Law Commons^™

Corporate Natural Law: The Dominance Of Justice In A Codified World, Stuart R. Cohn

Stuart R. Cohn

One tends to think of corporate law as quite formalistic, bound by corporate statutes, articles of incorporation, bylaws, and customary rules of commercial conduct. While many aspects of corporate law are indeed so rule-bound, the truth is that the major issues facing directors, officers and shareholders, ranging from fiduciary duties to minority rights, are generally determined by much more amorphous principles of equity. Hence the notion of “corporate natural law.”

Are "Legal" Marijuana Contracts "Illegal"?, Luke M. Scheuer

Luke M Scheuer

The Value Of Soft Variables In Corporate Reorganizations, Michelle M. Harner

Michelle M. Harner

When a company is worth more as a going concern than on a liquidation basis, what creates that additional value? Is it the people, management decisions, the simple synergies of the operating business, or some combination of these types of soft variables? And perhaps more importantly, who owns or has an interest in these soft variables? This article explores these questions under existing legal doctrine and practice norms. Specifically, it discusses the characterization of soft variables under applicable law and in financing documents, and it surveys related judicial decisions. It also considers the overarching public policy and Constitutional implications of …

Deal Deconstructions, Case Studies, And Case Simulations: Toward Practice Readiness With New Pedagogies In Teaching Business And Transactional Law, Michelle M. Harner, Robert J. Rhee

Michelle M. Harner

In this short commentary, we explore the use of two interrelated pedagogical methods for teaching transactional and business law. The first method is deal deconstruction, which analyzes the set of final deal documents and outcomes. This method is backward-looking, conducting a post-mortem on business transactions and analyzing the parties’ choices memorialized in the agreement against the legal and financial alternatives. The second method involves case studies and simulations, which are commonly seen in business schools. This method is forward-looking, exposing students to the uncertainties and situational contexts of doing deals and deal-related litigation. Together, these complementary methods help students understand …

A More Realistic Approach To Directors' Duties, Michelle M. Harner

Michelle M. Harner

Expectations for what fiduciary duties can achieve in the corporate context are unrealistic. This segment of the law—and the alleged deficiencies therein—are blamed for corporate scandals, securities fraud, failed business plans, and even a company's insolvency. Risk is, however, inherent in business, and human beings are flawed. Fiduciary duty law cannot change these basic facts. To the extent we think it can, we will continue to be disappointed and frustrated. This essay considers recasting (and to a greater extent codifying) directors’ duties in a positive frame to help foster better director oversight. It does not suggest that codifying greater clarity …

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.

Ignoring The Writing On The Wall: The Role Of Enterprise Risk Management In The Economic Crisis, Michelle M. Harner

Michelle M. Harner

No abstract provided.

The Potential Cost And Value Of Erm, Michelle M. Harner

Michelle M. Harner

The concept of enterprise risk managment (ERM) as a holistic approach to managing a company's risk profile has tremendous appeal. However, companies are frequently skeptical about its value and whether the results will justify the cost, effort, and challenges of implementing a meaningful ERM process. This report considers some of those concerns and highlights the governance, compliance, and cultural value of ERM.

Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, David K. Millon

David K. Millon

None available.

The Impact On Shareholders And Other Constituents, David Millon

David K. Millon

No abstract provided.

Piercing The Corporate Veil, Financial Responsibility, And The Limits Of Limited Liability, David K. Millon

David K. Millon

Veil-piercing is the most heavily litigated issue in corporate law, yet legal doctrine in this area is notoriously incoherent. In this article, I argue that the only way to make sense of veil-piercing is through an accurate understanding of the policy underlying limited liability. Once that is appreciated it then becomes possible to make sense of the appropriate limits on limited liability. Piercing the corporate veil can then serve the useful function of distinguishing legitimate from illegitimate reliance on statutory limited liability. After surveying efficiency rationales for limited liability and finding them unpersuasive, I propose that the best way to …

New Game Plan Or Business As Usual? A Critique Of The Team Production Model Of Corporate Law, David K. Millon

David K. Millon

None available.

The First Antistrust Statute, David K. Millon

David K. Millon

None available.

The Case Beyond Time, Lyman P.Q. Johnson, David K. Millon

David K. Millon

The Delaware Supreme Court's opinion in Paramount Communications, Inc. v. Time, Inc.' treats several important questions that arise in connection with hostile corporate takeovers. At the same time, it leaves three critical issues unanswered. In this article, we first briefly describe what the Time decision did, comparing Chancellor William Allen's somewhat discursive Chancery Court opinion with the more peremptory ruling of the Supreme Court. Next, we identify three unarticulated but potentially far-reaching implications of both the Supreme Court's and Chancellor Allen's reasoning that threaten to destabilize seemingly settled doctrine governing the conduct of target company management.

Recalling Why Corporate Officers Are Fiduciaries, Lyman P.Q. Johnson, David K. Millon

David K. Millon

For all the recent federal attention to regulating - and differentiating - corporate officer and director functions, a curious fact remains: state fiduciary duty law makes no distinction between the fiduciary duties of these two groups. Instead, courts and commentators routinely describe the duties of directors and officers together, and in identical terms. To lump officers and directors together as generic fiduciaries with no distinction being made between them, suggests - as patently is not the case - that their institutional function and legal roles within the corporation are the same. Such a view, consequently, undermines efforts more sharply to …

Corporate Takeovers And Corporate Law: Who's In Control?, Lyman P.Q. Johnson, David K. Millon

David K. Millon

No abstract provided.

New Directions In Corporate Law Communitarians, Contractarians, And The Crisis In Corporate Law, David K. Millon

David K. Millon

No abstract provided.

Theories Of The Corporation, David Millon

David K. Millon

No abstract provided.

The Enron Pension Disaster, David K. Millon

David K. Millon

No abstract provided.

Who "Caused" The Enron Debacle?, David K. Millon

David K. Millon

No abstract provided.

Misreading The Williams Act, Lyman P.Q. Johnson, David K. Millon

David K. Millon

No abstract provided.

Enron And The Dark Side Of Worker Ownership, David Millon

David K. Millon

No abstract provided.

Keeping Hope Alive, David K. Millon

David K. Millon

No abstract provided.

Worker Ownership Through 401(K) Retirement Plans: Enron's Cautionary Tale, David Millon

David K. Millon

No abstract provided.

Missing The Point About State Takeover Statutes, Lyman P.Q. Johnson, David K. Millon

David K. Millon

No abstract provided.

State Takeover Laws: A Rebirth Of Corporationlaw?, David K. Millon

David K. Millon

No abstract provided.

The Naked Fiduciary, Michelle M. Harner, Jamie Marincic

Michelle M. Harner

Business law is grounded in the common law of fiduciary duty. Courts and policymakers have been loath to abandon that principle. Yet, particularly in the contractual context of limited liability companies (LLCs), the fiduciary label is illusory and may undercut sound governance practices for those entities. This Article presents an in-depth empirical study about governance provisions included in LLC operating agreements and examines the implications of the data in the context of various types of businesses that might choose to organize as LLCs. The Article uses the data and related case studies to offer a new approach to LLC governance …

Mitigating Financial Risk For Small Business Entrepreneurs, Michelle M. Harner

Michelle M. Harner

Financial distress by definition threatens a company’s viability. Entrepreneurial and start-up entities are particularly vulnerable to this threat. Yet, much of the discussion following the recent recession focuses almost exclusively on financial institutions and “too-big-to-fail” entities. This essay re-examines lessons gleaned from the recession in the context of smaller, entrepreneurial entities. Specifically, it analyzes how small business entrepreneurs might invoke principles of enterprise risk management to mitigate the long-term impact of financial distress on their business models. It also considers related refinements to extant small business regulations, including the U.S. bankruptcy laws. The essay’s primary objective is to help policymakers, …

The Potential Value Of Dynamic Tension In Restructuring Negotiations, Michelle M. Harner, Jamie Marincic

Michelle M. Harner

No abstract provided.

Activist Distressed Debtholders: The New Barbarians At The Gate?, Michelle M. Harner

Michelle M. Harner

The term “corporate raiders” previously struck fear in the hearts of corporate boards and management teams. It generally refers to investors who target undervalued, cash-flush or mismanaged companies and initiate a hostile takeover of the company. Corporate raiders earned their name in part because of their focus on value extraction, which could entail dismantling a company and selling off its crown jewels. Today, the term often conjures up images of Michael Milken, Henry Kravis or the movie character Gordon Gekko, but the alleged threat posed to companies by corporate raiders is less prevalent—at least with respect to the traditional use …