Business Law, Public Responsibility, and Ethics Commons^™

Loophole Entrepreneurship, Brian M. Sirman

Fordham Journal of Corporate & Financial Law

All entrepreneurs seek favorable legal or regulatory treatment for their businesses. Sometimes this leads an entrepreneur to build a business within a gap in the law—a loophole. In so doing, these “loophole entrepreneurs” may avoid steep regulatory compliance costs that otherwise would beset (or perhaps prohibit) their businesses, thereby gaining advantages over competitors. Despite these benefits, loophole entrepreneurship is fraught with risks. Loopholes, by nature, are fragile, and their contours are often uncertain. Moreover, the stigma of “exploiting a loophole” (which connotes unfairness or deception) can provoke ill will among competitors, policymakers, and the public.

The ranks of loophole entrepreneurs …

Expanding Mfw: Delaware Law Should Offer A Business Judgment Rule Safe Harbor For All Conflicted Controller Transactions, Alex Lindsey

Fordham Journal of Corporate & Financial Law

While courts usually defer to a board’s business decisions under the business judgment rule, courts will apply a much less deferential standard of review due to loyalty concerns if a conflicted controller is involved in a business decision such as a merger. However, in Kahn v. M & F Worldwide (“MFW”) when a squeeze out merger was challenged by a minority stockholder, the Delaware Supreme Court reviewed the transaction under the deferential business judgment rule standard because the Court found that the structure of the transaction neutralized the controller loyalty concerns. Building on this reasoning, the Court developed a checklist …

The Coronavirus Pandemic Shutdown And Distributive Justice: Why Courts Should Refocus The Fifth Amendment Takings Analysis, Timothy M. Harris

Loyola of Los Angeles Law Review

The 2020 Coronavirus Pandemic and the ensuing shutdown of private businesses—to promote the public’ s health and safety— demonstrated the wide reach of state and local governments’ police power. Many businesses closed and many went bankrupt as various government programs failed to keep their enterprises afloat.

These businesses were shut down to further the national interest in stemming a global pandemic. This is an archetypal example of regulating for the public health—preventing a direct threat that sickened hundreds of thousands of Americans. But some businesses were disproportionately hit while others flourished. Many who bore the brunt of these regulations sued, …

The Foreign Investment Risk Review Modernization Act: The Double-Edged Sword Of U.S. Foreign Investment Regulations, J. Russell Blakey

Loyola of Los Angeles Law Review

No abstract provided.

Business For A Prosperous And Flourishing World, Chris Laszlo, David Cooperrider

The International Journal of Ethical Leadership

No abstract provided.

Navigating Sino-American Business Relationships, Ryan Stenquist

Marriott Student Review

Relationships between American and Chinese companies have never been more important or profitable as they are now. With linguistic, moral, governmental, and legal systems developed entirely independent of each other for thousands of years, these relationships also prove the most difficult and complex to navigate. This article explores mistakes foreigners often make while doing business in China, the current environment and culture of joint ventures with native Chinese, and how to succeed in the challenging yet rewarding economy now opening up to the world.

Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson

St. Mary's Journal on Legal Malpractice & Ethics

Business and law are increasingly practiced on a transnational scale, and law firms are adopting new business structures in order to compete on this global playing field. Over the last decade, global law firms have merged into so-called “mega-brands” or “mega-firms”—that is, associations of national or regional law firms that join together under a single brand worldwide. For law firms, the most common mega-firm structure has been the Swiss verein, though the English “Company Limited by Guarantee” structure is growing in popularity as well, as is the similar “European Economic Interest Grouping.” All of these structures allow related entities to …

Alternative Business Structures: Good For The Public, Good For The Lawyers, Jayne R. Reardon

St. Mary's Journal on Legal Malpractice & Ethics

There has been a shift in consumer behavior over the last several decades. To keep up with the transforming consumer, many professions have changed the way they do business. Yet lawyers continue to deliver services the way they have since the founding of our country. Bar associations and legal ethicists have long debated the idea of allowing lawyers to practice in “alternative business structures,” where lawyers and nonlawyers can co-own and co-manage a business to deliver legal services. This Article argues these types of businesses inhibit lawyers’ ability to provide better legal services to the public and that the legal …

The Arc And Architecture Of Private Enforcement Regimes In The United States And Europe: A View Across The Atlantic, Jason Rathod, Sandeep Veheesan

The University of New Hampshire Law Review

The United States and Europe have traditionally taken very different approaches to the regulation of harmful conduct. Previously, European nations relied almost entirely on the public enforcement of laws, whereas the United States relied on a mix of public and private actors. In the United States, private rights of action have played a central role deterring illegal conduct—and, in fact, provided greater deterrence than public enforcers in some areas of law. They have also allowed injured parties to obtain compensation. Despite their very different histories, the private enforcement systems in the United States and Europe are showing signs of convergence …

A Concept-Sensitive Managerial Analysis With Law: Applying A Business Concept To A Legal Rule To Identify The Domain Of Business Situations, James E. Holloway

William & Mary Business Law Review

The traditional fact-sensitive managerial analysis with law analyzes business situations to identify legal issues and applies legal rules to facts to make judicial decisions. The fact-sensitive managerial analysis takes decades to identify a family of business situations and lacks the analytical capacity to use business knowledge (concepts) and analytical methods to identify business situations. Alternatively, a concept-sensitive managerial analysis with law increases factual sensitivity by applying a business concept to a legal rule to shorten the duration of identifying an extensive family of business situations. All situations are not useful or effective when making business decisions or managing a business. …

The Unjustified Subsidy: Sovereign Wealth Funds The Foreign Sovereign Tax Exemption, Jennifer Bird-Pollan

Fordham Journal of Corporate & Financial Law

The taxation of Sovereign Wealth Funds in the United States is outmoded and due for reconsideration. Offering a tax exemption to the billion dollar investment funds owned by foreign governments is both unfair and ineffective. Founded in the principles of sovereign immunity, the foreign sovereign tax exemption, codified in I.R.C. § 892, fails to satisfy the Congressional goals that motivated its creation. This Article explains the current taxation of foreign sovereigns and, by extension, Sovereign Wealth Funds. It then illustrates that the current exemption is simultaneously too broad, providing a tax exemption for activities that are clearly nongovernmental activities, and …

The End Of The Internal Compliance World As We Know It, Or An Enhancement Of The Effectiveness Of Securities Law Enforcement? Bounty Hunting Under The Dodd-Frank Act's Whistleblower Provision, Justin Blount, Spencer Markel

Fordham Journal of Corporate & Financial Law

In the wake of Bernard Madoff’s $65 billion Ponzi scheme and the recent economic crisis stemming largely from loosely regulated subprime lending and mortgage-backed securities, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act on July 21, 2010, signaling loudly and clearly that change is coming to Wall Street. But Wall Street is not the only one receiving a message. Buried deep within the 2,319 pages of the Dodd-Frank Act, companies can find Section 922, the whistleblower provision, which provides a bounty for whistleblowers who report securities violations to the Securities and Exchange Commission.These bounty provisions and …

"The End Of The Beginning?": A Comprehensive Look At The U.N.'S Business And Human Rights Agenda From A Bystander Perspective, Jena Martin Amerson

Fordham Journal of Corporate & Financial Law

With the endorsement of the Guiding Principles regarding the issue of business and human rights, an important chapter has come to a close. Beginning with the then U.N. Secretary-General’s “global compact” speech in 1999, the international legal framework for business and human rights has undergone tremendous change and progress. Yet, for all these developments, there has been no exhaustive examination in the legal academy of all of these events; certainly there is no one piece that discusses or analyzes all the major instruments that have been proposed and endorsed by the U.N. on the subject of business and its relationship …

Warming Up To Climate Change Risk Disclosure, Jeffrey M. Mcfarland

Fordham Journal of Corporate & Financial Law

Investors are clamoring for companies to include more climate change risk disclosure in their periodic reports filed with the Securities and Exchange Commission (SEC). Yet public companies in the United States do a poor job of disclosing to investors how climate change affects their businesses. Although there have been several proposals for more voluntary disclosure of these risks and one petition for guidance from the SEC, these proposals are not effecting changes in disclosure practices quickly enough. This Article builds on existing proposals to create guidelines for mandatory climate change risk disclosure in periodic securities filings. The guidelines seek to …