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Full-Text Articles in Law

Common Ownership And Coordinated Effects, Edward Rock, Daniel L. Rubinfeld Dec 2018

Common Ownership And Coordinated Effects, Edward Rock, Daniel L. Rubinfeld

New York University Law and Economics Working Papers

With the growth of common ownership and investor engagement with portfolio firms, the possibility of adverse competitive effects of common ownership has become an important issue. To date, most of the focus has been on “unilateral” effects. In this Article, we shift the focus to the potential “coordinated” effects of common ownership and the appropriate antitrust treatment. After examining the ways in which a common owner could be a particularly effective cartel facilitator, we identify five scenarios, based on antitrust case law and enforcement experience, in which common ownership could plausibly increase the potential for coordinated conduct in concentrated markets ...


Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield Nov 2018

Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield

Boston College Law School Faculty Papers

No abstract provided.


Investment Treaties, Offshore Finance, And The Resource Curse, Karl M.F. Lockhart Nov 2018

Investment Treaties, Offshore Finance, And The Resource Curse, Karl M.F. Lockhart

Boston College Law Review

Questions of how best to understand offshore financial centers (“OFCs”)—countries that have low or zero tax rates, strong banking secrecy regulation, and easy-to-form legal entities—and what, if anything, the international community should do about them remain fixed on the agenda of national and international discourse. This Essay seeks to provide a new theoretical perspective on tax havens and applies this perspective to the cross-border legal regimes that govern international investment. This new analytical framework sees offshore financial centers as countries that are victims of the “resource curse,” as that term is described in economic development literature. Often physically ...


Index Funds And The Future Of Corporate Governance: Theory, Evidence, And Policy, Scott Hirst Nov 2018

Index Funds And The Future Of Corporate Governance: Theory, Evidence, And Policy, Scott Hirst

Faculty Scholarship

Index funds own an increasingly large proportion of American public companies, currently more than one fifth and steadily growing. The stewardship decisions of index fund managers—how they monitor, vote, and engage with their portfolio companies can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policy making can improve it, is critical for corporate law scholarship. This Article contributes to such understanding by providing a comprehensive theoretical, empirical, and policy analysis of index fund stewardship.

We begin by putting forward an agency-costs theory of ...


A Rule-Based Method For Comparing Corporate Laws, Lynn M. Lopucki Nov 2018

A Rule-Based Method For Comparing Corporate Laws, Lynn M. Lopucki

Notre Dame Law Review

Part I explains the processes for specifying a Scenario. It introduces the Scenario that will serve as the illustration in the remainder of this Article—a comparison of the liability of directors for the exercise of poor judgment in a Delaware corporation with the corresponding liability in a United Kingdom public limited company. Part II explains and illustrates the necessity of selecting specific entity types for comparison. Part III describes and illustrates the method for resolving the Scenario in both jurisdictions. Part IV explains and illustrates the novel process for close comparison—the extraction, juxtaposition, and comparison of decisional rules ...


Revising The Vertical Merger Guidelines (Ftc Hearings), Steven C. Salop Nov 2018

Revising The Vertical Merger Guidelines (Ftc Hearings), Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This slide deck was the author’s presentation at the FTC Hearings on Vertical Mergers (November 1, 2018). The deck sets out a summary of the author’s economic analysis and proposed revisions to the U.S. Vertical Merger Guidelines.


Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr. Oct 2018

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial ...


Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law Oct 2018

Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Section 5: Business Law, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law Sep 2018

Section 5: Business Law, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


It's Tax Not Trade (Stupid), Edward J. Mccaffery Sep 2018

It's Tax Not Trade (Stupid), Edward J. Mccaffery

Edward J McCaffery

Globalization, trade and other free market policies increase wealth. But the gains from trade are not being evenly spread among all citizens. People and politicians rage against foreigners. But it is the United States tax system, not trade, that ought to change, and wealthy Americans, not workers world-wide, who should be sharing the wealth. A nd it is the form of tax, not just its rate structure, that must reform, so that capital at last bears a meaningful share of the burden.


Holding U.S. Corporations Accountable: Toward A Convergence Of U.S. International Tax Policy And International Human Rights, Jacqueline Laínez Flanagan Sep 2018

Holding U.S. Corporations Accountable: Toward A Convergence Of U.S. International Tax Policy And International Human Rights, Jacqueline Laínez Flanagan

Pepperdine Law Review

International human rights litigation underscores the inverse relationship between corporate power and corporate accountability, with recent Supreme Court decisions demonstrating increased judicial protections of corporate rights and decreased corporate accountability. This article explores these recent decisions through a tax justice framework and argues that the convergence of international human rights law and U.S. international tax policy affords alternate methods to hold corporations accountable for violations of international law norms. This article specifically proposes higher scrutiny of foreign tax credits and an anti-deferral regime targeting the international activity of U.S. corporations that use subsidiaries to shelter income and decrease ...


Fiduciary Duties Of Directors Of Insolvent Corporations: A Comparative Perspective, Alessandra Zanardo Sep 2018

Fiduciary Duties Of Directors Of Insolvent Corporations: A Comparative Perspective, Alessandra Zanardo

Chicago-Kent Law Review

Over the last two decades, in many jurisdictions great emphasis has been placed on directors’ fiduciary duties when a corporation is insolvent or in the amorphous “zone of insolvency”; notably, to investigate whether the directors should continue to promote the best interests of the corporation for the benefits of its shareholders, or whether their duties shift to creditors.

The resolution of this ubiquitous issue will help to answer the following questions: Do creditors have standing to pursue claims for breach of fiduciary duties in the insolvency scenario? And, if they do, is it direct or derivative standing?

This Article will ...


Making Sustainability Disclosure Sustainable, Jill E. Fisch Sep 2018

Making Sustainability Disclosure Sustainable, Jill E. Fisch

Faculty Scholarship at Penn Law

Sustainability is receiving increasing attention from issuers, investors and regulators. The desire to understand issuer sustainability practices and their relationship to economic performance has resulted in a proliferation of sustainability disclosure regimes and standards. The range of approaches to disclosure, however, limit the comparability and reliability of the information disclosed. The Securities & Exchange Commission (SEC) has solicited comment on whether to require expanded sustainability disclosures in issuer’s periodic financial reporting, and investors have communicated broad-based support for such expanded disclosures, but, to date, the SEC has not required general sustainability disclosure.

This Article argues that claims about the relationship ...


Taking Control Rights Seriously, Robert Rasmussen Sep 2018

Taking Control Rights Seriously, Robert Rasmussen

University of Southern California Legal Studies Working Paper Series

It is common to observe that investors receive both cash flow rights and control rights against a borrower. The crucial differences between these two “rights” is rarely focused on. Cash flow rights are rights in that they are legal entitlements. Outside of bankruptcy, failure to pay entitles a lender to resort to a legal remedy against the borrower. Inside of bankruptcy, the Bankruptcy Code structures the way in which these legal entitlements will be adjusted. Control rights are different. They do not confer direct power over the business, nor do they provide lenders with a judicial remedy that allows them ...


Equity Crowdfunding Portals Should Join And Enhance The Crowd By Providing Venture Formation Resources, Jeff Thomas Sep 2018

Equity Crowdfunding Portals Should Join And Enhance The Crowd By Providing Venture Formation Resources, Jeff Thomas

Nova Law Review

No abstract provided.


Economic Liberty "In A World Of Pure Imagination”: A Theoretical Analysis Of Willy Wonka, Natural Rights, And The New Age Of Innovation, Tammy M. Eick Sep 2018

Economic Liberty "In A World Of Pure Imagination”: A Theoretical Analysis Of Willy Wonka, Natural Rights, And The New Age Of Innovation, Tammy M. Eick

Nova Law Review

No abstract provided.


The Diminishing Duty Of Loyalty, Julian Velasco Sep 2018

The Diminishing Duty Of Loyalty, Julian Velasco

Journal Articles

Fiduciary duties comprise an integral part of corporate law. It is generally understood that directors owe the corporation and its shareholders two fiduciary duties: the duty of care and the duty of loyalty. Although both duties are firmly established in corporate law, they are not treated equally. It is generally understood that the duty of loyalty is enforced far more rigorously than the duty of care. The justification for this dichotomy is twofold. First, differential treatment is appropriate because of the relative urgencies of the underlying subject matter: loyalty issues pose greater risks than do care issues. Second, the deference ...


The Pro Bono Collaborative Project Spotlight: Rwu Law Alums Providing Pro Bono Through The Pbc (September 20, 2018), Roger Williams University School Of Law Sep 2018

The Pro Bono Collaborative Project Spotlight: Rwu Law Alums Providing Pro Bono Through The Pbc (September 20, 2018), Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.


The Privilege Doctrines--Are They Just Another Discovery Tool Utilized By The Tobacco Industry To Conceal Damaging Information?, Christine Hatfield Aug 2018

The Privilege Doctrines--Are They Just Another Discovery Tool Utilized By The Tobacco Industry To Conceal Damaging Information?, Christine Hatfield

Pace Law Review

This Comment will analyze the tobacco companies' use of the privilege doctrines to avoid litigation over the past thirty years, specifically focusing on the last fifteen years of litigation between this industry and its accusers. Part II of this Comment will discuss the pertinent discovery rules and the manner in which they are abused. Part III will examine the development, scope and limitations of the attorney-client privilege and work product doctrines, considering with particularity the corporate context and the applicability of the crime-fraud exception to these doctrines. Part IV will review the case law of the tobacco litigation, focusing on ...


Vertical Merger Enforcement Actions: 1994–July 2018, Steven C. Salop, Daniel P. Culley Aug 2018

Vertical Merger Enforcement Actions: 1994–July 2018, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

This is a revised version of our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 58 vertical matters beginning in 1994 through July 2018. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 Journal of Antitrust Enforcement 1 (2016).


Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey Aug 2018

Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey

Faculty Scholarship at Penn Law

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature ...


Serial Collusion By Multi-Product Firms, Michael Meurer, William Kovacic, Robert Marshall Aug 2018

Serial Collusion By Multi-Product Firms, Michael Meurer, William Kovacic, Robert Marshall

Faculty Scholarship

We provide empirical evidence that many multi-product firms have each participated in several cartels over the past 50 years. Standard analysis of cartel conduct, as well as enforcement policy, is rooted in the presumption that each cartel in which a given firm participates is a singular activity, independent of other cartel conduct by the firm. We argue that this analysis is deficient in many respects in the face of serial collusion by multi-product firms. We offer policy recommendations to reign in serial collusion, including a mandatory coordinated effects review for any merger involving a serial colluder, regardless of the apparent ...


How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones Aug 2018

How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones

Boston College Law School Faculty Papers

No abstract provided.


Appraisal Arbitrage: In Case Of Emergency, Break Glass, Malaina J. Weldy Aug 2018

Appraisal Arbitrage: In Case Of Emergency, Break Glass, Malaina J. Weldy

Notre Dame Law Review

Part I of this Note introduces the appraisal remedy, outlining its history, purpose, and modern justifications. It also details the procedural process for bringing an appraisal claim. Part II examines the rise of appraisal in its current arbitrage form, delving into the various reasons set forth to explain its rise, as well as how the recent amendments to the Delaware appraisal statute have addressed these issues. This Part also analyzes Delaware’s recent merger price “presumption” trend. Part III puts forth several arguments in light of this trend, with the intent that such arguments will both justify and protect the ...


The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin Aug 2018

The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin

Boston College Law School Faculty Papers

Although much attention has been given to structural inequality as it manifests in the criminal justice context, little has been said about economic inequality as it relates to the startup ecosystem. This Article details how the historic creation of the wealth gap affects entrepreneurship, highlighting how the wealth gap adversely impacts entrepreneurs of color. Entrepreneurship is a compelling solution to wealth inequality, but wealth inequality can be an impediment to success in entrepreneurship. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup ...


Omar Abdel-Aleem Et Al., Order On Pending Motions, Melvin K. Westmoreland Jul 2018

Omar Abdel-Aleem Et Al., Order On Pending Motions, Melvin K. Westmoreland

Georgia Business Court Opinions

No abstract provided.


Shareholder Collaboration, Jill E. Fisch, Simone M. Sepe Jul 2018

Shareholder Collaboration, Jill E. Fisch, Simone M. Sepe

Faculty Scholarship at Penn Law

Two models dominate the debate on the theory of the firm. Under the management-power model, decision-making power exclusively belongs to corporate insiders (officers and directors). The competing shareholder-power model contemplates increasing shareholder power to limit managerial authority. Both models are focused on managerial agency costs and address the appropriate allocation of power between insiders and shareholders to minimize these costs. Both models also assume that insiders and shareholders are engaged in a competitive struggle for corporate power.

Corporate practice has moved on, however. Increasingly, the insider-shareholder dynamic is collaborative, not competitive. This Article traces the development of insider-shareholder collaboration and ...


On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr. Jul 2018

On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr.

Glynn Lunney

No abstract provided.


The Certification Paradox, Jonathan M. Barnett Jul 2018

The Certification Paradox, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

It is commonly observed that certification intermediaries mitigate informational asymmetries by “lending” reputational capital to support transacting parties’ quality commitments. However, this proposition is challenged by cases in which well-established intermediaries have failed to detect fraud, misrepresentation and other misbehavior. The “certification paradox” provides a more nuanced account that anticipates both the general success, and periodic failure, of certification intermediaries. Transacting parties minimize search and evaluation costs by using a small number of certification intermediaries with large stocks of reputational capital. Incumbent certifiers are substantially protected by entrants’ high costs of accumulating sufficient reputational capital and users’ high costs of ...


The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva Jul 2018

The Sec And Foreign Private Issuers: A Path To Optimal Public Enforcement, Yuliya Guseva

Boston College Law Review

This Article examines SEC enforcement policies and seeks to find the optimum approach to enforcement against foreign private issuers. My previous empirical study of securities class actions against foreign firms identified a number of crucial developments that mainly occurred after Morrison v. National Australia Bank. In Morrison, the Supreme Court sought to limit the extraterritorial reach of the antifraud provisions of the U.S. securities laws. The Court has scaled down the exposure of foreign issuers to securities liability risk, particularly in class-action litigation. If the Supreme Court in Morrison has created a risky enforcement lacuna on the side of ...