Journal of Empirical Legal Studies最新文献

The backlash to ESG investing is in full swing, with dozens of states enacting measures aimed at curtailing the consideration of environmental, social, and governance factors in their pension funds. Meanwhile, ESG mutual funds are experiencing net outflows after a period of lagging performance. Is this the end for ESG funds? This paper draws on the literature on mutual fund flows to study how the demand for ESG funds has changed over time and how that demand interacts with the political and legal backlash to ESG. It finds that ESG funds received significant positive flows, controlling for conventional predictors of fund flow, starting in 2017. This effect peaked in late 2019, much earlier than the publicly perceived decline of ESG. Abnormal investor preference for ESG funds disappeared in 2020, around the time of the Trump Department of Labor rule targeting ESG and then reappeared in 2021 before declining again. The excess demand for ESG was driven largely by institutional share classes, particularly pre-2021. While the positive effect of ESG branding on flows has disappeared, demand for ESG funds (controlling for past performance) has generally remained non-negative up to 2024. Most of the decline in excess demand for ESG funds predates the political backlash and state anti-ESG laws. Tests for a causal relationship between ESG fund flows and the political backlash, as measured by mentions of ESG in conservative media and state laws restricting ESG, show no statistical connection.

Using the complete record of all federal civil docket sheets for cases filed in a two-year period, recently made available by the SCALES-OKN project, we find that most cases that enter the federal system—about 60%–68%—are resolved without any dispositive motion filed for consideration by a neutral arbiter (judge or magistrate) or a trial. Only 30%–40% include a filing of a dispositive motion (such as a motion to dismiss or motion for summary judgment) or, in the rare case, trial. An additional 8% exit the system, mostly by remand or transfer. The majority of cases resolved at the Complaint or Answer stage end quickly (often within 90 days) and with few docket entries (often fewer than 12). While there is heterogeneity in adjudication rates across case types, the pattern of non-adjudication is widespread, and aggregate results are not driven by outliers. We find considerable heterogeneity in the level of non-adjudication among individual judges, underscoring the importance of judicial discretion to case processing. Further study of the consequences of the lack of dispositive motion practice in most federal cases for the functioning of the legal system and for the larger society is warranted.

Proxy advisor recommendations play a central role in research on shareholder voting and corporate governance, yet they have become largely unavailable to academics. I develop a method to impute benchmark recommendations from Institutional Shareholder Services (ISS) and Glass Lewis using publicly available institutional voting data and estimated investor “follow rates”—the investor's likelihood of voting in line with each advisor. The method applies Bayes' theorem to infer recommendations from observed votes and iteratively updates both follow rates and imputations over successive rounds. To improve performance on contested proposals and avoid systematic bias, I estimate follow rates that vary by context—such as whether management and the other advisor agree with the recommendation. Validation against actual recommendations shows high accuracy: 96.4% of ISS recommendations imputed with 99.6% accuracy and 90.8% of Glass Lewis recommendations with 99.0% accuracy. Coverage improves substantially over prior approaches, especially for hard-to-classify proposals. I provide the full dataset of imputed recommendations as an Online Appendix for academic use.

Guidance documents are a main pillar of the modern administrative state. While federal agencies issue thousands of rules every year through notice-and-comment rulemaking, they issue even more guidance documents in various forms. There is, however, an ongoing and fierce dispute over agencies' ability to create binding obligations through guidance without the notice-and-comment rulemaking procedures stipulated by the Administrative Procedure Act. The binding norm doctrine purports to prevent agencies from creating binding obligations through guidance, and often focuses on documents' choice of wording. But to what extent do guidance documents use binding language, and how do courts understand them? Despite the widespread interest in these questions, however, there has been a surprising lack of empirical studies tackling them. This article begins to bridge this gap and presents an analysis based on a novel dataset compiled from an online database of agency guidance, which encompasses nearly 70,000 documents issued by three key federal agencies from 1970 to 2022. Using computational text analysis, it investigates the language of guidance documents to assess their potential bindingness. It identifies specific linguistic cues that courts have used to interpret documents as binding or non-binding and applies these criteria across the dataset. The findings indicate a significant rise in the quantity and the assertiveness of language in guidance documents over the decades and show their near parity with legislative rules in terms of their binding effect, suggesting that guidance has indeed become a main bulwark of administrative policymaking. Moreover, the analysis explores judicial reviews of guidance documents, finding no substantial differences between documents that were set aside as too binding and others that were upheld, suggesting that the application of the binding norm doctrine fails to create a systematic and consistent framework for administrative agencies and regulated entities. In response to these findings, the article proposes a shift from the current focus on the close textual reading of documents to a procedural label test, which assesses only whether a rule has undergone the required procedural steps. This approach aims to simplify the legal assessment of guidance documents and provide a more stable foundation for administrative action.

Government venture capital funds (GVCs) are a global phenomenon. GVCs are central players in China's VC market, now the second largest globally. While existing literature often depicts China's GVCs as a successful public effort to promote entrepreneurship, this paper presents an alternative view. It explores the effect of city-level GVC programs on entrepreneurship, as proxied by the formation of new businesses. Using a hand-collected 20-year dataset covering GVC program adoption, early-stage investments, and new firm formation in 280 prefectural cities and employing difference-in-differences and weighted stacked event study methods, I find that Chinese GVCs are associated with a decrease in overall new firm formation. Interview-based evidence and a triple-differences analysis by industrial sector suggest that this result is driven by stringent investment restrictions imposed by GVC programs, which absorb private sector capital into GVC funds targeting specific industries, thereby discouraging new firm formation in non-policy-supported sectors. These findings offer a cautionary note to global policymakers regarding the complexities of public finance strategies aimed at boosting entrepreneurship.

The market value of distinctive trademarks is a fundamental assumption of both trademark law and marketing theory. However, there is little empirical evidence underlying this assumption. We examine the relationship between brand dissimilarity and market prices in the context of the Bordeaux wine market. Using a unique dataset covering thousands of wines and their associated prices and professional ratings, we find that brand distinctiveness is related to higher wine prices. We further show that this relationship persists across the wine quality spectrum, with both lower quality and higher quality wines benefiting from dissimilar marks. Finally, we show that while there is a dissimilarity price premium for lower quality wines, producers who invest in higher quality wines are rewarded with an even greater premium for dissimilar names in absolute dollar terms.

Legal scholars have long debated whether law, through its expressive power, can influence prevailing social norms. Empirical studies inspired by this debate have focused on establishing the existence of an expressive power. However, this dichotomous perspective overlooks the nuances of the theoretical discourse regarding the conditions under which law, independent of any enforcement, can wield greater or lesser impact on social norms. This article employs a regression discontinuity design to examine the expressive power of the law in shaping social norms and measure its sensitivity to contextual factors. Using a preregistered incentivized experimental survey (N = 2913), we demonstrate that: (1) law, qua law, can indeed influence perceived social norms; and (2) this influence of the law is moderated by the normative clarity of the scenario. The law has the greatest impact on perceived norms in ambiguous situations; when additional normatively relevant information is provided, the expressive power of the law diminishes.