Law Commons^™

A Crowning Achievement In Protecting High Ranking Officials From Unreasonable Depositions: The Impact Of The Crown Central Test, Scott A. Mager

scott a mager

In an increasingly litigious society, the attempt to first set depositions of high-ranking corporate executives, who are often referred to as “apex officials,” has become commonplace. While these executives rarely have personal knowledge of the facts and issues surrounding a given case, broad-stroked claims against parent companies and lax discovery rules seem to serve as a launching pad to harass executives and extort settlements through threats of—and in many cases the actual taking of—depositions from chief executive officers, chief operating officers, chief financial officers, or other apex executives. In recent years, courts across the country have sought to articulate the …

Bankruptcy Veil Piercing, Nicholas L. Georgakopoulos

Nicholas L Georgakopoulos

The paper examines explanations of the relative frequency of contract piercing litigation. Tort piercing likely is rare because it is displaced by product and vicarious liability. Alternatively, contract piercing may be frequent because failing subsidiaries generate contract piercing. Examining the insolvency of subsidiaries by forming a bankruptcy sample, three phenomena appear (besides that intentional torts between strangers disappear). (i) The majority of tort claims argue fiduciary breach, which is very rare outside of bankruptcy. (ii) Fraud piercing reaches 100%. (iii) Contract piercing is dominated by attempts to pierce others’ veils rather than the debtors.’ The latter phenomenon may correspond to …

Commercial Speech And The History Of The First Amendment: Just What Were Those Founders Thinking?, Laura Beckerman

Laura Beckerman

In the battle over government regulation of advertising, the originalist narrative has emerged as a potent argument. This narrative claims that governmental attempts to regulate advertising violate the First Amendment and fly in the face of the original intent of the founders of our nation. This narrative has been cited by influential figures, including Supreme Court Justice Clarence Thomas, in an effort to delegitimize governmental regulation of advertising. It adds a difficult-to-penetrate sheen of protection to commercial speech—the original intent of the founders and authors of the First Amendment.

There is just one problem with this argument. As a historical …

To Be, Rather Than To Seem: Analysis Of Trustee Fiduciary Duty In Reorganization And Its Implications On The New Chinese Bankruptcy Law, Xiao-Chuan Charlie Weng

Xiao-chuan Charlie Weng

Reorganization trustees play a crucial role in bankruptcy procedure. The trustees try to resurrect deteriorating businesses by managing remaining resources for the benefit of beneficiaries, usually unsecured creditors and shareholders. More or less, a trustee’s role is similar to that of the officers/managers of a solvent company. Fiduciary duty arises between the residual claimers, the stakeholders on the one hand, and the operator, the trustee on the other hand. Astonishingly, under current U.S. bankruptcy law, reorganization trustee’s fiduciary duty is not well defined, although this duty has been widely litigated. The vagueness is primarily due to misinterpretation of the Mosser …

To Be, Rather Than To Seem: Analysis Of Trustee Fiduciary Duty In Reorganization And Its Implications On The New Chinese Bankruptcy Law, Xiao-Chuan Charlie Weng

Xiao-chuan Charlie Weng

Reorganization trustees play a crucial role in bankruptcy procedure. The trustees try to resurrect deteriorating businesses by managing remaining resources for the benefit of beneficiaries, usually unsecured creditors and shareholders. More or less, a trustee’s role is similar to that of the officers/managers of a solvent company. Fiduciary duty arises between the residual claimers, the stakeholders on the one hand, and the operator, the trustee on the other hand. Astonishingly, under current U.S. bankruptcy law, reorganization trustee’s fiduciary duty is not well defined, although this duty has been widely litigated. The vagueness is primarily due to misinterpretation of the Mosser …

Duties And Liabilities Of Corporate Managers Under Argentine Law, Martin Eugenio Abdala Prof. Dr.

Prof. Dr. Martin Eugenio Abdala

Every individual participates on the commercial traffic, concluding daily different contracts and incurring in many duties, most of which are satisfied correctly on time and form. However, in the cycle from the birth to the extinction of those obligations, it often appears some vicissitudes such as retardation, delay and default. The duties of corporate managers, as a species of that obligation genre, might be obviously affected by such vicissitudes. In Argentine Law the situations of retardation and delay are solved with many tools that come mainly from the Ley de Sociedades Comerciales (Corporation Act). The cases in which there is …

Reconsidering Arbitration: Evaluating The Future Of The Manifest Disregard Doctrine, Griffin Toronjo Pivateau

Griffin Toronjo Pivateau

In a recent decision, the Supreme Court indicated that parties may now have fewer rights to appeal arbitration awards. In Hall Street v. Mattel, Inc., the Court found that parties to an arbitration agreement could not supplement, by contract, the statutory grounds for challenging an arbitration award. Unfortunately, the Court called into doubt a long line of cases holding that a party could seek to vacate an arbitration decision where the arbitrator exhibited a manifest disregard for the law. Until the Hall Street decision, the manifest disregard doctrine enjoyed widespread acceptance. Appellate courts from every circuit have used the manifest …

Overseeing Controlling Shareholders: Do Independent Directors Constrain Tunneling In Taiwan?, Yu-Hsin Lin

Yu-Hsin Lin

One of the most important challenges to modern corporate governance is to constrain controlling shareholder from tunneling corporate resources at a cost to non-controlling shareholders. Related party transactions (RPTs) have been proved by empirical studies as a major channel for tunneling. OECD has also stressed the challenge of abusive RPTs to Asian corporate governance. This paper serves an initial attempt to empirically assess the extent to which independent directors in Taiwan constrain tunneling. Taiwan serves as an appropriate jurisdiction for research in that private benefits agency problem is prevalent among Taiwanese public companies and that independent directors were newly introduced …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

Trusts As Institutions In China’S Financial Markets, Eric Linge

Eric Linge

China passed a law of trusts in 2001 intending it to be useful in financial markets. Drawing heavily from literature on economic institutions and economic development, I assess the potential success of the trust’s becoming an institution in China. The conclusion is that a legislature’s passing of a trust law does not make the trust an institution. Institutions are created once they are able to predictably incentivize and constrain behavior. China’s legal system does not generally provide predictability, and ultimately this limits the trust’s ability to develop into an institution.