Digital Commons Network^™

Oversight Liability For Risk Management Failures At Financial Firms, Robert T. Miller

Robert T Miller

Many people believe that excessive risk-taking at large financial firms was an important cause of the financial crisis in 2007-2008 and thus that preventing another crisis requires improving risk-management systems at such institutions. One way to do this would be to use board oversight liability to hold directors personally liable for failing properly to monitor the risks that their firms are running. The purpose of this Article is to determine what role director oversight liability can efficiently play in improving risk-management practices at large financial firms.

A key contention of the Article is that previous treatments of this problem have …

Waiting For St. Vladimir, Robert T. Miller

Robert T Miller

Alasdair MacIntyre believes that the Aristotelian, virtue-theoretic morality he supports is incompatible with the economic arrangements of capitalism. In this brief article, I show that MacIntyre's main arguments for this thesis are based on discredited theories from Marx, not Aristotle, and that the arguments MacIntyre that gives that really are based on Aristotelian, virtue-theoretic notions all fail.

Nol Pill Reloaded: Selectica, Inc. V. Versata, Inc., Robert T. Miller

Robert T Miller

This short article discusses the Chancery Court opinion in Selectica, Inc. v. Versata Enterprises, Inc., in which Vice Chancellor Noble upheld the implementation and re-loading of an NOL poison pill. I argue that, although the case is for the most part relevant only to the limited sphere of NOL pills, the court's upholding of the reloading of the pill is likely of broader significance in Delaware takeover law.

Lyondell Chemical Co. V. Ryan: Good Faith Comes To Revlon-Land, Robert T. Miller

Robert T Miller

No abstract provided.

The Board's Duty To Monitor Risk After Citigroup, Robert T. Miller

Robert T Miller

When Citigroup suffered billions of dollars in losses on subprime securities, some of its shareholders sued the bank’s directors alleging that the losses resulted from breaches by the directors of their duty to properly monitor the risks that the bank was running by holding and dealing in such securities. After the Delaware Court of Chancery dismissed the complaint on the pleadings, many academic commentators argued that the court should have taken the opportunity to articulate more stringent legal standards governing director oversight. This contribution to a symposium at the University of Pennsylvania Law School argues that any significant expansion of …

The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller

Robert T Miller

In any large corporate acquisition, there is a delay between the time the parties enter into a merger agreement (the signing) and the time the merger is effected and the purchase price paid (the closing). During this period, the business of one of the parties may deteriorate. When this happens to a target company in a cash deal, or to either party in a stock-for-stock deal, the counterparty may no longer want to consummate the transaction. The primary contractual protection parties have in such situations is the merger agreement’s “material adverse change” (MAC) clause. Such clauses are heavily negotiated and …

Canceling The Deal: Two Models Of Material Adverse Change Clauses In Business Combination Agreements, Robert T. Miller

Robert T Miller

In any large corporate acquisition, there is a delay between the time the parties enter into a merger agreement (the signing) and the time the merger is effected and the purchase price paid (the closing). During this period, the business of one of the parties may deteriorate. When this happens to a target company in a cash deal or to either party in a stock deal, the counterparty may no longer want to consummate the transaction. Merger agreements typically protect counterparties against this risk through “material adverse change” (MAC) clauses, which permit the counterparty to cancel the deal if the …

Morals In A Market Bubble, Robert T. Miller

Robert T Miller

In this short piece, I respond to the idea that the financial crisis of 2007-2008 was caused by a frenzy of immoral practices in the real estate and financial markets. I argue that such a theory is fundamentally misguided. In reality, the Federal Reserve’s unduly accommodating monetary policy in 2002-2006 and certain structural features of the relevant financial markets (especially subprime loans) combined to produce the bubble in the residential real estate market in the United States. This happened not because of moral wrongdoing by market participants but as a result of individuals rationally pursuing their economic self-interest (a) in …

Hexion V. Huntsman: Elaborating The Delaware Mac Standard, Robert T. Miller

Robert T Miller

No abstract provided.

The End Of The Road For Dr. Miles: Leegin Creative Leather Products, Inc. V. Psks, Inc., Robert T. Miller

Robert T Miller

No abstract provided.

Servants Of One Sovereign Master, 134 First Things 51 (June/July 2003) (Reviewing Jeremy Waldron's God, Locke And Equality (2002)), Robert T. Miller

Robert T Miller

No abstract provided.

An Equal Division Of Property, 110 First Things 49 (February 2001) (Reviewing Ronald Dworkin, Sovereign Virtue (2000)), Robert T. Miller

Robert T Miller

No abstract provided.

Good Intentions, 112 First Things 41 (April 2001) (Reviewing John E. Coons And Patrick M. Brennan, By Nature Equal (1999)), Robert T. Miller

Robert T Miller

No abstract provided.

Posner's Laws Of Pragmatism, 118 First Things 54 (December 2001) (Reviewing Richard Posner, Frontiers Of Legal Theory (2001)), Robert T. Miller

Robert T Miller

No abstract provided.