Law Commons^™

Beyond Ownership: State Capitalism And The Chinese Firm, Curtis J. Milhaupt, Wentong Zheng

UF Law Faculty Publications

Chinese state capitalism has been treated as essentially synonymous with state-owned enterprises (SOEs). But drawing a stark distinction between SOEs and privately owned enterprises (POEs) misperceives the reality of China’s institutional environment and its impact on the formation and operation of large enterprises of all types. We challenge the “ownership bias” of prevailing analyses of Chinese firms by exploring the blurred boundary between SOEs and POEs in China. We argue that the Chinese state has less control over SOEs and more control over POEs than its ownership interest in the firms suggests. Our analysis indicates that Chinese state capitalism can …

Shareholder Wealth Maximization And Its Implementation Under Corporate Law, Bernard S. Sharfman

Florida Law Review

This Article tackles the question of when courts should intervene in the decision-making of a corporation and review a corporate business decision for shareholder wealth maximization. This Article takes a very traditional approach to answering this question. It notes with approval that courts have historically been very hesitant to participate in the process of determining if a corporate decision is wealth maximizing. Courts have restrained themselves from interfering with board decision-making because they understand that it is the board of directors (the board) in coordination with executive management that has the best information and expertise to determine if a corporate …

Facilitating Successful Failures, Michelle M. Harner, Jamie Marincic Griffin

Florida Law Review

Approximately 80,000 businesses fail each year in the United States. This Article presents an original empirical study that surveys more than 400 business restructuring professionals. The study focuses on a critical factor that arguably contributes to these failures—the conduct of boards of directors and management. Anecdotal evidence suggests that management of distressed companies often bury their heads in the sand until it is too late to remedy the companies’ problems, a phenomenon commonly called “ostrich syndrome.” The data confirm this behavior, shows a prevalent use of loss framing, and suggest trends consistent with prospect theory. This Article draws on both …

Deferred Prosecutions And Corporate Governance: An Integrated Approach To Investigation And Reform, Lawrence A. Cunningham

Florida Law Review

When evaluating how to proceed against a corporate investigative target, law enforcement authorities often ignore the target’s governance arrangements, while subsequently negotiating or imposing governance requirements, especially in deferred prosecution agreements. Ignoring governance structures and processes amid investigation can be hazardous, and implementing improvised reforms afterwards may have severe unintended consequences—particularly when prescribing standardized governance devices. Drawing, in part, on new lessons from three prominent cases—Arthur Andersen, AIG, and Bristol-Myers Squibb—this Article criticizes prevailing discord and urges prosecutors to contemplate corporate governance at the outset and to articulate rationales for prescribed changes. Integrating the role of corporate governance into prosecutions …

Confronting The Two Faces Of Corporate Fraud, Miriam H. Baer

Florida Law Review

Some criminals engage in meticulous planning. Others commit crimes in the heat of the moment. Corporate fraud incorporates both planned and spur-of-the-moment misconduct. Although law and economics scholars have traditionally viewed corporate fraud as a manifestation of opportunism among the corporation’s agents, a new generation of scholars, influenced by findings in behavioral psychology, has focused on the temporal aspects of corporate misconduct. Wrongdoing comes about, not simply because an agent opportunistically takes advantage of her principal, but also because her short-term self falls prey to temptations and cognitive biases that effectively disable her law-abiding long-term self.

Although the law and …

Ceo Retention, Lee Harris

Florida Law Review

Again and again, economists, corporate law scholars, and Congress have turned to reforms, such as executive compensation reforms, as a solution to executive misbehavior. The root of the evil, they muse, is skyhigh pay with only a flimsy connection to managerial performance. If CEO pay can only be rejiggered on the front end and tied to performance, the argument goes, executives can be expected to pursue shareholder interests and put aside egos, and firms will prosper. This Article argues that such reforms are, despite the best of intention, fool’s gold. The fallacy is not in thinking that CEOs and other …

Dampening Financial Regulatory Cycles, Brett Mcdonnell

Florida Law Review

Financial regulation should be countercyclical, strengthening during speculative booms to contain excessive leverage and loosening following crises so as to not limit credit extension in hard times. And yet, financial regulation in fact tends to be procyclical, strengthening following crises and loosening during booms. This Article considers competing descriptive and normative analyses of that procyclical tendency. All of the models and arguments considered are rooted in a public choice perspective on financial regulation, i.e., rational choice ideas drawn from economics and applied to politics, but with that perspective modified to take account of behavioralist biases in rationality, particularly the availability …

The Economics And Regulation Of Network Branded Prepaid Cards, Todd J. Zywicki

Florida Law Review

One of the fastest growing sectors of the consumer payments marketplace is the general-purpose reloadable prepaid card sector. Their importance accelerated as a consequence of new regulations enacted in the wake of the 2008 financial crisis. This increased use of prepaid cards also increased angst among regulators, especially regarding the number and size of fees on prepaid cards. State and federal regulators as well as Congress are interested in imposing new regulations on prepaid cards. These calls for regulation, however, proceed in a largely fact-free environment. This Article describes the current economic and regulatory landscape for prepaid cards. The market …