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Full-Text Articles in Law

Public Relations Litigation, Kishanthi Parella Jul 2019

Public Relations Litigation, Kishanthi Parella

Faculty Scholarship

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in ...


How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby Jul 2019

How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby

Faculty Scholarship

This article dissects both the origins and resulting harms of what the author terms the "hedge fund conundrum," in which institutional investors, such as pension plans and endowments, have consistently increased hedge fund allocations over the past decade despite pervasive evidence of excessive fees and subpar returns. It then utilizes an historical institutionalist lens to examine how lawmakers may have enabled a conundrum of this magnitude. By and large, this phenomenon is a symptom of regulatory loopholes that have permitted the private hedge fund market to increase in "publicness" through its expanding access and subsequent harm to retail investors. Such ...


Board Governance For The Twenty-First Century, Faith Stevelman, Sarah C. Haan Apr 2019

Board Governance For The Twenty-First Century, Faith Stevelman, Sarah C. Haan

Faculty Scholarship

A decade after the global financial crisis, corporate governance is in a state of flux. A conceptual shift is underway. Years ago, in "first wave" governance, boards had a cozy relationship with the company C-suite. In "second wave" governance, which took hold in the 1970s, legal academics reimagined the board's role, conceptualizing directors as monitors charged with limiting waste and abuse that can arise in agency relationships. Now, we find ourselves at the threshold of "third wave" governance, in which boards are asked to grapple immediately and candidly with both the financial aspects of business and new environmental, social ...


Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody Jan 2019

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Faculty Scholarship

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which ...


Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, Lyman P. Q. Johnson, J. Robert Brown, Joan Macleod Heminway Sep 2017

Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, Lyman P. Q. Johnson, J. Robert Brown, Joan Macleod Heminway

Faculty Scholarship

This Amicus Brief was filed with the U.S. Supreme Court on behalf of nearly 50 law and business faculty in the United States and Canada who have a common interest in ensuring a proper interpretation of the statutory securities regulation framework put in place by the U.S. Congress. Specifically, all amici agree that Item 303 of the Securities and Exchange Commission's Regulation S-K creates a duty to disclose for purposes of Rule 10b-5(b) under the Securities Exchange Act of 1934.

The Court’s affirmation of a duty to disclose would have little effect on existing practice ...


The Information Regulation Of Business Actors, Kishanthi Parella Jun 2017

The Information Regulation Of Business Actors, Kishanthi Parella

Faculty Scholarship

A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder initiatives, international organization recommendations and guidelines, NGO certifications, and other voluntary instruments. Many of the norms within this TLO are nonbinding and therefore lack mandatory compliance; what they may possess is persuasive power, particularly when the norms are developed, endorsed, and managed by reputable organizations. It is that reputational, or legitimacy, advantage that matters for encouraging industry associations to comply with the nonbinding norms associated with these organizations. Industry associations and other business actors will gravitate more towards legitimacy ...


Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody Jan 2017

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Faculty Scholarship

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the ...


No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody Jan 2017

No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody

Faculty Scholarship

The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign public officials in order to obtain or retain business. It is, for all intents and purposes, an anti-bribery statute. To detect bribery, the FCPA contains accounting provisions related to bookkeeping and internal controls. The books and records provision requires issuers to make and maintain accurate books, records, and accounts; likewise, the internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. If one considers the analogy that bribery is the “fire” in FCPA enforcement actions, and books and records violations ...


The Stewardship Of Trust In The Global Value Chain, Kishanthi Parella Jan 2016

The Stewardship Of Trust In The Global Value Chain, Kishanthi Parella

Faculty Scholarship

Global governance has not yet caught up with the globalization of business. As a result, our headlines provide daily accounts of the extent and consequences of these "governance gaps." The ability of corporations to evade state control also contributes to an unusual, even frightening, phenomenon: corporations are governing like states. Some governance functions traditionally delivered by state actors are now increasingly undertaken by transnational corporations. One area that is experiencing this substitution is dispute resolution of human rights. Corporations and other business enterprises, individually or collectively, are creating a variety of grievance mechanisms to address human rights and other conflicts ...


Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody Jan 2016

Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody

Faculty Scholarship

Professor Peter Reilly’s article, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act, 67 Fla. L. Rev. 1683 (2015), challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC),2 self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability.

This Article takes a broader look ...


Reforming The Global Value Chain Through Transnational Private Regulation, Kishanthi Parella Jan 2015

Reforming The Global Value Chain Through Transnational Private Regulation, Kishanthi Parella

Faculty Scholarship

In many industries, corporations have changed the organization of their production from a vertically integrated model to a model that is often characterized by outsourcing-shifting business activities to external parties -and offshoring, where production occurs at sites overseas. The global value chain (GVC) for an American corporation often involves several tiers of suppliers. One end of the GVC is often occupied by a multinational buyer (MNB), such as a large brand name corporation. At the opposite end of the value chain are the factories, farms, and other production sites that supply multinational corporations with their goods. This organization of production ...


The New Global Financial Regulatory Order: Can Macroprudential Regulation Prevent Another Global Financial Disaster?, Behzad Gohari, Karen E. Woody Jan 2015

The New Global Financial Regulatory Order: Can Macroprudential Regulation Prevent Another Global Financial Disaster?, Behzad Gohari, Karen E. Woody

Faculty Scholarship

This Article posits that the success of macroprudential regulation will depend on four factors. First, the economic philosophy of the central banker in charge of the domestic institution with jurisdiction over macroprudential regulation will prove crucial in the implementation of adopted regulation. If, like Chairman Greenspan, the banker is averse to the exercise of the Central Bank's regulatory oversight authority, then no amount or volume of policy or regulation will prevent or mitigate systemic risks and the accompanying shocks. Second, a sufficiently deep level of international cooperation is required to mitigate regulatory arbitrage, without being so broad that the ...


Comment On The Proposed Definition Of “Eligible Organization” For Purposes Of Coverage Of Certain Preventative Services Under The Affordable Care Act, Lyman P. Q. Johnson, David K. Millon, Stephen M. Bainbridge, Ronald J. Colombo, Brett Mcdonnell, Alan J. Meese, Nathan B. Oman Oct 2014

Comment On The Proposed Definition Of “Eligible Organization” For Purposes Of Coverage Of Certain Preventative Services Under The Affordable Care Act, Lyman P. Q. Johnson, David K. Millon, Stephen M. Bainbridge, Ronald J. Colombo, Brett Mcdonnell, Alan J. Meese, Nathan B. Oman

Faculty Scholarship

In late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are “persons” that can “exercise religion,” the Department of Health and Human Services (“HHS”) proposed new rules defining “eligible organizations.” Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and ...


Outsourcing Corporate Accountability, Kishanthi Parella Oct 2014

Outsourcing Corporate Accountability, Kishanthi Parella

Faculty Scholarship

This Article addresses the problem of preventing human rights violations abroad that result from the globalization of business. It specifically explores the challenge of improving labor standards in global value chains. The modern business has changed dramatically and has “gone global” in order to court foreign markets and secure resources, including labor. Familiar household names, such as Nike and Apple, have “outsourced” many of their functions to suppliers overseas. As multinational buyers, they dominate one end of the global value chain. At the opposite end of the value chain are the local managers and owners of the factories and workhouses ...


Unsettledness In Delaware Corporate Law: Business Judgment Rule, Corporate Purpose, Lyman P. Q. Johnson Jan 2013

Unsettledness In Delaware Corporate Law: Business Judgment Rule, Corporate Purpose, Lyman P. Q. Johnson

Faculty Scholarship

This Article revisits two fundamental issues in corporate law. One — the central role of the business judgment rule in fiduciary litigation — involves a great deal of seemingly settled law, while the other — is there a mandated corporate purpose — has very little law. Using the emergent question of whether the business judgment rule should be used in analyzing officer and controlling shareholder fiduciary duties, the latter issue having recently been addressed by Chancellor Strine in the widely-heralded MFW decision, this Article proposes a fundamental rethinking of the rule’s analytical preeminence. For a variety of reasons, it is suggested that fiduciary ...


Conceptions Of Corporate Purpose In Post-Crisis Financial Firms, Christopher M. Bruner Jan 2013

Conceptions Of Corporate Purpose In Post-Crisis Financial Firms, Christopher M. Bruner

Faculty Scholarship

American "populism" has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose - the aims toward which society expects corporate decision-making to be directed. This article assesses the impact of American populism upon prevailing conceptions of corporate purpose - contrasting its unique expression in the context of financial firms with that arising in other contexts - and then examines its impact upon corporate governance reforms enacted in the wake of the financial and economic ...


Is The Corporate Director's Duty Of Care A 'Fiduciary' Duty? Does It Matter?, Christopher M. Bruner Jan 2013

Is The Corporate Director's Duty Of Care A 'Fiduciary' Duty? Does It Matter?, Christopher M. Bruner

Faculty Scholarship

While reference to "fiduciary duties" (plural) is routinely employed in the United States as a convenient short-hand for a corporate director's duties of care and loyalty, other common-law countries generally treat loyalty as the sole "fiduciary duty." This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware's convoluted and problematic framework for evaluating disinterested board conduct been facilitated by styling care a "fiduciary" duty? If so, then how should Delaware lawmakers and judges respond ...


Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman P.Q. Johnson Jan 2012

Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman P.Q. Johnson

Faculty Scholarship

This paper, part of a larger scholarly project, addresses one of four areas – i.e., the emergence of corporate personhood – where, historically, law has both influenced and mirrored cultural expectations concerning corporate responsibility. The other areas (treated elsewhere) are corporate purpose, corporate regulation, and corporate governance. Corporate personhood is a subject of longstanding and recurring interest that, notwithstanding it has been a settled concept since the 19th century, continues to vex and excite, as seen in the U. S. Supreme Court’s splintered 5-4 decision in the 2010 case of Citizens United v. Federal Election Commission. The decades-long debates about ...


Gender And Securities Law In The Supreme Court, Lyman P.Q. Johnson, Michelle Harner, Jason A. Cantone Jan 2012

Gender And Securities Law In The Supreme Court, Lyman P.Q. Johnson, Michelle Harner, Jason A. Cantone

Faculty Scholarship

The 2010 appointment of Elena Kagan to the United States Supreme Court meant that, for the first time, three female justices would serve together on that court. Less clear is whether Justice Kagan’s gender will really matter in how she votes as a justice. This question is an especially visible aspect of a larger issue: do female judges display gendered voting patterns in the cases that come before them?

This article makes a novel contribution to the growing literature on female voting patterns. We investigated whether female justices on the United States Supreme Court voted differently than, or otherwise ...


Managing Corporate Federalism: The Least-Bad Approach To The Shareholder Bylaw Debate, Christopher M. Bruner Jan 2011

Managing Corporate Federalism: The Least-Bad Approach To The Shareholder Bylaw Debate, Christopher M. Bruner

Faculty Scholarship

Over recent decades, shareholders in public corporations have increasingly sought to augment their own power – and, correlatively, to limit the power of boards – through creative use of corporate bylaws. The bylaws lend themselves to such efforts because enacting, amending, and repealing bylaws are essentially the only corporate governance actions that shareholders can undertake unilaterally. In this Article I examine the contested nature of bylaws, the fundamental issues of corporate power and purpose that they implicate, and the differing ways in which state and federal lawmakers and regulators may impact the debate regarding the scope of the shareholders' bylaw authority. The ...


Corporate Governance Reform In A Time Of Crisis, Christopher M. Bruner Jan 2011

Corporate Governance Reform In A Time Of Crisis, Christopher M. Bruner

Faculty Scholarship

In this article I argue that crisis-driven corporate governance reform efforts in the United States and the United Kingdom that aim to empower shareholders are misguided, and offer an explanation of why policymakers in each country have reacted to the financial crisis as they have. I first discuss the risk incentives of shareholders and managers in financial firms, and examine how excessive leverage and risk-taking in pursuit of short-term returns for shareholders led to the crisis. I then describe the far greater power and centrality that U.K. shareholders have historically possessed relative to their U.S. counterparts, and explore ...


Reality Check On Officer Liability, Lyman P.Q. Johnson Jan 2011

Reality Check On Officer Liability, Lyman P.Q. Johnson

Faculty Scholarship

This article addresses the fiduciary duties of corporate officers. Responding to a critique that recent scholarly analyses of officers depart from reality, it argues that, on a variety of grounds, those analyses are more realistic than the critique and provide doctrinal coherence and advance the goal of meaningful executive accountability. The divergent governance functions of directing versus managing are described and it is argued that those disparate roles should matter for fiduciary duty analysis. No great outbreak of litigation should be expected if officers are held to a stricter duty of care than directors because boards of directors, not courts ...


Enduring Equity In The Close Corporation, Lyman P.Q. Johnson Jan 2011

Enduring Equity In The Close Corporation, Lyman P.Q. Johnson

Faculty Scholarship

This Article develops the theme of change/sameness in corporate law. Written to commemorate the thirty-fifth anniversary of Wilkes v. Springside Nursing Home, Inc., the Article argues that the equitable fiduciary duties so central to Wilkes endure today in the close corporation precisely because equity, by its nature, is so exquisitely adaptive – under constantly changing circumstances − to the ongoing pursuit of a just ordering within the corporation. Unlike fixed legal rules – which are categorical, static, and do not take sufficient account of changes wrought by time or human arationality – equity is malleable and timely as it reckons with the flux ...


Innovative Transactional Pedagogies, Joan Macleod Heminway, Michael A. Woronoff, Lyman P.Q. Johnson Jan 2011

Innovative Transactional Pedagogies, Joan Macleod Heminway, Michael A. Woronoff, Lyman P.Q. Johnson

Faculty Scholarship

Our law schools are embracing in a more powerful way innovative transactional pedagogies that address not only theory, policy, and doctrine, but also legal skills. This transcribed panel discussion explores three of these pedagogies – teaching corporate finance as advanced contract drafting, teaching numeracy, and teaching substance and skill in contract drafting through the use of in-office meetings and analytical memos – and describes how they are being implemented in law teaching. The panel was part of the “Transactional Education: What’s Next?” conference hosted by the Emory University School of Law’s Center for Transactional Law and Practice on June 4-5 ...


Two Models Of Corporate Social Responsibility, David K. Millon Jan 2011

Two Models Of Corporate Social Responsibility, David K. Millon

Faculty Scholarship

The article discusses the two perspectives of corporate social responsibility (CSR). It states that the constituency model of CSR focus on the constituent elements of the company including shareholders, senior management, and employees. It mentions that the sustainability approach to CSR focus on the external relationships as well as the long-run sustainability of the company.


Delaware's Non-Waivable Duties, Lyman P. Q. Johnson Jan 2011

Delaware's Non-Waivable Duties, Lyman P. Q. Johnson

Faculty Scholarship

This Article disputes the view - seemingly settled among scholars, judges, and lawyers - that recently - enacted statutes in Delaware legally permit fiduciary duties to be waived in noncorporate business associations. The argument is a rarity in business law because it is a constitutional argument, not one initially based on policy considerations or statutory interpretation, and it seeks to harmonize judicial review of fiduciary duties in noncorporate businesses with that in Delaware corporations, where waivers are not permitted. Delaware’s Constitution vests the Delaware Court of Chancery with general equity jurisdiction and powers of a kind that cannot be curtailed by legislative ...


Beyond The Inevitable And Inadequate Regulation Of Bankers, Lyman P. Q. Johnson Jan 2011

Beyond The Inevitable And Inadequate Regulation Of Bankers, Lyman P. Q. Johnson

Faculty Scholarship

None available.


Good Faith In Revlon-Land, Christopher M. Bruner Jan 2011

Good Faith In Revlon-Land, Christopher M. Bruner

Faculty Scholarship

The Delaware Supreme Court has set a very high hurdle for plaintiffs challenging directors' good faith in the sale of a company. In Lyondell Chemical Company v. Ryan, the court held that unconflicted directors could be found to have breached the good faith component of their duty of loyalty in the transactional context only if they "knowingly and completely failed to undertake," and "utterly failed to attempt" to discharge their duties.

In this essay I argue that the Lyondell standard effectively imports into the transactional context the exacting standard previously applied in the oversight context — a move clearly aimed at ...


Power And Purpose In The "Anglo-American" Corporation, Christopher M. Bruner Apr 2010

Power And Purpose In The "Anglo-American" Corporation, Christopher M. Bruner

Faculty Scholarship

The article discusses the impact of a shareholder-centric and market-oriented approach to corporate governance among public business firms in the U.S. and Great Britain. It mentions that both countries have more common similarities in terms of corporate governance systems and business cultures. It affirms that despite such similarities, both countries' corporate governance system differs on how they relate to external regulations that can affect their relationships among stakeholders.


Re-Enchanting The Corporation, Lyman P.Q. Johnson Jan 2010

Re-Enchanting The Corporation, Lyman P.Q. Johnson

Faculty Scholarship

This Essay begins with Max Weber’s observation that the condition of the modern world is “disenchanted” and goes on to argue that contesting the notion of disenchantment offers a promising framework for rethinking baseline issues in corporate law and corporate life more generally. After elaborating what disenchantment meant to Weber, this Essay offers two counter-observations. First, the world may not be better off as a result of disenchantment. Second, as an empirical matter the world may not really be “disenchanted” given the substantial number of people who both hold religious beliefs and consistently report that those beliefs influence how ...