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Full-Text Articles in Law
Against Secondary Meaning, Jeanne C. Fromer
Against Secondary Meaning, Jeanne C. Fromer
Notre Dame Law Review
Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning plays an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or …
Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller
Stock Market Value And Deal Value In Appraisal Proceedings, Robert T. Miller
Notre Dame Law Review
This Essay considers two methods of valuing public companies in the context of appraisal proceedings under section 262 of the Delaware General Corporation Law (DGCL). The first method relies on the efficient capital markets hypothesis (ECMH) and values the company based on the market price of its shares before any public disclosure of the possibility of a transaction (the unaffected market price). The second relies on the price that an unrelated party agrees to pay to acquire the company in a transaction negotiated at arm’s length after a robust sales process by the selling board (the deal price). Both the …
A Practice Worth Ending: Eps Guidance Harming Long-Term Growth, Rachel G. Miller
A Practice Worth Ending: Eps Guidance Harming Long-Term Growth, Rachel G. Miller
Notre Dame Law Review
This Note focuses on one factor—earnings per share (EPS) guidance—that contributes to myopic behavior and short-termism within public companies. Part I discusses the history of the shareholder primacy norm and the need for management to act in the best interest of its shareholders. Additionally, this Part provides background on EPS guidance and the notion of short-termism. Part II lays out a framework for quarterly reporting and argues that the current disclosure requirements should remain intact. This Part addresses the importance of frequency in quarterly reporting and provides two examples—the United Kingdom and Regulation A—of practices with longer reporting frequencies that …
A Rule-Based Method For Comparing Corporate Laws, Lynn M. Lopucki
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 from the …
Appraisal Arbitrage: In Case Of Emergency, Break Glass, Malaina J. Weldy
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 remedy’s …
Regulating Complacency: Human Limitations And Legal Efficacy, Steven L. Schwarcz
Regulating Complacency: Human Limitations And Legal Efficacy, Steven L. Schwarcz
Notre Dame Law Review
This Article examines how insights into limited human rationality can improve financial regulation. The Article identifies four categories of limitations—herd behavior, cognitive biases, overreliance on heuristics, and a proclivity to panic—that undermine the perfect-market regulatory assumptions that parties have full information and will act in their rational self-interest. The Article then analyzes how insights into these limitations can be used to correct resulting market failures. Requiring more robust disclosure and due diligence, for example, can help to reduce reliance on misleading information cascades that motivate herd behavior. Debiasing through law, such as requiring more specific, poignant, and concrete disclosure of …
The Criminalization Of Compliance, Todd Haugh
The Criminalization Of Compliance, Todd Haugh
Notre Dame Law Review
Corporate compliance is becoming increasingly “criminalized.” What began as a means of industry self-regulation has morphed into a multi-billion-dollar effort to avoid government intervention in business, specifically criminal and quasi-criminal investigations and prosecutions. In order to avoid application of the criminal law, companies have adopted compliance programs that are motivated by and mimic that law, using the precepts of criminal legislation, enforcement, and adjudication to advance their compliance goals. This approach to compliance is inherently flawed, however—it can never be fully effective in abating corporate wrongdoing. Criminalized compliance regimes are inherently ineffective because they impose unintended behavioral consequences on corporate …
Misalignment: Corporate Risk-Taking And Public Duty, Steven L. Schwarcz
Misalignment: Corporate Risk-Taking And Public Duty, Steven L. Schwarcz
Notre Dame Law Review
This Article argues for a “public governance duty” to help manage excessive risk-taking by systemically important firms. Although governments worldwide, including the United States, have issued an array of regulations to attempt to curb that risk-taking by aligning managerial and investor interests, those regulations implicitly assume that investors would oppose excessively risky business ventures. That leaves a critical misalignment: because much of the harm from a systemically important firm’s failure would be externalized onto the public, including ordinary citizens impacted by an economic collapse, such a firm can engage in risk-taking ventures with positive expected value to its investors but …