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Full-Text Articles in Law

Let’S Shake On It: Perceived Pre-Contractual Risk In Cross-Border Investment, Kevin J. Fandl Jd, Phd Apr 2019

Let’S Shake On It: Perceived Pre-Contractual Risk In Cross-Border Investment, Kevin J. Fandl Jd, Phd

University of Miami Business Law Review

This article asks whether a legal system that provides protection for commitments made prior to contract formation is more or less conducive to risk-taking by foreign investors than a legal system that does not. I surmise that increased levels of protection for precontractual commitments establish an environment more hospitable to new business development, giving potential entrepreneurs added security in their ventures. And I further surmise that different legal traditions provide different levels of protection for these pre-contractual commitments.

To better understand the risks faced by cross-border business investors, this article describes the key distinctions between legal systems that create potential ...


The Final Rule: A Call For Congressional Action To Return The Flsa And The Middle Class To Its Former Glory, Ashley Singrossi May 2018

The Final Rule: A Call For Congressional Action To Return The Flsa And The Middle Class To Its Former Glory, Ashley Singrossi

University of Miami Business Law Review

2017 was full of change in America. But not for the middle class. The middle class remained stagnant, if not shrinking—as it has been for decades. Many scholars and economists theorize why the class that is the backbone of America—that once flourished as the beacon of hope for hard–working people around the world—has steadily declined over the past few decades. The answer lies in labor regulation. Federal labor regulations helped build America’s robust middle class. But those regulations are outdated and ineffective. If we want to see the middle class restored to its prosperity, and ...


Whistling In The Wind: Why Federal Whistleblower Protections Fall Short Of Their Corporate Governance Goals, Meera Khan May 2018

Whistling In The Wind: Why Federal Whistleblower Protections Fall Short Of Their Corporate Governance Goals, Meera Khan

University of Miami Business Law Review

Teetering on the line between hero and villain, whistleblowers have a remarkably unusual role in contemporary American society. Those who blow the whistle on public sector activities, like Edward Snowden and the Watergate Scandal’s “Deep Throat”, are often vilified in history as treasonous and unprincipled rogues. In the private sector, however, whistleblowers are seen as moral compasses for corporate behavior, and are even afforded federal protections for speaking out against internal malfeasance. The piecemeal evolution of whistleblower legislation including the Sarbanes–Oxley Act of 2002 and the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 created ...


Setting Sail To Cuba: Analyzing The Recent Introduction Of Cruise Lines And The Impact On American Tourist Freedoms, Alessandria San Roman May 2018

Setting Sail To Cuba: Analyzing The Recent Introduction Of Cruise Lines And The Impact On American Tourist Freedoms, Alessandria San Roman

University of Miami Business Law Review

After President Obama’s announcement in early 2015 of increased relations with the Cuban government despite the existing Cuban embargo under the Helms–Burton Act and the Cuban Democracy Act, Carnival Cruise line made history in July of 2015 when it became the first United States cruise line to receive approval from both the United States Department of Treasury and the United States Department of Commerce to offer cruises to Cuba. Since its introduction, there has been wide increase in Cuba’s tourism industry. However, Cuban regulations still regulate where and how cruise lines can travel. The increased relations are ...


Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee Apr 2018

Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee

University of Miami Business Law Review

In recent years, the federal courts’ analysis of the competitive effects of conduct challenged under the Sherman Act’s rule of reason, which generally includes market definition as a critical step, has been properly guided by sensitivity to business reality and sound economic analysis of the conduct at issue. When it comes to two–sided platforms, the courts should adhere to that same flexible but principled approach and avoid rigid alternatives that would apply regardless of the platform, conduct, or fact–pattern.

In Ohio v. American Express Co., (Case No. 16–1454), now before the U.S. Supreme Court, the ...


Market Power And American Express, John B. Kirkwood Apr 2018

Market Power And American Express, John B. Kirkwood

University of Miami Business Law Review

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express ...


Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro Apr 2018

Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro

University of Miami Business Law Review

The Department of Justice’s theory of liability in its case attacking the non–discrimination provisions in American Express’s merchant contracts contends that point–of–sale competition on the price of making a purchase with a credit card is an instrument creating economic efficiency. That is, the economy would run more efficiently, and consumers would be better off, if merchants were free to charge variable prices for different types of credit cards. After all, charging different prices for using different types of payment mechanisms appears to be just another form of presumptively positive price competition.

The Second Circuit rejected ...


Breaking Up Is Hard To Do: Developments In Partitioning Real And Personal Property In Marital, Business, And Personal Relationships In Florida Jurisprudence, Harry M. Hipler Jun 2016

Breaking Up Is Hard To Do: Developments In Partitioning Real And Personal Property In Marital, Business, And Personal Relationships In Florida Jurisprudence, Harry M. Hipler

University of Miami Business Law Review

This article focuses on partition of real and personal property in Florida in the 21st century. It discusses questions and issues about partitioning real and personal property, so that private lawyers who practice in a variety of areas can familiarize themselves with how partition proceedings work. Partition of real and personal property is not restricted to one area of the law. Instead, it relates to and bleeds over into a multitude of areas of the law making it necessary for all practitioners to be familiar with the area of partition. Partition is now provided in all 50 states, and Florida ...


Follow The Money: A Discussion Of The Organisation For Economic Co-Operation And Development’S Base Erosion And Profit Shifting Project: Has The Us Taken Steps To Adopt A Global Solution To This Worldwide Problem?, Claire Arritola Jan 2016

Follow The Money: A Discussion Of The Organisation For Economic Co-Operation And Development’S Base Erosion And Profit Shifting Project: Has The Us Taken Steps To Adopt A Global Solution To This Worldwide Problem?, Claire Arritola

University of Miami Business Law Review

This article looks at the recent actions taken by the Organisation for Economic Co-operation and Development (OECD) to prevent hybrid mismatches and tax base erosion. These actions have come in the form of the “Action Plan for Base Erosion and Profits” (BEPS). BEPS has spanned from 2013 to 2015 and has been the collaborative effort of representatives from 34 countries (with much help from the G-20 countries) as well as input from other non-member countries. Through this project, the OECD seeks to eradicate the problems caused by the current corporate tax structure and the tendency of countries to choose country-specific ...


Export Control Proliferation: The Effects Of United States Governmental Export Control Regulations On Small Businesses—Requisite Market Share Loss; A Remodeling Approach, Jared A. Borocz-Cohen Oct 2014

Export Control Proliferation: The Effects Of United States Governmental Export Control Regulations On Small Businesses—Requisite Market Share Loss; A Remodeling Approach, Jared A. Borocz-Cohen

University of Miami Business Law Review

Made in the USA. This phrase, stamped on the bottom of many domestic items, is becoming increasingly difficult to find abroad. The United States government, of course, regulates almost every good manufactured in America. The obvious federal regulations encompass topics such as, but not limited to, consumer safety, durability, and warranty. However, perhaps the most important of these regulations are those aimed at national security. Federal regulations concerning national security is the junction at which export controls come into play. The central goal of export controls in the United States, and globally, is to promote security. The main issue this ...


Corporate Tort Liability Under The Alien Tort Statute Post-Kiobel, Scott E. Allbright Jr. Jul 2013

Corporate Tort Liability Under The Alien Tort Statute Post-Kiobel, Scott E. Allbright Jr.

University of Miami Business Law Review

No abstract provided.


“Package Deal”: The Curious Relationship Between Fiduciary Duties And The Implied Covenant Of Good Faith And Fair Dealing In Delaware Limited Liability Companies, Monica E. White Apr 2013

“Package Deal”: The Curious Relationship Between Fiduciary Duties And The Implied Covenant Of Good Faith And Fair Dealing In Delaware Limited Liability Companies, Monica E. White

University of Miami Business Law Review

Since 1977, the popularity of the limited liability company (“LLC”) has grown tremendously, overtaking the corporation and the partnership as the preferred business structure in many jurisdictions. Amidst this growth in popularity, a legal debate has sparked concerning the existence, nature, and extent of the fiduciary and contractual duties owed in the LLC context.

Drafters of LLC agreements can adjust fiduciary “norms” through limitation or, in certain jurisdictions like Delaware, through complete elimination of fiduciary duties. However, the implied contractual covenant of good faith and fair dealing (the “Implied Covenant” or the “Covenant”) remains and cannot be waived by the ...


“Comply Or Explain”—A Flexible Mechanism To Countervail Behavioral Biases In M&A Transactions, Gerrit M. Beckhaus Apr 2013

“Comply Or Explain”—A Flexible Mechanism To Countervail Behavioral Biases In M&A Transactions, Gerrit M. Beckhaus

University of Miami Business Law Review

Mergers and acquisitions (M&A) are a common phenomenon of great importance in today’s business world. However, the majority of them fail to achieve the aspired objectives. These failures can be attributed to various circumstances, inter alia decision-makers’ vulnerability to behavioral biases due to the complexity, uncertainty, and time pressure characteristic of M&A transactions. Such biases often lead to predictable irrational behavior resulting in momentous misjudgments. Despite numerous psychological studies proving that people systematically tend to make irrational decisions under uncertainty, neither the transactional practice nor its current legal framework address this problem. Instead, the present law shields ...


The Shocking Impact Of Corporate Scandal On Directors' And Officers' Liability, Nancy R. Mansfield, Joan T.A. Gabel, Kathleen A. Mccullough, Stephen G. Fier Jul 2012

The Shocking Impact Of Corporate Scandal On Directors' And Officers' Liability, Nancy R. Mansfield, Joan T.A. Gabel, Kathleen A. Mccullough, Stephen G. Fier

University of Miami Business Law Review

Directors and officers liability (hereinafter D&O) serves as a deterrent to corporate wrongdoing. Recent cycles of corporate scandal have impacted the tools used to manage the risk that D&O liability creates. The impact of these scandals is a "shock," which is a sudden event that alters the market profoundly. Market alteration has counter intuitively resulted in increased availability of D&O insurance at a lower price, despite an increase in D&O liability. With increased D&O coverage offerings at lower costs, the market has become soft, making coverage readily available. Carriers are competing for insureds and there ...


Ending The Silence: Shareholder Derivative Suits And Amending The Dodd-Frank Act So "Say On Pay" Votes May Be Heard In The Boardroom, William Alan Nelson Ii Jul 2012

Ending The Silence: Shareholder Derivative Suits And Amending The Dodd-Frank Act So "Say On Pay" Votes May Be Heard In The Boardroom, William Alan Nelson Ii

University of Miami Business Law Review

No abstract provided.


For A Few Dollars Less: Explaining State To State Variation In Limited Liability Company Popularity, Daniel M. Häusermann Jan 2012

For A Few Dollars Less: Explaining State To State Variation In Limited Liability Company Popularity, Daniel M. Häusermann

University of Miami Business Law Review

The limited liability company (LLC) is a much more popular business entity in some U.S. states than in others. This empirical study provides the first detailed analysis of this phenomenon.

I find that formation fees, rather than taxes or substantive rules or anything else, explain the variation in LLC popularity best. Differentials between the fees for organizing an LLC and the fees for organizing a corporation explain 17% to 28% of the state-to-state variation in LLC popularity. These formation fee differentials are not very big, but they are highly visible at the moment the business entity is formed. In ...