Law Commons^™

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 …

Regulating Business Innovation As Policy Disruption: From The Model T To Airbnb, Eric Biber, Sarah E. Light, J.B. Ruhl, James Salzman

Vanderbilt Law Review

Many scholars have invoked the term "disruptive innovation" when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy are surely important, but we argue that recent scholarship focusing on the immediacy and novelty of the platform economy has been ahistorical, and has therefore missed the bigger picture about how to regulate it. History is full of technological and management advances that fundamentally disrupted business models for a brief period of time. When business innovation upends a preexisting business model in a …

Governance Challenges Of Listed State- Owned Enterprises Around The World: National Experiences And A Framework For Reform, Curtis J. Milhaupt, Mariana Pargendler

Cornell International Law Journal

Despite predictions of their demise in the aftermath of the collapse of socialist economies in Eastern Europe, state-owned enterprises (SOEs) are very much alive in the global economy. The relevance of listed SOEs— firms subject to government ownership, but with a portion of their shares traded on public stock markets— has persisted and even increased around the world, as policymakers have encouraged the partial floating of SOE shares either as a first step toward, or as an alternative to, privatization. In this Article, we evaluate the governance challenges associated with mixed ownership of enterprise, and examine a variety of national …

Reviving Reliance, Ann M. Lipton

Fordham Law Review

This Article explores the misalignment between the disclosure requirements of the federal securities laws and the private causes of action available to investors to enforce those requirements. Historically, federally mandated disclosures were designed to allow investors to set an appropriate price for publicly traded securities. Today’s disclosures, however, also enable stockholders to participate in corporate governance and act as a check on managerial misbehavior. To enforce these requirements, investors’ chief option is a claim under the general antifraud statute, section 10(b) of the Securities Exchange Act of 1934. But courts are deeply suspicious of investors’ attempts to use the Act …

Uniform Commercial Acts, Samuel Williston

Dickinson Law Review (2017-Present)

No abstract provided.

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …

Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Distributed Governance, Carla L. Reyes, Nizan Geslevich Packin, Ben Edwards

William & Mary Law Review Online

Distributed ledger technology disrupts traditional business organizations by introducing new business entities without the directors and officers of traditional corporate entities. Although these emerging entities offer intriguing possibilities, distributed entities may suffer significant collective action problems and expose investors to catastrophic regulatory and governance risks. Our Article examines key considerations for stakeholders and argues that distributed entities must be carefully structured to function effectively. This Article breaks new ground by critically examining distributed entities. We argue that a distributed model is most appropriate when distributed ledger technology solves a unique corporate governance problem. We caution against ignoring the lessons painstakingly …

Lewis V. Clarke, Summer L. Carmack

Public Land & Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …

Could The Pay Ratio Disclosure Backfire? Examining The Effects Of The Sec's Pay Ratio Disclosure Rule, Jillian Loh

Texas A&M Law Review

At the signing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), President Barack Obama asserted that, “We all win when investors around the world have confidence in our markets. We all win when shareholders have more power and more information. . . . And we all win when folks are rewarded based on how well they perform, not how well they evade accountability.” After the financial crisis in 2008, the Obama Administration recognized the need to reconstruct the existing American financial regulatory system to ensure that a financial meltdown would never happen again. It …

Supremacy Of Law Or Religion: Congress's Power To Amend The Constitution Bypassing Constraints Of The Constitutional Process, Roman Sankovych

DePaul Business & Commercial Law Journal

No abstract provided.

The Netflix Tax: Chicago's Extension Of Its Amusement Tax To Include Electronically Delivered Entertainment Faces Numerous Changes And Sets The Stage For Taxing On Streaming-Based Entertainment, Stephanie Cueman

DePaul Business & Commercial Law Journal

No abstract provided.

Dodd-Frank Wall Street Reform And Consumer Protection Act: The Evolution Of Whistleblower Protections, Employment Contracts And Mandatory Arbitration Agreements, Florence Shu-Acquaye

DePaul Business & Commercial Law Journal

No abstract provided.

The Eleventh Circuit's Second Shot At Getting It Right: Nonconsensual Nondebtor Releases In Bankruptcy Court, Pierce G. Hand Iv

DePaul Business & Commercial Law Journal

No abstract provided.

Contractual Responsibility For The Disclosure Of Bank Secrets, Alexander V. Syatchikhin, Valery G. Golubtsov, Natalia V. Syropiatova

Journal of Digital Forensics, Security and Law

In Russia the existing measures of civil liability for disclosure of bank secrecy contribute to the prevention of non-fulfillment of obligations and the restoration of the situation of credit institutions only to a small extent. Thus, the Civil Code of the Russian Federation grants the creditor the right to recover damages. However, it is practically impossible to prove the size of the real damage and loss of profit, as well as the causal relationship between the disclosure of secrecy and losses in fact.

The authors discuss the issue of the possibility of introducing legal design of liquidated damages into domestic …

Corporate Family Law, Allison Anna Tait

Northwestern University Law Review

There is no such thing as corporate family law. But there are corporate families, and corporate families fight. What happens when corporate family members fight and the conflict is so severe that one or more of the parties wants out of the corporate relationship? Corporate law provides some solutions, but they are shaped by the assumption that all parties will bargain effectively for protections when seeking to exit a corporate relationship. Under this theory, family business is, after all, just business. The problem with this assumption is that corporate family members do not bargain the way that corporate law expects. …

An American Football Team In London: How Tax Consequences For International Athletes Could Affect The Success Of A Potential Nfl Franchise In London, Brett Smith

The Business, Entrepreneurship & Tax Law Review

Although the NFL has not announced any definite plans to place a team in London, it has taken significant steps in that direction. By 2022, it could be a reality. As the laws in the U.S. and U.K. currently stand, NFL athletes playing for a team in London would face more income taxes than if they played for a U.S.-based team. The extra tax liability the players would face in the U.K. could prevent players from signing with the London team. If the London franchise struggles to field talent, it will struggle on the field as well. Without reform in …

Is There Hope For Change? The Evolution Of Conceptions Of Good Corporate Governance, Lynne L. Dallas

San Diego Law Review

To provide a useful perspective on corporate governance today, this Article examines the evolution of conceptions of “good” corporate governance that have successively revolutionized the corporate landscape. By the use of “evolution,” I do not mean some natural evolution, but changes in the beliefs of managers concerning how to run their businesses effectively. “Good” corporate governance refers to what is perceived as good from the point of view of firm managers and may or may not translate into what is good for society. This Article shows that corporate decision making was influenced over the years by successive, rationalized ideals of …

Typology Of Public-Private Equity, Sung Eun (Summer) Kim

Florida State University Law Review

Private equity, which pools funds for investment in private businesses, is one of the largest and fastest growing investment opportunities in the markets today. Private equity traditionally sought investments exclusively from sophisticated investors such as high net worth individuals and institutional investors. More recently, however, a growing number of private equity businesses have gone public and opened their doors to public investors, who are drawn to these investments because of the possibility of high returns and the opportunity to diversify their investment portfolios. In this Article, I review the universe of public-private equity (or PPE) businesses that are traded on …

Case Law On American Indians: August 2015—August 2016, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

To Be A "Whistleblower," Or Not To Be A "Whistleblower? " That Is The Question-Whether 'Tis Nobler In The Mind Of The Courts To Suffer For Reporting Wrongdoing To The Sec Or Employers Internally: Examining The Recent Circuit Split Regarding The Definition Of A Whistleblower Under Dodd-Frank, Luke I. Landers

The Journal of Business, Entrepreneurship & the Law

Under the current state of the law, the circuit courts are split over whether an employee must report corporate wrongdoing directly to the Securities and Exchange Commission (SEC), or report wrongdoing to a company’s management in order to receive whistleblower protection under Dodd–Frank. The resolution of this circuit split not only will have implications for American employees caught in situations similar to the fiction above, but also will provide a prime opportunity for the Supreme Court to clarify how courts are to understand the interpretive and deferential relationship between the language of legislative statutes and their corresponding bureaucratic regulations. In …

Clarifying The Original Clawback: Interpreting Sarbanes-Oxley Section 304 Through The Lens Of Dodd-Frank Section 954, J. Royce Fichtner, Patrick Heaston, Lou Ann Simpson

The Journal of Business, Entrepreneurship & the Law

In the early 2000s, major accounting scandals involving reporting violations and audit failures sent the United States financial markets into turmoil. Congress and President George W. Bush reacted to the controversy by passing the Public Company Accounting Reform and Investor Protection Act, better known as the Sarbanes–Oxley Act (SOX), in July of 2002. Section 304 created an explicit procedure, whereby the SEC could disgorge or clawback a CEO or CFO’s incentive-based compensation or stock gains when such profits were based on inflated financial statements later required to be restated to reflect the company’s true financial position. When the stock market …

Human Rights And Cybersecurity Due Diligence: A Comparative Study, Scott J. Shackelford

University of Michigan Journal of Law Reform

No company, just like no nation, is an island in cyberspace; the actions of actors from hacktivists to nation-states have the potential to impact the bottom line, along with the human rights of consumers and the public writ large. To help meet the multifaceted challenges replete in a rapidly globalizing world—and owing to the relative lack of binding international law to regulate both cybersecurity and the impact of business on human rights—companies are reconceptualizing what constitutes “due diligence.” This Article takes lessons from both the cybersecurity and human rights due diligence contexts to determine areas for cross-pollination in an effort …

Anything But Common: New York's "Pending Or Anticipated Litigation" Limitation To The Common Interest Doctrine Creates More Problems Than It Solves, Eric A. Franz

Washington Law Review

New York’s highest court recently handed down Ambac v. Countrywide, a decision that has major ramifications in the mergers and acquisitions (M&A) world. Once parties sign a merger or acquisition agreement, they share a common interest in ensuring that both parties comply with applicable laws, a process that requires legal communications with each other’s attorneys. Under the common interest doctrine, Delaware and the majority of federal circuits apply the attorney-client privilege to shield many of these communications from discovery. However, Ambac upset M&A attorneys’ reliance on the common interest doctrine by holding that parties to a merger waive their …

Coordination And Monitoring In Changes Of Control: The Controversial Role Of “Wolf Packs” In Capital Markets, Anita Anand, Andrew Mihalik

Osgoode Hall Law Journal

Given recent empirical work suggesting that Canada is one of two countries in which outcomes favourable to shareholder activists are more likely than in the United States, one might wonder whether shareholders in Canadian public companies have become too empowered. This concern takes on particular significance in light of controversies arising from the emergence of “wolf packs”: loose networks of parallel-minded shareholders (typically hedge funds) that act together to effect change in a given corporation without disclosing their collective interest. This article analogizes the role of wolf packs in the corporation to that of a blockholder. It isolates certain conditions …

Violence Taxes: New Way To Recoup And Prevent The Costs Of Gun Violence? Or New Method To Destroy Business And Competitiveness?, Joseph R. Buoscio Jr.

DePaul Business & Commercial Law Journal

No abstract provided.

In Retrospect Of 40 Years, Another Look At Andrews' Personal Deductions Argument: A Comparison Of Charitable Contributions And Child-Care Expenses, Limor Riza

DePaul Business & Commercial Law Journal

No abstract provided.

The Centralization Of The Banking Industry: Dodd-Frank's Impact On Community Banks And The Need For Both Regulatory Relief And An Overhaul Of The Current Framework, Bryce W. Newell

DePaul Business & Commercial Law Journal

No abstract provided.

Halliburton Ii: A Missed Opportunity To Right The Wrong In Rule 10b-5 Based Class Actions, Erich L. Schmitz

DePaul Business & Commercial Law Journal

No abstract provided.

Continuing Conundrum Of Mistakes: Where The Dodd-Frank Act Went Wrong, Shipra Mehta

DePaul Business & Commercial Law Journal

No abstract provided.