Truth on the Market

Academic commentary on law, business, economics and more

Archive for February, 2007

Please No "Passenger’s Bill of Rights"

Posted by Thom Lambert on February 19, 2007

Soledad O’Brien said a (sort of) bad word on American Morning this morning. I was watching when she said it. I didn’t notice the word, but it’s plain as day in the transcript below (omissions noted by ellipses): Read the rest of this entry »

Posted in economics, law and economics, markets, regulation | 12 Comments »

Sirius/XM: You Heard It Here First!

Posted by Keith Sharfman on February 19, 2007

Today’s report that Sirius and XM plan to merge vindicates the antitrust analysis offered here last June.

Regulators should analyze the merger from a broad “audio market” perspective that includes terrestrial radio. Considering the extensive non-satellite content available to listeners, and considering as well the efficiencies associated with the Sirius/XM combination, it is reasonable to conclude that consumers will benefit from the deal and that regulators should therefore allow it (after careful review, to be sure).

The question I’m left with is: how long will it take for GM/Ford to follow?

Posted in Uncategorized | 6 Comments »

Venture Debt

Posted by Darian Ibrahim on February 19, 2007

Thanks to everyone at TOTM for having me.  I’m a big fan of this blog, and look forward to visiting here for a short time.

I was intrigued by a recent article in the Wall Street Journal on venture debt, or the practice of lending to start-ups as opposed to the standard practice of investing for equity.  According to the article, debt made up 7% (or nearly $2 billion) of the money invested in venture-backed companies last year, up from 2% the year before.  The article also shows that venture debt was nearly $4 billion at the height of the venture capital market in 2000.

Venture debt is interesting — and puzzling.  Investments in start-ups are risky, plagued by extreme levels of uncertainty, information asymmetries, and agency costs.  A VC fund invests in a number of start-ups in the hopes that its portfolio will contain the next Google or eBay, to offset the inevitable duds.  VC-fund investors expect a better-than-market rate of return, and most profits come from the IPOs of a small number of highly successful start-ups (like Google and eBay).  The VC model works because of the potential for a huge upside.  Can venture debt work, when by definition it does not offer this huge upside?

Perhaps.  While the start-up is solvent, venture debt commands a high interest rate (double digits, according to the WSJ article).  The article also mentions that lenders get warrants, convertible into equity, which allows them to share (to some extent) in a huge upside.  Also, if the start-up liquidates, debt has first priority over the preferred stock of VCs.  Therefore, venture debt makes sense by offering some upside, although of a different makeup, and by limiting the downside.  But venture debt also presents problems.  First, the typical high-tech start-up must spend available cash on R&D and other growth activities, not interest payments.  Venture debt is unlikely to be the “patient capital” that start-ups need for long-term success.  Second, and perhaps more importantly, venture debt is likely to complicate a start-up’s chances with VCs.  VCs fund relatively few companies.  If a start-up comes with venture debt, I can’t imagine it’s very attractive to the VCs, whose money would go to pay off the debt during solvency, and who would now be second in liquidation preference during insolvency.  Unless the amount of venture debt is sufficient to eliminate the need for venture capital – and by current levels it is nowhere close – do start-ups carrying venture debt really have a chance for long-term success?  Venture debt may make sense for some companies, but in general it seems like a bad idea.

Posted in private equity | 2 Comments »

Darian Ibrahim Joins Us as Guest Blogger

Posted by Bill Sjostrom on February 19, 2007

Darian Ibrahim will be guest blogging here for the next couple of weeks. Darian is an Associate Professor of Law at the University of Arizona Rogers College of Law where he teaches Business Organizations, Law & Entrepreneurship, Securities Regulation, and Contracts. He presented his latest paper, Fiduciary Duties, Individual or Collective Liability for Directors, and the Functioning of Corporate Boards, at the AALS Disney Panel. Welcome Darian!

Posted in announcements | Comments Off

Learning Economics Online

Posted by Josh Wright on February 16, 2007

Inspired by Thom’s wonderful post on market “wonder moments,” which was itself inspired by the availability of free class notes and syllabi from the likes of Yale, Notre Dame and MIT on the web, I thought I would share a few of my favorite free, or at least not very expensive (and maybe not so well known) online economic treasures:

1. The UCLA Working Paper series.  I have learned a lot of economics here over the past 8 years.  The papers go back to 1971 or so include some seminal pieces in micro theory, game theory, labor, IO, macro, and economic history.  While I’m mostly interested in the I.O. stuff, there is really something for just about everybody including some early working paper versions of classics, some unpublished gems, and lots of law and economics-relevant material.  Definitely worth checking — as would be the online archives at many of the top economics departments.  If anybody has links to these, please post them in the comments!

2. The RAND archives.  How are these for some free economic gems?  First, the sticking with the UCLA theme, here is a series of Armen Alchian’s economic analyses of various topics while working for RAND in the 1950s.  See, e.g., this one co-authored with Ken Arrow and William Capron entitled, “An Economic Analysis of the Market for Scientists and Engineers.”  And a vault of economic reports from Jack Hirschleifer ranging from “some fundamentals of exchange theory” to “a steady state model of conflict.”  How about Harold Demsetz’s 1962 analysis of “The Economic Gains from Storm Warnings: Two Florida Case Studies?”  One can wander about the RAND archives for hours and hours and find things like this work on duopoly and n-person games from John Nash, these from Herbert Simon, “The le Chatelier principle in linear programming” from Paul Samuelson, or how about “The Problem of Local Monopoly” (a study of local cable television regulation) by one R.A. Posner?  Ok, some of these are not free.  Maybe these particular economists or subjects are not your cup of tea — though I cannot imagine why not — But if you browse around the archives for long enough, I promise you find something fascinating!

3. For the more technical types, and maybe not of much interest to most of our readers, is a directory of the “math camp” lecture notes from the Yale econ phd program,  a huge directory of economics notes courtesy of econphd.net, some notes from Guido Imbens on maximum likelihood and GMM estimation (or another set here),  and a plethora of great industrial organization notes (and lots of other useful stuff!) from Eric Rasmusen (theory and empirics).

I have to keep a few secret sources to myself, but for students of economics I think there is a lot of great stuff here just waiting to absorbed.

Posted in economics, scholarship | 1 Comment »

AALS Disney Panel Podcast

Posted by Bill Sjostrom on February 16, 2007

Podcasts from this year’s AALS conference are now available. Click here for the Business Associations panel on the Disney case. Recall that Justice Jacobs from the Delaware Supreme Court (author of the Delaware Supreme Court opinion in the case) participated in addition to many heavy-hitting corporate law academics (see below).

Here’s the blurb from the program brochure on the panel:

Dimensions of Disney: The Evolution of Corporate Law and Corporate Governance

Moderator: Deborah A. De Mott, Duke University School of Law
Speakers: Robert Charles Clark, Harvard Law School
Franklin Gevurtz, University of the Pacific McGeorge School of Law
Jeffrey N. Gordon, Columbia University School of Law
Darian M. Ibrahim, The University of Arizona James E. Rogers College of Law
Jack B. Jacobs, Judge, Delaware Supreme Court, Wilmington, Delaware
Renee M. Jones, Boston College Law School
Hillary A. Sale, University of Iowa College of Law
Eric L. Talley, University of California, Berkeley School of Law
Robert B. Thompson, Vanderbilt University Law School

One or more presenters were selected from a call for papers.

In re The Walt Disney Company Derivative Litigation is a long-running and closely-watched case that raises many significant questions concerning the role of law in connection with the governance of large public corporations. These include executive compensation practices, the significance of reputational constraints on the conduct of directors and officers, and relationships between senior management and boards of directors. Disney also provides a concrete context for examining comparative institutional questions, such as the relative roles of markets, courts, shareholder voting, private litigation, securities litigation, and stock exchanges in shaping governance practices. The doctrinal issues posed by Disney, the character and content of directors’ and officers’ duties, lie at the heart of both corporate law and the coverage of business-associations courses.

This year’s Section meeting will feature panels of speakers who will present papers focused on questions raised both directly and indirectly by the case. A separate panel will focus on the challenges and rewards of “Teaching the Big Case,” i.e., Disney, which over its history has generated a lengthy trial and two opinions each from the Delaware Supreme Court and the Court of Chancery.

Posted in corporate governance, corporate law | Comments Off

"Yale on $0 a Day" Sparks a Wonder Moment

Posted by Thom Lambert on February 15, 2007

We’re so immersed in the benefits of a market economy that I fear we sometimes fail to notice what a marvel capitalism is.

Today’s Wall Street Journal points to yet another of capitalism’s benefits. A growing number of very, very fancy colleges with very, very talented professors and very, very expensive tuition are offering their course materials online for free.

MIT, for example, “posts the syllabus and class notes for more than 1,500 courses online for anyone who wants them.” By next November, it will “publish materials from virtually all 1,800 of its courses across all its schools.” Notre Dame posts materials for eight courses, “including everything from class plans, links to required readings, lecture notes and homework assignments.” It aims to offer 30 free online courses over the next two years. Yale “has announced it will produce digital videos of undergraduate lecture classes and make them available free to the public.” Seven such courses are currently being taped and will be posted next fall. Bryn Mawr has similar plans in the works.

Just think, a vast amount of knowledge — knowledge that has been organized into a useful format and given the stamp of approval of a fancy school — is becoming available for free to anybody who’ll take it. If you stop and ponder it a second, it’s sort of startling.

But then we see this sort of thing all the time. We can flip on our TVs and watch, for free, some very high-quality programming that has been specifically designed to appeal to our senses of humor and natural curiousities. Of course, we have to sit through some commercial advertisements, but even those are designed to entertain us — and they inform us as well.

Why do the creators of this information and entertainment offer it as a freebie? Perhaps a few of them (Steve Bainbridge?) are motivated by a desire to propagate learning and art. Most, though, are trying to sell something. With TV, that motivation’s obvious. It’s also behind the colleges’ online learning initiatives. The WSJ explains:

[S]chools aren’t interested only in the public good: Schools say that offering materials online can draw in potential applicants curious about what an actual course looks like. An MIT survey of users showed that about a third of freshmen who were aware of the site before attending said it made a significant impact on their decision to enroll.

Thus, Adam Smith’s old adage rings true once again: “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” That’s the wonder of the capitalist system — it can take people’s natural selfishness and turn it into social surplus: from entertainment programming that unites a nation (think how American Idol and The Office have boosted our sense of national community) to free high-quality education for folks who, for whatever reason, could never go to a fancy college.

Perhaps it’s silly to find profundity in this WSJ article. I admittedly slept poorly last night and am a bit over-caffeinated. I’m comforted, though, by the fact that some very smart people who thought long and hard about the capitalist system had similar wonder moments.

Hayek, for example, took time to “marvel” at the elegance of the price mechanism:

I have deliberately used the word “marvel” to shock the reader out of the complacency with which we often take the working of this [price] mechanism for granted. I am convinced that if it were the result of deliberate human design, and if the people guided by the price changes understood that their decisions have significance far beyond their immediate aim, this mechanism would have been acclaimed as one of the greatest triumphs of the human mind.

Similarly, Frederic Bastiat had what I would classify as a capitalist wonder moment when he sat back and observed how peacefully Parisians slept, confident that free exchange would provide their needs. In Chapter 18 of Economic Sophisms he wrote:

On coming to Paris for a visit, I said to myself: Here are a million human beings who would all die in a few days if supplies of all sorts did not flow into this great metropolis. It staggers the imagination to try to comprehend the vast multiplicity of objects that must pass through its gates tomorrow, if its inhabitants are to be preserved from the horrors of famine, insurrection, and pillage. And yet all are sleeping peacefully at this moment, without being disturbed for a single instant by the idea of so frightful a prospect. On the other hand, eighty departments have worked today, without co-operative planning or mutual arrangements, to keep Paris supplied. How does each succeeding day manage to bring to this gigantic market just what is necessary—neither too much nor too little? What, then, is the resourceful and secret power that governs the amazing regularity of such complicated movements, a regularity in which everyone has such implicit faith, although his prosperity and his very life depend upon it? That power is an absolute principle, the principle of free exchange.

Sometimes it’s good to be astounded.

***

UPDATE: I just checked Bainbridge’s site and I see (here) that even he is trying to sell something. I suppose I should have heeded the second half of the Adam Smith statement quoted above: “…We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”

Posted in economics, markets, musings, universities | 7 Comments »

Shareholder Voting on Executive Comp. – What’s the downside?

Posted by Elizabeth Nowicki on February 14, 2007

There was an article this morning on CCN announcing Aflac’s decision to let shareholders vote on executive compensation.  A board resolution was passed to give ”shareholders the right to a non-binding vote on executive pay packages that will take effect in 2009.”

I veiw this step by Aflac’s executives as very savvy.  Why bother leaving oneself exposed to shareholder outrage?  Exhibit A: Home Depot – even if they were totally justified in paying their outgoing CEO $210 M when he left – and I highly doubt they were - why would any board risk so offending their investors?Â

Regarding Aflac, I suppose Henry Manne would say “why allow the vote if the minority cannot control the vote?  The vote is a wasted effort – a useless display of ‘stockholder democracy.’”  My impression is that shareholders, at least on the margins, like to be heard – it cultivates their willingness to take the $10,000 they are holding for a new car in nine years or so and put it in the market.Â

Did Aflac’s board need to give their shareholders this voice?  No.  Can I see a downside?  No.  I suppose Larry Ribstein might argue that allowing this input skews the “agency cost” aspect of executive compensation by allowing an irrelevant third party (the stockholders) some input into the calculus of executive compensation.  Perhaps my L&E brethren will argue that allowing this input will drive down executive compensation and dry up the market for qualified senior executives.  I am not sure what Steve Bainbridge would say about this from his “director primacy” standpoint.  My view is that it will encourage boards to think harder about how they are going to justify to their shareholders any given pay package, and it will force executives to be prepared to justify whatever pay package they suggest to their directors that they should receive.  Neither of those things are bad things.

Posted in Uncategorized | 10 Comments »

Kerr on Exam Answers

Posted by Josh Wright on February 13, 2007

Orin Kerr gives an hypothetical law school question and works his way through what makes law school exam answers good, bad, or terrific.  As a general matter, I find myself in agreement with the distinctions between answers that Orin makes, including the following:

To get a top grade, a student needs to identify the relevant legal question accurately, and then articulate exactly why applying the law to the facts leads to a particular outcome.

This advice sounds a little generic, as Orin notes, but I think it is pretty valuable.  Especially in first year exams, there is a good deal of variance in student ability to nail the second half of that formula (the analysis part).  I find that students from quantiative backgrounds sometimes have trouble with this since in those fields, the quality of being able to get to the answer in fewer steps or more concisely is appreciated and sometimes even viewed as elegant (think mathematics … ).  Though most of the problem, I think, is just a function of going through the process of figuring out what law school exams are about and what exactly the student is being asked to do.  I have spent a substantial amount of time attempting to articulate these distinctions to my Contracts 1Ls both in class and in exam review meetings — I hope with some success.  In any event, I really like Orin’s example and think it is a very useful illustration of the characteristics of good, bad and mediocre answers.

P.S. On law school exams and grading, CoOp has a whole series of interesting posts up right now.

Posted in law school, musings | 1 Comment »

New Paper on Majority Voting for the Election of Directors

Posted by Bill Sjostrom on February 13, 2007

A draft of my new paper entitled Majority Voting for the Election of Directors is now up on SSRN. I co-authored the piece with Young Kim, a finance professor at Northern Kentucky, so it has an empirical component. Here’s the abstract:

We explore the theory, law, and practice of the shift from a plurality voting standard for the election of directors to a majority voting standard. Although not mandated by law, as of October 2006, more than 250 public companies, including at least 36% of S&P 500 companies and 31% of Fortune 500 companies, had implemented some form of majority voting. The theory behind majority voting is simple: it makes shareholder voting relevant to the outcome of uncontested elections. Specifically, under a majority voting standard, if shareholders holding a majority of shares are dissatisfied with a director, they can express this dissatisfaction by voting against him, he will not receive the requisite majority vote, and therefore will not be elected. Shareholders will, in effect, have veto power over management’s candidates. This, in turn, it is argued, “will enhance director accountability, strengthen the director nomination process, and improve company operations.” We find, however, that the theory does not match the practice. We examined more than 250 majority voting systems implemented by public companies and failed to find a single company with a majority voting system that actually gives shareholders veto power over director candidates. At the end of the day, under each of the majority voting systems we examined, all directors are ultimately selected by the existing board of directors, regardless of how shareholders vote, as is the case under a traditional plurality voting system. Hence, we view majority voting as implemented in practice as little more than smoke and mirrors. In light of this conclusion, we undertook an event study to gauge market reaction to majority voting. Specifically, we examined stock price movements of firms around announcements that they have or will adopt some form of majority voting. Consistent with our “smoke and mirrors” hypothesis, we found no statistically significant market reaction.

You can download the paper here. If you do read it and have comments, please email them to me at sjostromw [at] nku [dot] edu.

Posted in corporate governance, corporate law, legal scholarship, scholarship | Comments Off

 
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