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Full-Text Articles in Law

Crashing The Boards: A Comparative Analysis Of The Boxing Out Of Women On Boards In The United States And Canada, Diana C. Nicholls Mutter Oct 2019

Crashing The Boards: A Comparative Analysis Of The Boxing Out Of Women On Boards In The United States And Canada, Diana C. Nicholls Mutter

The Journal of Business, Entrepreneurship & the Law

This paper will first provide a critical, comparative look at the Canadian and the federal American responses to the under-representation of women on boards of large, publicly traded corporations. There will be a discussion about the competing conceptions which emerge in addressing the regulation of women on boards in the United States and Canada and why each jurisdiction implemented its policy when it did. The conceptions arising out of questions about under-representation of women on boards tend to fall within two categories: business case rationales and normative rationales. Given the competing conceptions of this issue, this paper will attempt to ...


A New Standard For Governance: Reflections On Worker Representation In The United States, Julian Constain Jan 2019

A New Standard For Governance: Reflections On Worker Representation In The United States, Julian Constain

Fordham Journal of Corporate & Financial Law

The contemporary state of corporate law in the United States is one that is skewed toward the archaic principle of shareholder primacy. This narrow conception of corporate purpose has resulted in governance mechanisms that tend to overlook the many stakeholders that are affected by, and, in turn, affect the bottom line of modern corporations. In the wake of the recently proposed Accountable Capitalism Act, this Note investigates the viability of adopting a system of mandated worker board representation—codetermination—in the United States. The Note employs a comparative analysis of the German and Swedish experiences with codetermination, and then evaluates ...


Corporate Power Is Corporate Purpose Ii: An Encouragement For Future Consideration From Professors Johnson And Millon, Leo E. Strine Jr. Oct 2016

Corporate Power Is Corporate Purpose Ii: An Encouragement For Future Consideration From Professors Johnson And Millon, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

This paper is the second in a series considering the argument that corporate laws that give only rights to stockholders somehow implicitly empower directors to regard other constituencies as equal ends in governance. This piece was written as part of a symposium honoring the outstanding work of Professors Lyman Johnson and David Millon, and it seeks to encourage Professors Johnson and Millon, as proponents of the view that corporations have no duty to make stockholder welfare the end of corporate law, to focus on the reality that corporate power translates into corporate purpose.

Drawing on examples of controlled companies that ...


Poison Pills: Recent Negative Economic Effects Justify Repealing The Related Legislation And Increasing Shareholder Ownership Rights, Wilton Robinson Apr 2016

Poison Pills: Recent Negative Economic Effects Justify Repealing The Related Legislation And Increasing Shareholder Ownership Rights, Wilton Robinson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


Disciplining Corporate Boards And Debtholders Through Targeted Proxy Access, Michelle M. Harner Jan 2016

Disciplining Corporate Boards And Debtholders Through Targeted Proxy Access, Michelle M. Harner

Indiana Law Journal

Corporate directors committed to a failed business strategy or unduly influenced by the company’s debtholders need a dissenting voice—they need shareholder nominees on the board. This Article examines the biases, conflicts, and external factors that impact board decisions, particularly when a company faces financial distress. It challenges the conventional wisdom that debt disciplines management, and it sug-gests that, in certain circumstances, the company would benefit from having the shareholders’ perspective more actively represented on the board. To that end, the Article proposes a bylaw that would give shareholders the ability to nominate direc-tors upon the occurrence of predefined ...


Looking Back And Looking Forward: Sarbanes-Oxley And The Future Of Corporate Governance, Scott Harshbarger, Goutam U. Jois Jul 2015

Looking Back And Looking Forward: Sarbanes-Oxley And The Future Of Corporate Governance, Scott Harshbarger, Goutam U. Jois

Akron Law Review

In this Article, we argue that all groups: business leaders, regulators and shareholders, should recognize the steps that must be taken to create a competitive, fair and ethical corporate climate. We are not calling merely for “voluntary cooperation” from businesses to improve the current situation. Indeed, SOX exists and is appropriate for this situation precisely because it imposes baseline obligations with which corporations are required to comply. Moreover, other regulations regarding independent directors, expensing of stock options, etc. are needed and are vital to keeping business interests in line with society’s. However, business leaders and regulators will have an ...


Can Peltz Score?: What’S Behind The May 13 Dupont Vs. Trian Contest, Lawrence A. Hamermesh May 2015

Can Peltz Score?: What’S Behind The May 13 Dupont Vs. Trian Contest, Lawrence A. Hamermesh

Lawrence A. Hamermesh

No abstract provided.


Boards Of Directors As Mediating Hierarchs, Margaret M. Blair Jan 2015

Boards Of Directors As Mediating Hierarchs, Margaret M. Blair

Seattle University Law Review

In June of 2014, the board of directors of Demoulas Supermarkets, Inc.—better known as Market Basket, a mid-sized chain of grocery stores in New England—decided to oust the man who had been CEO for the previous six years, Arthur T. Demoulas. Most likely, the board of directors did not anticipate what happened next: Thousands of employees, customers, and fans of Market Basket boycotted the stores and staged noisy public protests asking the board to reinstate “Arthur T.” The reaction by employees and customers made what had been a simmering, nasty, intrafamily feud within the closely held Market Basket ...


The Long Road To Reformulating The Understanding Of Directors' Duties: Legalizing Team Production Theory?, Thomas Clarke Jan 2015

The Long Road To Reformulating The Understanding Of Directors' Duties: Legalizing Team Production Theory?, Thomas Clarke

Seattle University Law Review

In this Article, the historical evolution of corporate governance is considered, highlighting the different eras of governance, the dominant theoretical and practical paradigms, and the reformulation of paradigms and counter paradigms. Two alternative and sharply contrasting theorizations, one collective and collaborative (the work of Berle and Means), the other individualistic and contractual (agency theory and shareholder value) are focused upon. The explanatory potential of Blair and Stout’s team production theory is elaborated, along with its conception of the complexity of business enterprise, with a mediating hierarch (the board of directors) securing a balance between the interests of different stakeholders ...


The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker Nov 2014

The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker

The Journal of Business, Entrepreneurship & the Law

One of the biggest Delaware Supreme Court cases of 2013 wasn’t. The Delaware Court of Chancery opinion in Boilermakers Local 154 Retirement Fund v. Chevron Corp., upheld the enforceability of Delaware forum selection clause bylaws unilaterally adopted by corporate boards of directors. It was widely expected that the Delaware Supreme Court would uphold the Court of Chancery’s opinion. However, Plaintiffs dismissed their appeal and moved to dismiss their remaining claims in the Court of Chancery, leaving intact Chancellor Strine’s strong support of forum selection clauses. National Industries Group (Holding) v. Carlyle Investment Managements L.L.C. and ...


Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman Jul 2014

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Since 1978, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. The NACD has grown from a mere realization of the importance of corporate governance to become the only national membership organization created by and for corporate directors ...


Stewardship In The Interests Of Systemic Stakeholders: Re-Conceptualizing The Means And Ends Of Anglo-American Corporate Governance In The Wake Of The Global Financial Crisis, Zhong Xing Tan Jan 2014

Stewardship In The Interests Of Systemic Stakeholders: Re-Conceptualizing The Means And Ends Of Anglo-American Corporate Governance In The Wake Of The Global Financial Crisis, Zhong Xing Tan

Journal of Business & Technology Law

No abstract provided.


What Went Wrong: Prudent Management Of Endowment Funds And Imprudent Endowment Investing Policies, James J. Fishman Jan 2014

What Went Wrong: Prudent Management Of Endowment Funds And Imprudent Endowment Investing Policies, James J. Fishman

Pace Law Faculty Publications

Most colleges and universities of all sizes have an endowment, a fund that provides a stream of income and maintains the corpus of the fund in perpetuity. Organizations with large endowments, such as colleges, universities, and private foundations, all finance a significant part of their operations through the return received from the investment of this capital. This article examines the legal framework for endowment investing, endowment investing policies, their evolution to more sophisticated and riskier strategies, and the consequences evinced during the financial crisis of 2008 and beyond. It traces the approaches to endowment investing and chronicles the rise and ...


Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman Jul 2013

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership ...


Corporate Culture And Erm, Michelle M. Harner Jul 2013

Corporate Culture And Erm, Michelle M. Harner

Michelle M. Harner

The attitudes and actions of those viewed as leaders within a company (commonly referred to as “tone at the top”) help to define corporate culture and are critical to implementing a successful enterprise risk management (ERM) program. This paper explores the challenges and benefits of creating a risk-aware corporate culture, including the potential legal implications for boards of directors.


Corporate Culture And Erm, Michelle M. Harner Jul 2013

Corporate Culture And Erm, Michelle M. Harner

Faculty Scholarship

The attitudes and actions of those viewed as leaders within a company (commonly referred to as “tone at the top”) help to define corporate culture and are critical to implementing a successful enterprise risk management (ERM) program. This paper explores the challenges and benefits of creating a risk-aware corporate culture, including the potential legal implications for boards of directors.


When The Government Attempts To Change The Board, Investors Should Know, William O. Fisher Apr 2013

When The Government Attempts To Change The Board, Investors Should Know, William O. Fisher

Pepperdine Law Review

In 2008 and 2009, the federal government effectively hired and fired directors at American International Group and Bank of America, without any securities filing of the sort that would have been required had a private market actor attempted to change the boards at those companies. The fact that current law allows the government to secretly reconstitute the governing bodies of multibillion-dollar, publicly traded companies is cause for concern, for who controls the board controls the company. This Article argues that, just as securities filings alert investors when private parties attempt board change, a new required filing should inform investors when ...


Eliminating The Executive Overcompensation Problem: How The Sec And Congress Have Failed And Why The Shareholders Can Prevail, Blake H. Crawford Jan 2012

Eliminating The Executive Overcompensation Problem: How The Sec And Congress Have Failed And Why The Shareholders Can Prevail, Blake H. Crawford

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine Jan 2012

Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine

Catholic University Law Review

No abstract provided.


To Be Or Not To Be Both Ceo And Board Chair, Thuy-Nga T. Vo Jan 2010

To Be Or Not To Be Both Ceo And Board Chair, Thuy-Nga T. Vo

Faculty Scholarship

Part I of this article discusses the management and monitoring responsibilities of the board of directors. Part II explores the duality governance structure and its prevalence in corporate America. In Part III, the article examines and weighs the theoretical arguments for and against duality. Based on these arguments, this part assesses the impact of combined or separate CEO and Chair positions on the board’s performance of its management and monitoring responsibilities. Part IV turns to the empirical data on the effect of combined, rather than separate, CEO-Chair roles on corporate performance. Part V explains the views of corporate stakeholders ...


The Story Of Hewlett-Packard, Barbara Black Jan 2009

The Story Of Hewlett-Packard, Barbara Black

Faculty Articles and Other Publications

With the development of the modern corporation, corporate boards have been the locus of corporate authority, and particularly since the 1980s, boards and their performance have been under intense scrutiny. Nevertheless, corporate law has not developed a consistent theory for what boards are supposed to do; instead, it sends mixed messages about the functions and expectations of boards and the appropriate people to sit on them. The HP saga illustrates some of the dilemmas faced by directors confronted by these competing pressures.


Unconscious Bias And The Limits Of Director Independence, Antony Page Jan 2009

Unconscious Bias And The Limits Of Director Independence, Antony Page

Faculty Publications

Corporate directors make difficult decisions: How much should we pay our CEO? Should we permit a lawsuit against a fellow director? Should we sell the company? Directors are legally obligated to decide in good faith based on the business merits of the issue rather than extraneous considerations and influences. Naturally, some directors may have preferences, or even biases: Our CEO, my colleague and friend, deserves a lot; The company should not sue my fellow board member; We should not sell, because after all, I would like to remain a board member. But the courts presume that independent directors either do ...


An Overview Of Brazilian Corporate Governance, Bernard S. Black, Antonio Gledson De Carvalho, Érica Gorga Jul 2008

An Overview Of Brazilian Corporate Governance, Bernard S. Black, Antonio Gledson De Carvalho, Érica Gorga

Cornell Law Faculty Publications

We provide the first detailed picture of firm-level corporate governance practices in an emerging market. We report on the corporate governance practices of Brazilian public companies, based primarily on an extensive 2005 survey of 116 companies. Most firms have a controlling shareholder or group. Board independence is an area of weakness. The boards of most Brazilian private firms are comprised entirely or almost entirely of insiders or representatives of the controlling family or group. Many firms have no independent directors. Financial disclosure is a second area of weakness. Only a minority of firms provide a statement of cash flows or ...


The Fetishization Of Independence, Usha Rodrigues Jan 2008

The Fetishization Of Independence, Usha Rodrigues

Scholarly Works

According to conventional wisdom, a supermajority independent board of directors is the ideal corporate governance structure. Debate nevertheless continues: empirical evidence suggests that independent boards do not improve firm performance. Independence proponents respond that past studies reflect a flawed definition of independence.

Remarkably, neither side in the independence debate has looked to Delaware, the preeminent state source for corporate law. Comparing Delaware's notions of independence with those of Sarbanes-Oxley and its attendant reforms reveals two fundamentally different conceptions of independence. Sarbanes-Oxley equates independence with outsider status. An independent director is one who lacks financial ties to the corporation and ...


The Duty To Creditors Reconsidered - Filling A Much Needed Gap In Corporation Law, Richard A. Booth Jan 2007

The Duty To Creditors Reconsidered - Filling A Much Needed Gap In Corporation Law, Richard A. Booth

Faculty Scholarship

The most fundamental question of corporation law is to whom does the board of directors of a corporation owe its fiduciary duty. Recently, the question has tended to be whether and under what circumstances the board of directors has the duty to maximize stockholder wealth. But if a corporation is insolvent (or close to it), business decisions designed to maximize stockholder wealth may result in a reduction of creditor wealth. Although the conventional wisdom is that creditors must protect themselves by contractual means, there is a substantial body of case law that says that creditors can assert claims sounding in ...


Director Compliance With Elusive Fiduciary Duties In A Climate Of Corporate Governance Reform, Nadelle Grossman Jan 2007

Director Compliance With Elusive Fiduciary Duties In A Climate Of Corporate Governance Reform, Nadelle Grossman

Fordham Journal of Corporate & Financial Law

No abstract provided.


Compensation Representatives: A Prudent Solution To Excessive Ceo Pay, Lawton W. Hawkins Aug 2006

Compensation Representatives: A Prudent Solution To Excessive Ceo Pay, Lawton W. Hawkins

ExpressO

Currently, CEO pay is determined by a company’s board of directors, subject to limited shareholder approval in certain circumstances. However, as Lucian Bebchuk and Jesse Fried have demonstrated, boards of directors and CEOs do not necessarily engage in real arms length bargaining over CEO pay. Instead, CEOs may exert managerial power to extract economic rents above and beyond what they could have obtained in an arms length negotiation. To address the problem, Bebchuk and Fried have proposed that large shareholders be allowed to nominate candidates for the board, and that companies be required to pay the expenses for any ...


Slides: Community Forest Project: Grand Lake Stream, Maine, Steve Keith Jun 2005

Slides: Community Forest Project: Grand Lake Stream, Maine, Steve Keith

Community-Owned Forests: Possibilities, Experiences, and Lessons Learned (June 16-19)

Presenter: Steve Keith, Farm Cove Community Forest, Downeast, ME

62 slides


Keynote Address, Susan S. Bies, Alan Rechtschaffen Jan 2003

Keynote Address, Susan S. Bies, Alan Rechtschaffen

Fordham Journal of Corporate & Financial Law

No abstract provided.


Dual Identities And Dueling Obligations: Preserving Independence In Corporate Representation, Susanna K. Ripken Dec 2000

Dual Identities And Dueling Obligations: Preserving Independence In Corporate Representation, Susanna K. Ripken

Susanna K. Ripken

Under the Model Rules of Professional Responsibility, lawyers for corporate entities must regard the organization itself as the client. Because the corporate client can act only through its authorized constituents, including officers, directors, and employees, the lawyer for the corporation typically looks to the authorized managers of the corporation to speak on behalf of the client. When the interests of the managers and the corporations diverge, however, the lawyer must seek out the highest authority in the organization to provide the appropriate guidance. As a general matter, the board of directors acts as the highest authority within the corporation. One ...