Stanford Journal of Law, Business, and Finance, Vol. 21, No. 2 (2016)

Stephen Park, Tim R. Samples

Sovereigns are unique market participants in the global financial system, and sovereign debt markets largely operate in a legal and regulatory void. This Article adds an important and timely perspective by examining the concept of equity in sovereign debt finance. Governments, unlike corporations, rely almost exclusively on debt to externally finance their investments and operations. GDP-linked securities, which provide interest payments indexed to the sovereign issuer’s rate of growth, are sovereign debt instruments with certain equity-like characteristics. This Article considers whether innovation towards sovereign equity can help mitigate problems associated with sovereign debt crises. To address this question, we analyze the use of GDP-linked securities in recent sovereign debt restructurings by Argentina, Greece, and Ukraine. Drawing on this analysis, we explore more broadly the legal implications of sovereign equity, and conclude that these applications offer opportunities to help manage sovereign finance in the absence of readily enforceable international financial regulation. Full article.

Contracting for Innovation and Innovating Contracts

Journal of Strategic Contracting and Negotiation (2016)

Thomas D. Barton, Gerlinde Berger-Walliser, Helena Haapio

This special issue of the Journal of Strategic Contracting and Negotiation (JSCAN) is devoted to “contracting for innovation and innovating contracts.” From the inception of planning for the issue, the co-editors hoped to attract contributions from a full range of professionals engaged in contract theory and practice: research academics, contract managers, corporate executives, and legal counsel, plus what JSCAN Editor-in-Chief Tyrone Pitsis told us are called “pracademics:” those who straddle research and commercial environments, making concrete contributions through collaborative projects, experiments, interviews, software development, or theory-building. JSCAN is a natural publication outlet for such partnerships, since so many of the 40,000 worldwide members of the International Association of Contract and Commercial Management (JSCAN’s parent organization) are thought-leaders in every aspect of commercial contracting. Full article.

Faculty Research: A Firm-Driven Approach to Global Governance and Sustainability

American Business Law Journal (forthcoming)

Stephen Park and Gerlinde Berger-Walliser.

The multifaceted role of multinational corporations as quasi-regulators is of growing importance to international business. Corporations increasingly participate in two kinds of international rulemaking: (i) non-binding “soft” law standard setting; and (ii) self-regulation through private rules and standards. Soft law and private regulation often fill governance gaps left by incomplete and/or ineffective governmental regulation. One of the most prominent examples is sustainability rulemaking, in which corporations have become increasingly active due to their growing awareness of the directly-borne costs of environmental degradation and the potential strategic benefits of corporate social responsibility.Continue Reading

How to Navigate the Five Pathways of Corporate Legal Strategy

MIT Sloan Management Review (forthcoming)

Robert Bird. Co-author: David Orozco

CEOs, board members and executives are forced to navigate increased regulation, lawsuits, varying international legal regimes, and the greater prospect of liability due to stiffer legal penalties.  Top executives recognize that legal capabilities are a necessary element of long-term corporate success. A Financial Times study found that 24 percent of U.S. companies had lawyer-directors in 2000, and in 2009 that amount notably increased to 43 percent. Corporations generate tangible returns, such as higher stock market valuations, when they employ attorneys who serve as board members, and when top corporate officers have legal knowledge.

Paradoxically, the processes through which corporate legal departments provide competitive advantage remain poorly understood. The law is all too often viewed as a constraint on managerial decisions and is often perceived by executives as a source of costs. This prevailing cost perspective towards the law, while valuable, does not explain how leading companies employ their legal departments to secure long-term competitive advantage for the firm.

Robert Bird and his co-authors explain how viewing the law narrowly as a cost or compliance issue inevitably leads to foregone strategic opportunities, and introduce an actionable framework, the Five Pathways of Corporate Legal Strategy: avoidance, compliance, prevention, value, and transformation. These pathways should enable managers to think about the law strategically and identify value-creating opportunities, thereby creating long-term and sustainable value. Legal rules are not just a checklists to complete, but an opportunity to advance firm goals in a competitive business environment.

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The Impact of Local Knowledge on Banking

Journal of Financial Services Research (forthcoming)

Robert Bird. Co-author: John Knopf

Do geographic factors influence the performance and behavior of modern banks? Advances in technology and global information sharing have seemingly made geographic characteristics irrelevant, but a bank with geographic advantages can have a positive impact on bank performance. A key factor influencing the geographic literature is the concept of local knowledge, i.e., information that influences bank decision making but is not readily transmittable beyond a limited geographic boundary. Banks possessing local knowledge can offer products and services to qualified local borrowers that other less informed banks might overlook, including for example a more diverse portfolio of products and services to start-ups and small businesses.

Using a combination of bank performance data, and differences in state laws allowing employers to require and enforce non-compete agreements, Professor Bird and his co-author find that strong not-to-compete laws restricting employee mobility in a state negatively impact the incidence of new bank charters while benefiting incumbent employers. Restrictions on the mobility of local knowledge decrease labor expenses because workers lack the bargaining power of being able to take a job with a local rival. Results indicate that increases in labor restrictions are positively correlated with profitability for established banks.  Thus, geographically-specific human capital remains an important differentiating factor that influences bank behavior and competition counter to standard theoretical accounts that might imply otherwise.

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Targeted Social Transparency as Global Corporate Strategy

Northwestern Journal of International Law & Business (forthcoming)

Stephen Park.

Multinational enterprises (MNEs) are subject to a variety of U.S. laws that require public disclosure of their global activities, including adverse social and environmental impacts. In this article, Professor Stephen Park examines the recent emergence of mandatory disclosure requirements under U.S. federal securities law that require MNEs to disclose certain social impacts in order to address geographically-defined and/or issue-specific public policy objectives, collectively referred to as “targeted social transparency” (or “TST”). Compared to other social transparency laws, TST regimes target a set of intertwined social risks specific to an individual country, region, or industry.Continue Reading