postings by Mitu Gulati

Variation in Boilerplate: What Does it Mean?

posted by Mitu Gulati

Most of us who have had to read hundreds of commercial contracts for either our jobs as lawyers or for our research have also necessarily read lots of “choice-of-law” provisions. I know I have. But I am also embarrassed to say that I never paid much attention to many of the minor variations in language that frequently show up. For example, whether the clause says that the bond is “governed by New York law” or that its terms are to be “construed in accordance with New York law” is a variation that I’ve seen, but have never given much thought to. But as UNC Law School’s John Coyle points out in a wonderful new article, these small variations in the boilerplate language risk being interpreted as being quite different by a court. And particularly so by a New York court that pays a lot of attention to the text. Before going further, I should note here that John’s article showing that contract language that is assumed to be boilerplate is often not really all that boilerplate follows in the tradition of another super article out of UNC, this one by slipster Mark Weidemaier, appropriately titled “Disputing Boilerplate”.

The basic empirical inquiry that John engages in his article (“Choice-of-Law Clauses in U.S. Bond Indentures”, forthcoming in the peer reviewed Capital Markets Law Journal) has two parts. First, along the lines of Mark’s “Disputing Boilerplate” article, he uses a substantial sample of bonds (over 300) to document the extent of the variation. And second, he interviews senior lawyers to ask whether they think the small variations are supposed to signify different preferences (they are notindeed, in most cases, the lawyers don’t seem to have even been aware that the variation was meaningful). The second finding is particularly surprising and interesting, given that John is able to point to multiple actual court cases where these differences in language have turned out to be meaningful.

Continue reading "Variation in Boilerplate: What Does it Mean?" »

The Gender Gap Among Fancy Economists at the NBER Summer Institutes

posted by Mitu Gulati

The NBER summer institutes are where the fanciest economists go.  Anusha Chari and Paul Goldsmith-Pinkham have a cool new paper looking at the gender gaps in who gets on the schedule for the NBER summer institutes. 

Here is their basic finding:

Over the period of study (2001-2016), women made up 20.6 percent of all authors on scheduled papers. However, there was large dispersion across programs, with the share of female authors ranging from 7.3 percent to 47.7 percent. While the average share of women rose slightly from 18.5% since 2001-2004, a persistent gap between finance, macroeconomics and microeconomics subfields remains, with women consisting of 14.4 percent of authors in finance,16.3 percent of authors in macroeconomics, and 25.9 percent of authors in microeconomics.

The under-representation in in finance and macro is striking to me.  And got me wondering about what the data might look like if one were to look at the programs for, for example, ALEA or CELS.

The complicated questions, of course, have to do with matters such as causality--whether the results are being driven by choice or discrimination or some complicated interactive dynamic.  That authors do a super job of explicating the complexities, if anyone is interested in delving deeper.

Is the Trump Administration Causing a Reduction in Corruption in Public Companies?

posted by Mitu Gulati

In theory it is possible, I guess.  The Trump Administration comes in, promising to clean or drain or pump the swamp in Washington, and CEOs of public companies become scared and decide to reform themselves.  If so, one would expect to see fewer corruption prosecutions because, of course, there is less corruption to prosecute.

My dear friend and co author, Steve Choi, constructed a graph of the actions filed against US public companies and subsidiaries in the first fiscal year since the Trump Administration took office (that is, month by month data of filings, until September 30, 2017).  If you are interested, the graph is here (along with details about our data collection process, caveats blah blah).

Bottom line:  At first cut, the SEC, at least under the FCPA, seems to be bringing a lot fewer actions under the Trump Administration than they were bringing under the Obama Administration.

Is it because there is a lot less corruption now?  Because CEOs are running scared? Hmmmm . . .

Continue reading "Is the Trump Administration Causing a Reduction in Corruption in Public Companies?" »

Deus Ex Trumpina

posted by Mitu Gulati

Sometimes, a graph on Bloomberg says it all.

Wow, just wow.  There is no easy or ready mechanism to do this (of course).  But the statement just took a giant chunk out of a large set of portfolios.

HT: Darrell Miller 

Could Giving the Rohingya Refugees a Debt Claim Ameliorate the Current Crisis?

posted by Mitu Gulati

From Joseph Blocher & Mitu Gulati

Just a couple of weeks ago, the plight of the Rohingya, a muslim minority group in Myanmar, who are being oppressed (to put it mildly–they have been called “the most friendless people in the world”) was front page news. But, as has often been the case with the plight of the Rohingya over the years, news of their plight quickly receded as other human drama and tragedy took over (hurricane in Puerto Rico, Las Vegas shooting, Catalan secession vote/violence, North Korean craziness etc.)

We realize that we are likely engaged in a pointless task.  But we want to plead for the condition of the Rohingya, and indeed other refugees, not to be forgotten so quickly. As a threshold matter, we recognize that our government cannot be depended on to care much (if at all) about the plight of oppressed groups that are as far away, foreign and poor as the Rohingya. In other words, the top down mechanism isn’t going to work. The question then is whether, assuming that the oppression in question is clear and cognizable, there is some other solution—something bottom up--that the international legal system could provide to oppressed groups who are forced into refugee status that does not depend on other governments, such as the U.S., having a self interest in intervening.

Continue reading "Could Giving the Rohingya Refugees a Debt Claim Ameliorate the Current Crisis? " »

Could Puerto Rico be Expelled for its "Tremendous" Debt?

posted by Mitu Gulati

From Joseph Blocher & Mitu Gulati

We would not exactly call ourselves avid readers of the US Navy blogs. But there is an interesting post on the U.S. Naval Institute Blog today on Puerto Rico and debt by Commander George Capen (retired).

The context that inspired his blog post was the behavior of our president toward the current crisis in Puerto Rico. To quote: 

“Ultimately, the government of Puerto Rico will have to work with us to determine how this massive rebuilding effort—will end up being one of the biggest ever—will be funded and organized, and what we will do with the tremendous amount of existing debt already on the island.” – President Donald J. Trump, 29 September 2017:

Commander Capen, whose post is worth reading in its entirety, writes:

Puerto Rico didn’t ask to become a U.S. territory in 1898; nor do they get to vote in U.S. elections; nor do they have voting representation in Congress. But they are Americans. And they also voted to become a state (over 97 percent) earlier this year.

As an unincorporated commonwealth, our Congress holds the fate of Puerto Rico in their hands. Following their vote for statehood, our Congress can make Puerto Rico a state. Congress could also vote to cast Puerto Rico aside as an independent nation.

That final statement raises a question that we have been fascinated by (and have struggled with). Could Congress really “cast Puerto Rico aside as an independent nation,” even stripping Puerto Ricans of their US citizenship, because they have a “tremendous debt”?

Continue reading "Could Puerto Rico be Expelled for its "Tremendous" Debt?" »

Thanks for the Warm Welcome

posted by Mitu Gulati

My thanks to the Slipsters, and particularly to Bob, Mark and Anna, for making me feel so welcome to your space already. I've long been a fan of the generous and supportive environment you have created and nurtured over the years. Serious and yet fun. I'm thrilled to be joining in and hope to live up to what you have already created.

Thanks also for the multiple emails sharing insights on the results of the SEC Gender Gap study already; especially from those of you who have worked in similar settings.

Elite Government Jobs, the Revolving Door, and the Gender Gap

posted by Mitu Gulati

We all know about the so-called revolving door where a few years of selfless government service translates into a high paying job in the private sector. The question my co authors, Steve Choi and Adam Pritchard, and I set out to ask was whether these goodies resulting from government service got allocated to men and women on a differential basis. 

A couple of days ago, we posted our preliminary results on this question in a paper titled "Should I Stay or Should I Go?".  We think they are intriguing, but would be delighted to get some feedback. 

Continue reading "Elite Government Jobs, the Revolving Door, and the Gender Gap " »


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