Law Commons^™

Reward The Stalking Horse Or Preserve The Estate: Determining The Appropriate Standard Of Review For Awarding Break-Up Fees In § 363 Sales, Zachary Frimet

Zachary Frimet

Following the surge of bankruptcies in the wake of the Great Recession, a growing and somewhat controversial trend has emerged whereby companies seeking to purchase a debtor’s assets in bankruptcy frequently make use of Section 363 of the United States Bankruptcy Code (“§ 363”). In general, § 363 sales are accomplished via public auction. This aspect of § 363 exposes initial bidders, known in bankruptcy as “stalking horses bidders”, to the risk that they will commit time and resources in pursuit of the acquisition and yet fail to succeed as the prevailing bidder. To hedge against this risk, stalking horse …

Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas

Jude A Thomas

Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. In a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on M&A activity and its poor corporate policy implications. This has led many academics and practitioners to ask whether Omnicare was a normatively …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. Indeed, much of the criticism originated from the court itself; in a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on merger and acquisition activity and its poor corporate policy implications. This has …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. Indeed, much of the criticism originated from the court itself; in a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on merger and acquisition activity and its poor corporate policy implications. This has …

Internet Law For The Business Lawyer, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

An ‘All Of The Above’ Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

The paper provides a brief background of Nathan Isaacs, his work, and his theory of legal development. Invariably, when analyzing Isaacs’ claim that history proves that law developments in cycles (status to contract to status) the role of Jewish legal history in the development of his thought will play an important role in understanding his theory. Isaacs’ was that rare scholar knowledgeable in the common law, as well as, civil law. A pragmatic realist, as well as a devote Jew. He was a legal historian and very much a man of the present. He possessed a Ph.D. in Economics, and …

The Case Against The Dodd-Frank Act’S Living Wills: Contingency Planning Following The Financial Crisis, Nizan Geslevich Packin

Nizan Geslevich Packin

The Dodd-Frank Act’s “living will” requirement mandates that systemically important financial institutions develop wide-ranging strategic analyses of their business affairs, and submit comprehensive contingency plans for reorganization or resolution of their operations to regulators. The goal is to mitigate risks to the financial stability of the US and encourage last-resort planning, which will allow for a rapid and efficient response in the event of an emergency. Beyond the general framework set forth in the Dodd-Frank Act, very little is known about living wills; no legal literature currently exists on what the concept entails, and regulators have not yet created any …

The Dodd-Frank Wall Street Reform And Consumer Protection Act: What Caused The Financial Crisis And Will Dodd-Frank Succeed In Preventing Future Crises?, Charles W. Murdock

Charles W. Murdock

Summary: The Dodd-Frank Wall Street Reform and Consumer Protection Act: What Caused the Financial Crisis and Will Dodd-Frank Succeed in Preventing Future Crises?

We are still experiencing the devastating impact of the financial crisis which came to a head on September 18, 2008 when Secretary Paulson told Congressional leaders that “[u]nless you act, the financial system of this country and the world will melt down in a matter of days.”

To prevent future crises of this magnitude, last year Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. However, this year, legislation has already been introduced to repeal …

Why Foreclosure Robo-Signers Should Be Everyone's Concern, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

The Financial Reform Act: Will It Succeed In Reversing The Causes Of The Subprime Crisis And Prevent Future Crises?, Charles W. Murdock

Charles W. Murdock

Summary: The Financial Reform Act: Will It Succeed in Reversing the Causes of the Subprime Crisis and Prevent Future Crises? By: Professor Charles W. Murdock

The current financial crisis, which could have plunged the world into a financial abyss similar to the Great Depression, is far from resolved. The financial institutions, which this article asserts caused the crisis, have returned to profitability and have paid billions of dollars in bonuses, while ordinary Americans have borne the brunt of the meltdown, with formal unemployment hanging around the 10% mark. This has caused some to comment that profits have been privatized and …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

How Incentives Drove the Subprime Crisis

In order to address any systemic problem, whether the goal is to change the system, regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

In order to address any systemic problem, whether the goal is to change the system, o regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular perspective, namely, the incentives that …

Survey Of The Law Of Cyberspace: Introduction, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

Why Not Tell The Truth?: Deceptive Practices And The Economic Meltdown, Charles W. Murdock

Charles W. Murdock

Today we are witnessing a crisis caused by economic formulae developed without a responsible exercise of judgment and, in many instances, with a shocking disregard for the truth. The virtue of truthfulness is not just some abstract moral principle. Rather, it is a critical component of a well functioning society. As the current situation demonstrates, the lack of regard for truthfulness can have disastrous consequences, not just for our own country, but around the world.

This article will first examine how broadly truth is devalued throughout our society. Second, it will focus on the lack of truthfulness in politics and …

Policing Limited Liability Companies Under Contract Law, Larry Dimatteo

Larry A DiMatteo

In 2004, Delaware amended its limited liability company law (Delaware Act) to allow for the contractual elimination of fiduciary duties. The statute seeks to emphasize the contract basis of limited liability companies (LLCs). It does this by providing the legal support for the incorporation of clauses that eliminate the traditional duties of care and loyalty (elimination clauses) found in corporate, agency, and trust law. The only immutable principle enunciated by the Delaware Act is the covenant of good faith. The primary focus of this paper will be on the ability of contract law to police the management and operation of …

Our Mini-Theme: O Canada, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

Cyberspace Law Survey: Introduction, Juliet Moringiello, Michael Fleming

Juliet M Moringiello

No abstract provided.

Mgm Studios, Inc. V. Grokster, Ltd., 545 U.S. 913 (2005), Juliet Moringiello

Juliet M Moringiello

No abstract provided.

The One Minute Manager Prepares For Mediation: A Multidisciplinary Approach To Negotiation Preparation, Donald R. Philbin, Jr.

Donald R. Philbin Jr.

No abstract provided.

Money, Money Everywhere But Not A Drop To Secure: A Proposal To Amend The Perfection Rule For Security Interests In Money And Deposit Accounts, Brian M. Mccall

Brian M McCall

It is time that the billions of dollars of money and bank account balances held by debtors be made available as security in a manner that is commercially practical. The rules governing the perfection of security interests in money and deposit accounts need to be reformed to allow perfection by filing. This article builds a case for the proposed revisions by addressing the vexing question “what is money.” A brief history, especially drawing upon the history of the UCC, of answers to this question is presented. Various policy rationales are explored including an examination of the different forms of payment …

Contracts, Payments And What To Do With All That Data: Introduction To The 2006 Cyberspace Survey, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

Grasping Intangibles: Domain Names And Creditors’ Rights, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

Priorities Under Revised Article 9 Of The Uniform Commercial Code, Juliet Moringiello

Juliet M Moringiello

No abstract provided.

Supplemental Damages In Private International Law, John Gotanda

John Y Gotanda

No abstract provided.

Sales: An Electronic Casebook And Materials , Michael Spak

Michael Spak

No abstract provided.