American Business Law Journal, Vol. 54, No. 1, 2017
Puerto Rico, as a quasi-sovereign U.S. territory, is confronting a debt crisis of unparalleled legal complexity. This article analyzes the collective action problems in sovereign debt finance in the context of Puerto Rico’s quasi-sovereign debt dilemma. We examine how sovereign debtors engage with their private creditors in the absence of a formal bankruptcy regime and show how various legal incentives, imperatives, and constraints shape the degree and form of creditor engagement. Drawing on this conceptual framework, this article analyzes the role of these factors in the market-based debt restructuring by the Puerto Rico Electric Power Authority (PREPA) and hypothesizes how these factors may influence the statutory restructuring process underway under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). Despite the idiosyncratic aspects of Puerto Rico’s debt crisis, the potential pathways for debtor-creditor cooperation in Puerto Rico provide valuable insights on the various ways that law influences debtor-creditor cooperation in sovereign debt finance beyond the enforcement of state-based public regulation and contract-based private legal commitments. Full article.
Berger-Walliser, G., Shrivastava, P., Sulkowski, A. Using Proactive Legal Strategies for Corporate Environmental Sustainability. 6 Michigan Journal of Environmental and Administrative Law, 1-36 (2016). Date Published: June 2017
We argue that proactive law can help organizations be more sustainable. Toward that end, this Article first summarizes proactive law literature as it pertains to corporate sustainability. Next, it examines a series of cases on the pivotal nexus between proactive law and corporate sustainability. It then advances novel propositions that connect proactive law to central organizational design elements. The discussion traces further implications and suggests fruitful avenues for research and ways of using proactive law for firms to become more sustainable. Full article.
American Business Law Journal, Vol. 54, No. 2, Summer 2017, p. 347-392
Although the law remains predominately focused on the written word, a growing body of scholarship and legal practice reflect a dramatic increase in the use of visualization in virtually every legal context. Three starting assumptions underpin our ideas of implementing visualization ideas and techniques into what we call “Legal Design” that may aid contract simplification:
First, we examine the use of images in business documents and in statutes, rather than for advocacy. Moving away from adversarial settings offers several advantages. It permits us to illustrate the use of images in a broader range of practical legal applications. It also enables us to adopt the thinking, values, and methods of a non-traditional approach to lawyering and the law: “Preventive Law” or “Proactive Law” (combined here as “PPL”). Second, we offer guidelines for using images in conjunction with words rather than in isolation, since the law only rarely abandons its verbal expression. Realistically, visualization is almost always used in hybrid ways — combinations of words and images to enhance the effectiveness of communication. That seems unlikely to change, given the need for detail and refinement when the law is imposing duties on people. Finally, our method analyzes variables surrounding choices and consequences about the process of generating, transmitting, and using images to accompany legal language. Examining this dynamic can deepen our understanding of the information conveyed; it can also reveal the potential of visualization for creating spillover value for businesses or regulatory agencies that employ the images to advance legal and organizational effectiveness. Full article.
Berkeley Journal of Employment & Labor Law, Vol. 37, Issue 1 (2016)
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
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
Georgetown Journal of International Law, Vol. 47, No.4 (2016)
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
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
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
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
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.