Eric L. Talley

Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade

t William K. Townsend Professor of Law. Yale Law School; J.D.. Yale Law School: Ph D. (Economics), Massachusetts Institute of Technology. It J.D., Stanford University Law School; Ph.D. Candidate (Economics). Stanford University WVe are grateful to Jennifer Brown, Peter Cramton, Dick Craswell. Bob Ellickson. Lewis Komhauscr. Dean Leuck. Sandy Meiklejohn, Paul Milgrom, Barry Nalebuff. Mitch Polinsky. Jeffrey Rachlhnski. Eric Rasmusen. Roberta Romano, Carol Rose, Alan Schwartz, Matthew Spitzer. and Scott Stem for helpful comments The fundamental insights of Jason Scott Johnston---especially as contained in his excellent manuscript. Bargaining Under Rules Versus Standards (June 28. 1994)-have inspired much of the analysis in this Article. Support from the John M. Olin Program in Law and Economics is gratefully acknowledged. WVe also benefited from comments at a Harvard conference on property and liability rules

Endowment Effects Within Corporate Agency Relationships

Behavioral economics is an increasingly prominent field within corporate law scholarship. A particularly noteworthy behavioral bias is the “endowment effect”—the observed differential between an individuals willingness to pay to obtain an entitlement and her willingness to accept to part with one. Should endowment effects pervade corporate contexts, they would significantly complicate much common wisdom within business law, such as the presumed optimality of ex ante agreements. Existing research, however, does not adequately address the extent to which people manifest endowment effects within agency relationships. This article presents an experimental test for endowment effects for subjects situated in an agency relationship that typifies many firms. We find that subjects do not exhibit significant endowment effects. An additional experimental test suggests that this finding may be largely due to framing: subjects situated as “agents” may view entitlements principally in terms of exchange value, thereby dampening endowment.

Corporate Governance, Executive Compensation and Securities Litigation

It is generally accepted that good corporate governance, executive compensation and the threat of litigation are all important mechanisms for incentivizing managers of public corporations. While there are significant and robust literatures analyzing each of these policy instruments in isolation, their mutual relationship and interaction has received somewhat less attention. Such neglect is mildly surprising in light of a strong intuition that the three devices are structurally related to one another (either as complements or substitutes). In this paper, we construct an agency cost model of the firm in which corporate governance protections, executive compensation levels, and litigation incentives are all endogenously determined. We then test the predictions of the model using a firm-level data set including governance, executive compensation, and securities litigation variables. Consistent with our predictions, we find governance and compensation to be structural substitutes with one another, so that more protective governance structures tend to coincide with lower-powered incentives in executive contracts. Also consistent with our predictions, we find executive compensation and shareholder litigation appear to be structural complements to one another, so that higher powered incentives tend to catalyze more frequent litigation. In fact, we estimate that each 1% increase in the incentive component of a CEOs contract predicts 0.3% increase in the likelihood of a securities class action and a

Market Design with Endogenous Preferences

3.4 million dollar increase in expected settlement costs. In addition, the complementarity of executive compensation and litigation allows us to formulate new ways to test for the effects of legal reform, such as the Private Securities Litigation Reform Act of 1995. The results of our preliminary tests appear inconsistent with the claims of the statutes proponents that the PSLRA systematically discouraged non-meritorious litigation without burdening meritorious claims, particularly for firms with relatively low volatility.

The Measure of a MAC: A Machine-Learning Protocol for Analyzing Force Majeure Clauses in M&A Agreements

This paper explores the interdependence between market structure and an important class of extra-rational cognitive biases. Starting with a familiar bilateral monopoly framework, we characterize the endogenous emergence of preference distortions during bargaining which cause negotiators to perceive their private valuations differently than they would outside the adversarial negotiation context. Using this model, we then demonstrate how a number of external interventions in the structure and/or organization of market interactions (occurring before trade, after trade, or during negotiations themselves) can profoundly alter the nature of these dispositions. Our results demonstrate that many such interventions frequently (though not always) share qualitatively similar characteristics to market interventions that are often proposed for overcoming more conventional forms of market failure. Nevertheless, our analysis underscores the importance of understanding the precise link between cognitive failures and market structure prior to the implementation any particular proposed reform.

A Note on Presumptions with Sequential Litigation

This paper develops a protocol for using a familiar data set on force majeure provisions in corporate acquisitions agreements to tokenize and calibrate a machine-learning algorithm of textual analysis. Our protocol, built on regular expression (RE) and latent semantic analysis (LSA) approaches, serves to replicate, correct, and extend the hand-coded data. Our preliminary results indicate that both approaches perform well, though a hybridized approach improves predictive power further. Monte Carlo simulations suggest that our results are generally robust to out-of-sample predictions. We conclude that similar approaches could be used more broadly in empirical legal scholarship, especially including in business law.

Law, Economics, and the Burden(s) of Proof

This note extends the Bernardo, Talley & Welch (1999) model of legal presumptions to study situations where litigation efforts are spent sequentially rather than simultaneously. The equilibria of the litigation stage are presented as functions of the underlying presumption. The equilibria and comparative statics are shown to be qualitatively similar to those of the simultaneous version. However, sequentiality allows the principal to pre commit to a litigation strategy, and thus possibly preempt any litigation effort whatsoever by the agent.

Designing Corporate Bailouts

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic to game theoretic to mechanism design); and (c) whether they focus on litigation activity or primary activities (or both). In the aggregate, the resulting theoretical landscape is a complex one, yielding a number of interesting insights. Yet it still suffers from having no single unified theory. I conclude by offering a number of recommendations about where applied law and economics scholars interested this topic could direct their research efforts.

On Experimentation and Real Options in Financial Regulation

Although common economic wisdom suggests that government bailouts are inefficient because they reduce incentives to avoid failure and induce excessive entry by marginal firms, in practice bailouts are difficult to avoid for systemically significant enterprises. Recent experience suggests that bailouts also induce litigation from shareholders and managers complaining about expropriation and wrongful termination by the government. Our model shows how governments can design tax-financed corporate bailouts to reduce these distortions and points to the causes of inefficiencies in real-world implementations such as the Troubled Asset Relief Program. Bailouts with minimal distortion depend critically on the governments ability to expropriate shareholders and terminate managers.

Short-Termism and Long-Termism

Financial regulators have recently faced enhanced judicial scrutiny of their cost-benefit analysis (CBA) in advance of significant reforms. One facet of this scrutiny is judicial skepticism toward experimentation (and the real option to abandon) in the CBA calculus. That is, agencies have arguably been discouraged from counting as a benefit the value of information obtained through adopting new regulations on a provisional basis, with an option to revert to the status quo in the future. We study field experimentation versus more conventional forms of CBA (or analytic learning) in a regulatory-judicial hierarchical model. We demonstrate that there is no principled basis for dismissing (or demoting) experimentalism and that such rationales deserve a place in agencies’ standard CBA arsenals. Nevertheless, our analysis also reveals an institutional reason for the tension between the judiciary and regulators, suggesting that regulators are plausibly too eager to embrace field experimentation while judges are simultaneously too recalcitrant.