Law Commons^™

Spactivism, Sharon Hannes, Adi Libson, Gideon Parchomovsky

All Faculty Scholarship

In this Essay, we propose a modified version of the SPAC designed to allow the public to participate in the world of corporate activism. Unlike existing SPACs, our version is designed for investments in public companies in order to change their course of action, not in private companies in order to make them go public, and overcomes many of the problems that pertain conventional SPACs. At present, direct investment in activism is reserved to affluent individuals and other professional investors of activist hedge funds. The public at large is barred from directly entering the activist arena. The current model comes …

Moby-Dick As Corporate Catastrophe: Law, Ethics, And Redemption, David Yosifon

University of Cincinnati Law Review

Herman Melville’s Moby-Dick serves here as a vehicle through which to interrogate core features of American corporate law and excavate some of the deeper lessons about the human soul that lurk behind the pasteboard mask of the law’s black letter. The inquiry yields an illuminating vantage on the ethical consequences of corporate capital structure, the law of corporate purpose, the meaning of voluntarism, the ethical stakes of corporate fiduciary obligations, and the role of lawyers in preventing or facilitating corporate catastrophe. No prior familiarity with the novel or corporate law is required.

Protecting The Throne: The Third Circuit's Decision To Preserve Sovereign Immunity In Gentile V. Sec, Ryan Brady, John Reid

Villanova Law Review

No abstract provided.

Ftc Enforcement Authority In The Modern Era: A Commission In Crisis?, Brandon Mantilla

University of Miami Business Law Review

This note provides a brief history of the Federal Trade Commission (FTC)’s enforcement authority before analyzing the U.S. Court of Appeals for the seventh Circuit’s circuit-splitting decision in FTC v. Credit Bureau Center, LLC. As the Supreme Court prepares to tackle questions surrounding authority to seek monetary relief, I contextualize how enforcement authority has historically been derived before analyzing how the issue may be resolved. Doing so involves engaging several cases that may prove consequential in determining the outcome and outlines potential legislative solutions to the battle over restitution. Before arriving at the most likely scenarios, a view of the …

Good Corporate Governance Policies And Disclosure Mechanisms In Startup Companies, Yahel Kaplan

University of Miami Business Law Review

In the past decades, particularly following the collapse of huge corporation such as WorldCom and Enron due to dubious or illegal financial management, countries began gradually increasing the oversight of publicly traded companies with few jurisdictions conjuring recommended corporate governance codes (RCGC) to ensure sufficient oversight, reduce manager’s ability to loot their companies, and ensure that shareholders’ and stakeholders’ interests are monitored effectively by companies. While RCGC was intended namely for public company, several organizations called for the adoption of RCGC in startup companies. Startup companies suffer from various failures which the classic corporate laws are not equipped to address …

Publicly Traded Justice, Samuel Ludington

University of Miami Business Law Review

Private prisons, like hotels, are most profitable when they are at maximum occupancy and their guests stay for longer periods of time. Because the business-model for private prisons is predicated on incarceration rates dictated by public policy, one would presume that private prison corporations expend great resources to advocating for stricter criminal laws and sentencing. This note explores the role of political lobbying and campaign contributions of private prison corporations to see if a correlative relationship exists between their advocacy and stricter crime laws. Part I of the note provides a history of private prisons in America and explores the …

Lessons For Today By The Deregulation Of Yesteryear: Analyzing Modern Capital Market Deregulation With Historical Examples, Jordan J. Saddoris

University of Miami Business Law Review

Financial market regulators in the US have proposed cutting down their own rulebooks in recent years. However, when it comes to deregulating modern capital markets, the outcomes of historical alterations of similar natures should serve as lessons in what works and what doesn’t. This comment analyzes three modern-day proposals to deregulate US financial markets, using historical actions to argue for the likely efficacy of each.

Regulation Best Interest: Is The Sec Finally Choosing Main Street Over Wall Street?, Ana Marcos

University of Miami Business Law Review

No abstract provided.

The Occ Fintech Charter And The Bank Holding Company Act, Lauren Bomberger

University of Miami Business Law Review

The definition of a bank under the Bank Holding Company Act of 1956 (“BHCA”) has changed several times since the statute was first enacted. Congress has identified a number of underlying rationales for applying the BHCA to certain entities thus necessitating a change in the definition. Recent innovations in technology, however, have made it challenging to adapt the U.S. financial regulatory regime to these advances, particularly for the financial technology (“FinTech”) industry. The Office of the Comptroller of the Currency’s (“OCC”) FinTech charter is one example of an attempt by a U.S. financial regulator to grapple with emerging technologies in …

Analysis Of Section 230 Under A Theory Of Premises Liability: A Focus On Herrick V.Grindr And Daniel V. Armslist, Kassandra C. Cabrera

University of Miami Business Law Review

Section 230 of the Communications Decency Act (“CDA”) has been held to give online service providers acting as interactive computer services sweeping immunity for content posted on their platforms. The intention behind the creation of Section 230 was not to immunize online service providers from all liability. Rather, Section 230 was enacted to protect online intermediaries acting as “Good Samaritans” – those who made “good faith” efforts to restrict unlawful or harmful content, but due to the breadth of the internet and advancements in technology over or under-filtered content on their platforms. This note outlines an approach for courts to …

Proving Economic Loss For In-And-Out Traders In Light Of First Solar, Daniel Roy Settana Iii

University of Miami Business Law Review

Federal courts have grappled with the issue of whether or not to include in-and-out traders in federal securities class action lawsuits. One set of courts has excluded in-and-out traders on the grounds that they could not prove loss causation, while another set of courts has included in-and-out traders because of the possibility that they could prove that they had suffered a loss. In Mineworker’s Pension Scheme versus First Solar, Inc., the Ninth Circuit recently addressed what should be the correct standard for loss causation. While the Ninth Circuit’s decision resolved its own intra-circuit split, the Court’s decision widened an already …

With Coronavirus Ravaging The Economy, Congress Shows Highest Tax Priorities: An Exploration Of The Provisions In The Cares Act And Beyond, Paul Nylen, Brian Huels, Shane Wheeler

University of Miami Business Law Review

The virus known as SARS–CoV–21 (Coronavirus) swept over the United States in ways that no other crisis has affected modern society. While the Spanish Flu of 1918 has often been cited for its pandemic similarities to the Coronavirus, from an economic standpoint the attacks of September 11, 2001, and the Great Recession of 2008 are perhaps the Coronavirus’s best analogy for the modern economic carnage that has occurred. In those previous events, Congress responded with sweeping legislation like Dodd–Frank and the Patriot Act. With the Coronavirus, Congress responded with the CARES Act. Within the CARES Act are historical changes to …

Business Judgment Rule Or Due Diligence? How To Reduce Vicarious Liability For Spac Directors And Officers, Beau Duty

University of Arkansas at Little Rock Law Review

No abstract provided.

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Roberta Karmel And The "Brooklyn School", Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this contribution, Professor Janger describes Roberta Karmel’s extraordinary contributions to the intellectual, scholarly, and institutional life of Brooklyn Law School.

“The Eu Challenge To The Sec”: A View From 2021, Howell E. Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

This essay offers a retrospective appreciation of Professor Roberta Karmel’s scholarship exploring the influence of securities regulation in the United States on developments in European capital markets regulation in the late 1990’s and early 2000’s. Professor Karmel’s writings document a fascinating evolution in this trans-Atlantic relationship as the Securities and Exchange Commission transitioned from the world’s dominant capital market regulator throughout most of the post-World War II era into a more collaborative posture by the end of the first decade of the Millennium. The essay concludes by suggesting that the trends that Professor Karmel chronicled in her scholarship have persisted …

Full Of Questions And Wonder: Roberta Karmel's Legacy, Alan R. Palmiter

Brooklyn Journal of Corporate, Financial & Commercial Law

Roberta Karmel has been perhaps the keenest observer and commentator on the securities industry and its regulation for the past five decades. Her observations about securities regulation—during the SEC’s precocious adolescence and into its young adulthood—have framed the academic inquiry of all of us who have written on the subject during this period. But more valuable to us than her observations have been her questions, full of wonder and penetrating insight. We securities academics, the enterprise of securities regulation, and especially market capitalism, all owe an enormous debt of gratitude to Professor Karmel.

Corporations Without Representation: The Constitutionality Of Gender Diversity Mandates, Talley Ransil

Utah Law Review

Biases and structural barriers contribute to the glacial pace at which women are represented on corporate boards. Even though companies with at least one female board of director outperform companies with no female directors, women only held 20% of board of director positions in 2019. Companies nationwide would not reach gender equality in the boardroom for decades without legally enforceable gender diversity requirements. In response, California Senator Jackson proposed SB 826—requiring California-based publicly held corporations to include at least one woman on their board of directors. However, conservative legal organizations filed lawsuits claiming California’s gender diversity mandate violates the California …

Business Associations, Stuart E. Walker

Mercer Law Review

This Article surveys some noteworthy cases involving corporations and limited liability companies decided by the Georgia Court of Appeals between June 1, 2020, and May 31, 2021.

Corporate Crime And Punishment: An Empirical Study, Dorothy S. Lund, Natasha Sarin

All Faculty Scholarship

For many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate criminal enforcement overdeters beneficial corporate activity or in the alternative, lets corporate criminals off too easily. This debate has recently expanded in its polarization: On the one hand, academics, judges, and politicians have excoriated enforcement agencies for failing to send guilty bankers to jail in the wake of the 2008 financial crisis; on the other, the U.S. Department of Justice has since relaxed policies that encouraged individual prosecutions and reduced the size of fines and number of prosecutions. A crucial and yet understudied …

Reexamining The Vicarious Criminal Liability Of Corporations For The Willful Crimes Of Their Employees, Evan Tuttle

Cleveland State Law Review

Corporate compliance programs in the United States have evolved substantially in the past several decades, expanding exponentially in both number and scope. Yet, our legal standard of corporate criminal liability for the acts of employees has remained largely unchanged for the past fifty years. United States v. Hilton Hotels established that a corporation can be held liable for the acts of its employee, even though the employee’s conduct may be contrary to their actual instructions or contrary to the employer’s stated policies. That holding, cited with favor by the Supreme Court, was based on a deeply flawed interpretation of precedent, …

Antitrust And Platform Monopoly, Herbert J. Hovenkamp

All Faculty Scholarship

Are large digital platforms that deal directly with consumers “winner take all,” or natural monopoly, firms? That question is surprisingly complex and does not produce the same answer for every platform. The closer one looks at digital platforms the less they seem to be winner-take-all. As a result, competition can be made to work in most of them. Further, antitrust enforcement, with its accommodation of firm variety, is generally superior to any form of statutory regulation that generalizes over large numbers.

Assuming that an antitrust violation is found, what should be the remedy? Breaking up large firms subject to extensive …

Beyond The Public Square: Imagining Digital Democracy, Mary Anne Franks

Articles

To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic clich6 of the unregulated public square and commit to the hard work of designing for democracy.

When we say 'public square,' ... we need to ask- who or what is this public? Who owns this space, what makes it public? . . . This is the essence of democracy: the ability to question power, and the power to do so. - Tom Wilkinson

Appendix: Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

William & Mary Law Review Online

Appendix to article in William & Mary Law Review vol. 63, no. 2 (2021), "Board Gender Diversity: A Path to Achieving Substantive Equality in the United States" by Kimberly A. Houser and Jamillah Bowen Williams.

The Supreme Court And The Pro-Business Paradox, Elizabeth Pollman

All Faculty Scholarship

One of the most notable trends of the Roberts Court is expanding corporate rights and narrowing liability or access to justice against corporate defendants. This Comment examines recent Supreme Court cases to highlight this “pro-business” pattern as well as its contradictory relationship with counter trends in corporate law and governance. From Citizens United to Americans for Prosperity, the Roberts Court’s jurisprudence could ironically lead to a situation in which it has protected corporate political spending based on a view of the corporation as an “association of citizens,” but allows constitutional scrutiny to block actual participants from getting information about …

Unep And Marine & Environmental Law Institute, "Plastics Toolbox: Business, Human Rights, And The Environment" (Last Updated November 2021) (Dalhousie University, Schulich School Of Law), Marine And Environmental Law Institute

Human Rights-based Approaches to Plastic Pollution

The Plastics Toolbox: Business, Human Rights, and the Environment, compiles good practices and cross-cutting guidance on a human rights-based approach to plastic pollution prevention and management with a focus on capacity building of governments and businesses in the East Asian Seas region. This compilation of resources, guidance, tools and trainings was prepared by a team of researchers at Dalhousie University's Marine and Environmental Law Institute under the direction of project lead Dr Sara L Seck, with funding from the United Nations Environment Programme. The materials in the toolbox were gathered from May to August 2021 and updated in November 2021. …

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowen Williams

William & Mary Law Review

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …

Corporate Family Matters, Carliss N. Chatman

UC Irvine Law Review

Corporate groups dominate the American economy. Known publicly by a single name—Chevron, Apple, McDonald’s, or Google—these companies are a web of affiliated entities, each with its own separate legal identity. Yet, corporate laws have failed to develop a statutory scheme that acknowledges these relationships among entities. While corporate personhood, separateness, and the accompanying liability protection are the primary reasons for using the corporate form, or business entities in general, form can be exploited by bad actors who seek to take advantage of the natural legal silos that define each legal entity in a corporate group as a stand-alone person. These …

The Use And Misuse Of Fiduciary Duties: Corporate Social Responsibility And The Standard Of Review, Jonathan R. Povilonis

William & Mary Business Law Review

This Article provides a crucial corrective to the “corporate social responsibility” debate, which concerns whether corporations have the obligation to protect or serve the interests of groups other than their shareholders, like employees or customers (often called “stakeholders”). Scholars on one side of the debate have repeatedly presumed that corporate directors’ fiduciary duties to shareholders play an important role in protecting shareholders from decisions that favor stakeholders at their expense. Scholars on the other side agree that fiduciary duties provide meaningful protection against unfavorable conduct but argue that directors should also owe fiduciary duties to stakeholders so they may be …

Regulatory Competition And State Capacity, Martin W. Sybblis

William & Mary Business Law Review

This Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to …