Vol. 95: Winter

In the Shadow of the Omnipresent Claw: In Response to Professors Cherry & Wong

[Editor’s Note: This piece responds to Reply: Clawback to the Future by Miriam A. Cherry and Jarrod Wong.]

As the American economy continues to totter against an ever-growing populist momentum, it seems likely that clawback mechanisms of various sorts will be put to increasing use in the coming months and years. Very generally, a clawback attempts to regain previously conferred monies or benefits following a certain triggering event, usually involving some change in circumstances. In a sense, clawbacks offer the opportunity for a “do-over”—a convenient antidote to both the uncertainty that characterizes American financial markets and the calls for accountability that grow louder with each corporate misstep, real or perceived. Yet, as Professors Cherry and Wong note in Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes (the “Article”), the term clawback “has been subject to neither rigorous analytical scrutiny nor definition and exposition.” Against this backdrop, the authors’ undertaking to advance a so-called doctrine of clawbacks is both bold in its aspiration and laudable in its result. The Article succeeds in establishing a firm foundation for additional examination and discovery and highlights the importance of clear rules of the road to guide all market participants. This response attempts to bolster and improve upon the still nascent discussion surrounding clawbacks. Full response here.

Reply: Clawback to the Future

In Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes (the “Article”), we undertook the task of proposing a doctrine of clawbacks that would not only furnish a framework for analyzing the term more systematically, but would also describe the ways the doctrine would relate to established rules of contract law. With his response, In the Shadow of the Omnipresent Claw: In Response to Professors Cherry & Wong (the “Response”), Michael Macchiarola has provided us with an opportunity to articulate these thoughts on the doctrine of clawbacks further, and for that opportunity and his careful reading of the Article, we thank him. Full reply here.

 

 

Beyond Exclusion: A Review of Peter J. Spiro’s “Beyond Citizenship”

Few people would have predicted the precipitous decline in power and prestige that the twenty-first century has dealt the United States. Humbled by the surprise attacks on 9/11, humiliated by its poor performance in both the Afghanistan and Iraq wars, and now hobbled by a staggering financial crisis, the United States has suffered through its most devastating decade since the Civil War. A once-admired nation seems to have gone off the tracks, and many people have now decided it is best to keep their distance—politically, physically, and otherwise. Full review here.