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Articles 1 - 24 of 24
Full-Text Articles in Law
Paper Dragon Thieves, J.S. Nelson
Paper Dragon Thieves, J.S. Nelson
J.S. Nelson
Developments in the law are making the corporate form more opaque and allowing the agents who animate it to escape individual accountability for their actions. The law now provides protection for agents to engage in widespread frauds that inflict massive harm on the public. This article challenges the academic orthodoxy that shareholder and director liability are enough to control agent behavior by developing a paper dragon analogy to focus on the importance of agents in corporate animation. Lack of agent accountability encourages the patterns of fraud that caused the financial crisis in which forty-five percent of the world’s wealth disappeared, …
Aom Aat Law Symposium Proposal (Final).Pdf, Adam J. Sulkowski, Constance E. Bagley, J.S. Nelson, Waddock S., Paul Shrivastava, Inara K. Scott
Aom Aat Law Symposium Proposal (Final).Pdf, Adam J. Sulkowski, Constance E. Bagley, J.S. Nelson, Waddock S., Paul Shrivastava, Inara K. Scott
J.S. Nelson
Law undergirds the capitalist system and is “at the interface” of business and social relationships
but remains largely walled off from many traditional approaches to management education,
scholarship, and practice. Although a simple definition of law is “enforceable rules between
individuals and individuals and society,” law is also amedium bywhich relationships among and
obligations between management and internal and external stakeholders are negotiated and
formalized. Law can also drive (or impede) innovation by creating new rights (or burdening new
business models with undue regulation) and promote (or prevent) social change by setting the
boundaries for acceptable corporate actions. Legal rules …
Josephine Sandler Nelson On Volkswagen, J.S. Nelson
Fumigating The Criminal Bug: New Research On The Insulation Of Volkswagen’S Middle Management, J.S. Nelson
Fumigating The Criminal Bug: New Research On The Insulation Of Volkswagen’S Middle Management, J.S. Nelson
J.S. Nelson
New headlines each day reveal wide-spread misconduct and large-scale cheating at top international companies: Volkswagen’s emissions-defeat devices installed on over eleven million cars trace back to a manager’s PowerPoint from as early as 2006. Mitsubishi admits that it has been cheating on emissions standards for the eK and Dayz model cars for the past 25 years—even after a similar scandal almost wiped out the company 15 years ago. Takata’s US $70 million fine for covering up its exploding air bags in Honda, Ford, and other car brands could soon jump to US $200 million if a current …
The Criminal Bug: Volkswagen's Middle Management, J.S. Nelson
The Criminal Bug: Volkswagen's Middle Management, J.S. Nelson
J.S. Nelson
Not only does the 2015-16 Volkswagen emissions cheating scandal have the potential to destroy a $227 billion-dollar multinational company, but it contains eerie echoes of other recent white collar scandals that have claimed lives and cost the public trillions of dollars. Through a case study of Volkswagen, this Essay pioneers a new way to look at these scandals by focusing on their common element: the growing insulation and entrenchment of middle management to coordinate such large-scale wrongdoing.
The Corporate Shell Game, J.S. Nelson
The Corporate Shell Game, J.S. Nelson
J.S. Nelson
This Article identifies for the first time the hardening of the corporate shell. It provides compelling evidence that shell-hardening pushes and disguises the way that corporations and agents commit large-scale wrongdoing, and it traces the contributing legal streams that protect the agents who engage in this behavior. The only way to combat widespread frauds that inflict damage on the public is for the corporate shell to be-come less opaque.
The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson
J.S. Nelson
The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.
This vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in …
The Corporate Conspiracy Vacuum Presentation, J.S. Nelson
The Corporate Conspiracy Vacuum Presentation, J.S. Nelson
J.S. Nelson
This is a presentation on my Corporate Conspiracy Vacuum article.
The Corporate Shell Game Presentation, J.S. Nelson
The Corporate Shell Game Presentation, J.S. Nelson
J.S. Nelson
This presentation on The Corporate Shell Game identifies for the first time the hardening of the corporate shell. It provides compelling evidence that shell-hardening pushes and disguises the way that corporations and agents commit large-scale wrongdoing, and it traces the contributing legal streams that protect the agents who engage in this behavior. The only way to combat widespread frauds that inflict damage on the public is for the corporate shell to become less opaque.
The Intracorporate Conspiracy Trap (Formerly "Perverse Incentives And Corporate Conspiracy: Why We Are Asking The Wrong Basic Question In Assessing Liability For Corporations And Their Agents"), J.S. Nelson
J.S. Nelson
In the recent case of Commonwealth v. Lynn, Pennsylvania prosecuted a Roman Catholic priest who had not abused children himself but who, to protect the archdiocese that employed him, covered up information about priests who had abused children and reassigned the priests to new parishes. This case was the first of its kind to bring criminal charges against an official of the Church solely for how he supervised the careers of priests to protect his employer.
Because the intracorporate conspiracy doctrine prohibits it, the state—as is now typical of both state and federal jurisdictions around the country—was unable to prosecute …
The Ethical Slide, Train Tickets, And Helping The Next Generation Of Corporate Leaders To Choose Differently, J.S. Nelson
The Ethical Slide, Train Tickets, And Helping The Next Generation Of Corporate Leaders To Choose Differently, J.S. Nelson
J.S. Nelson
It has been a pleasure to guest-blog for the last two weeks here at the Glom. (Previous posts available here: one, two, three, four, five, six, seven, eight, and nine.) This final post will introduce the book that Lynn Stout and I propose writing to give better direction to business people in search of ethical outcomes and to support the teaching of ethics in business schools.
Sometimes bad ethical behavior is simply the result of making obviously poor decisions. Consider the very human case of Jonathan Burrows, the former …
The Intracorporate Conspiracy Doctrine And D&O Litigation Incentives, J.S. Nelson
The Intracorporate Conspiracy Doctrine And D&O Litigation Incentives, J.S. Nelson
J.S. Nelson
My previous blogposts (one, two, three, four, five, six, seven, and eight) discussed the dangers of granting intracorporate conspiracy immunity to agents who commit coordinated wrongdoing within an organization. The last two blogposts (here and here) highlighted the harm that public and judicial frustration with this immunity inflicts on alternative doctrines.
In addition to exacerbating blind CEO turnover, substituting alternative doctrines for prosecuting intracorporate conspiracy affects an executive’s incentives under Director’s and Officer’s (D&O) liability insurance. This post builds on arguments that I have made about D&O …
The Intracorporate Conspiracy Doctrine And Ceo Turnover, J.S. Nelson
The Intracorporate Conspiracy Doctrine And Ceo Turnover, J.S. Nelson
J.S. Nelson
My previous blogposts (one, two, three, four, five, six, and seven) discussed why conspiracy prosecutions were the best method to penalize coordinated wrongdoing by agents within an organization. Using alternative doctrines to impose liability on behavior that would otherwise be recognized as an intracorporate conspiracy results in flawed incentives and disproportionate awards.
The fundamental problem with substituting responsible corporate officer doctrine and control person liability for reforming the intracorporate conspiracy doctrine is that these alternative doctrines represent exactly what Professor Martin objects to: actual imposition of blind “respondeat superior” liability. …
Frustration With The Intracorporate Conspiracy Doctrine Distorts Other Areas Of Law, J.S. Nelson
Frustration With The Intracorporate Conspiracy Doctrine Distorts Other Areas Of Law, J.S. Nelson
J.S. Nelson
My previous blogposts (one, two, three, four, five, and six) discussed why conspiracy prosecutions should be used to reach coordinated wrongdoing by agents within an organization. The intracorporate conspiracy doctrine has distorted agency law and inappropriately handicaps the ability of tort and criminal law to regulate the behavior of organizations and their agents.
My Intracorporate Conspiracy Trap article argues that the intracorporate conspiracy doctrine is not properly based in agency law, and that it should most certainly not be applied throughout tort law and criminal law. As a result of the immunity granted …
The Silenced Connecticut Sex-Abuse Case, J.S. Nelson
The Silenced Connecticut Sex-Abuse Case, J.S. Nelson
J.S. Nelson
My previous blogposts (one, two, three, four, and five) introduced why conspiracy prosecutions should be used to reach wrongdoing by agents within an organization. The 2012 prosecution of Monsignor Lynn for twelve years of transferring predator priests from parish to parish at the command and for the benefit of the Archdiocese of Philadelphia was defeated by the intracorporate conspiracy doctrine. Moreover, this was not the first time that the Roman Catholic Church had used the doctrine to help its bureaucrats escape liability for suppressing sex abuse cases.
In 1997, employees of the Roman …
How We Should Have Tried Monsignor Lynn, J.S. Nelson
How We Should Have Tried Monsignor Lynn, J.S. Nelson
J.S. Nelson
My previous blogposts (one, two, three, and four) introduced why conspiracy prosecutions should be used to reach wrongdoing by agents within a business organization. The same legal analysis applies to religious organizations.
We should have been able to charge Monsignor Lynn and the Archdiocese of Philadelphia that directed his actions to hide the sexual abuse by priests with criminal conspiracy. Instead, Pennsylvania charged Lynn with two things: child endangerment and conspiracy with the priests.
As international news outlets later reported, Lynn could not be guilty of child endangerment because the state’s statute could …
Sex Abuse, Priests, And Corporate Conspiracy, J.S. Nelson
Sex Abuse, Priests, And Corporate Conspiracy, J.S. Nelson
J.S. Nelson
My previous blogposts (one, two, and three) introduced the topic of how the intracorporate conspiracy doctrine prevents the prosecution of coordinated wrongdoing by individuals within organizations. This post illustrates the doctrine’s effect in the context of a specific organization—here a religious one: the Roman Catholic Archdiocese of Philadelphia and the systematic transfer of predator priests. This post is based on my article The Intracorporate Conspiracy Trap to be published soon in the Cardozo Law Review. The article is available in draft form here.
For twelve years, from 1992 to 2004, as Secretary for Clergy, …
Where Are The Prosecutions For Corporate Conspiracy?, J.S. Nelson
Where Are The Prosecutions For Corporate Conspiracy?, J.S. Nelson
J.S. Nelson
My first and second blogposts introduced why conspiracy prosecutions are particularly important for reaching the coordinated actions of individuals when the elements of wrong-doing may be delegated among members of the group.
So where are the prosecutions for corporate conspiracy??? The Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”, 18 U.S.C.A. §§ 1961 et seq.), no longer applies to most business organizations and their employees. In fact, business organizations working together with outside agents can form new protected “enterprises.”
What’s going on here? In this area and many other parts of the law, we are witnessing the power …
Jpmorgan’S Witness And The Holes In Corporate Criminal Law, J.S. Nelson
Jpmorgan’S Witness And The Holes In Corporate Criminal Law, J.S. Nelson
J.S. Nelson
It is a pleasure to be guest-blogging here at The Glom for the next two weeks. My name is Josephine Nelson, and I am an advisor for the Center for Entrepreneurial Studies at Stanford’s business school. Coming from a business school, I focus on practical applications at the intersection of corporate law and criminal law. I am interested in how legal rules affect ethical decisions within business organizations. Many thanks to Dave Zaring, Gordon Smith, and the other members of The Glom for allowing me to share some work that I have been doing. For easy reading, …
Corporate Conspiracy Charges For The Financial Crisis, J.S. Nelson
Corporate Conspiracy Charges For The Financial Crisis, J.S. Nelson
J.S. Nelson
In my previous blogpost, I granted the merit of defense counsel’s argument that the actions of discrete individual defendants—when the law is not permitted to consider the coordination of those actions—may not satisfy the elements of a prosecutable crime.
But what is the coordination of individuals for a wrongful common purpose? That’s a conspiracy. And, for exactly the reasons that defense counsel articulates, these types of crimes cannot be reached by other forms of prosecution. The U.S. Supreme Court has recognized that conspiracy is its own animal. “[C]ollective criminal agreement—partnership in crime—presents a greater potential threat to the public than individual …
The Conflict Of Interest Inherent In A Corporation Paying For Its Employee’S Counsel: A Better Model For Preventing And Addressing Corporate Crime, Josephine Sandler Nelson
The Conflict Of Interest Inherent In A Corporation Paying For Its Employee’S Counsel: A Better Model For Preventing And Addressing Corporate Crime, Josephine Sandler Nelson
J.S. Nelson
Although the U.S. Supreme Court as far back as the 1981 case of Wood v. Georgia[1] identified the inherent conflict of interest that exists when an employer controls its employee’s counsel, until now, no uniform solution has existed to protect the employee’s rights in these situations.
Currently, a single attorney, as in Wood, may often represent both the corporation[2] and the corporation’s employees. The employer can control the employee’s defense because agency law recognizes only that the interests of the principal—the employer—are at stake.[3] Under agency law, the employer controls the defense because it may …
The Intracorporate Conspiracy Trap Presentation, J.S. Nelson
The Intracorporate Conspiracy Trap Presentation, J.S. Nelson
J.S. Nelson
This is a slide-show presentation of my Intracorporate Conspiracy Trap article.
Protecting Employee Rights And Prosecuting Corporate Crimes: A Proposal For Criminal Cumis Counsel, Josephine Sandler Nelson
Protecting Employee Rights And Prosecuting Corporate Crimes: A Proposal For Criminal Cumis Counsel, Josephine Sandler Nelson
J.S. Nelson
To address multi-dimensional conflict of interest problems in directors and officers (D&O) indemnification cases, we propose a solution that was originally developed for civil insurance cases in California, but that has an even more powerful and appropriate application in the context of criminal employee defendants.
Corporate crime costs the United States a staggering $600 billion a year. By contrast, the total cost of all non-corporate crime in 2001 from robbery, burglary, larceny-theft, and motor vehicle theft combined was $17.2 billion; less than one-third of what fraudulent activities at the single company of Enron cost investors, pensioners, and employees in the …
Federal Courts — Proposed Changes To The Ninth Circuit And The Federal Courts Of Appeals — Final Report Of The Commission On Structural Alternatives For The Federal Courts Of Appeals; And S. 253, The Ninth Circuit Reorganization Act, Josephine Sandler Nelson
Federal Courts — Proposed Changes To The Ninth Circuit And The Federal Courts Of Appeals — Final Report Of The Commission On Structural Alternatives For The Federal Courts Of Appeals; And S. 253, The Ninth Circuit Reorganization Act, Josephine Sandler Nelson
J.S. Nelson
No abstract provided.