Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Business Organizations Law

2004

Institution
Keyword
Publication
File Type

Articles 1 - 30 of 101

Full-Text Articles in Law

Icarus In The Boardroom, Introduction, David A. Skeel Jr. Dec 2004

Icarus In The Boardroom, Introduction, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Americans have always loved risk takers. Like the Icarus of ancient Greek lore, however, even the most talented entrepreneurs can overstep their bounds. All too often, the very qualities that make Icaran executives special - self-confidence, visionary insight, and extreme competitiveness - spur them to take misguided and even illegal chances. The Icaran failure of an ordinary entrepreneur isn't headline news. But put Icarus in the corporate boardroom and - as this book vividly demonstrates - the ripple effects can be profound. Ever since the first large-scale corporations emerged in the nineteenth century, their ability to tap huge amounts of capital and the ...


Capital Market Exits: Planning For Restricted And Control Securities, George F. Albright Nov 2004

Capital Market Exits: Planning For Restricted And Control Securities, George F. Albright

William & Mary Annual Tax Conference

No abstract provided.


Exit Strategies And Techniques For The Business Owner, Stephen L. Owen Nov 2004

Exit Strategies And Techniques For The Business Owner, Stephen L. Owen

William & Mary Annual Tax Conference

No abstract provided.


Family Limited Partnership Update, Farhad Aghdami Nov 2004

Family Limited Partnership Update, Farhad Aghdami

William & Mary Annual Tax Conference

No abstract provided.


Non-Traditional Sources Of Capital For The Maturing Business Nov 2004

Non-Traditional Sources Of Capital For The Maturing Business

William & Mary Annual Tax Conference

No abstract provided.


Business & Finance Issues With Traditional Finance And Capitalization Nov 2004

Business & Finance Issues With Traditional Finance And Capitalization

William & Mary Annual Tax Conference

No abstract provided.


Executive Compensation Planning For Privately-Held Businesses, Jeffrey R. Capwell Nov 2004

Executive Compensation Planning For Privately-Held Businesses, Jeffrey R. Capwell

William & Mary Annual Tax Conference

No abstract provided.


Business, Benefits And Tax Issues Involved In The Formation And Structure Of The Closely Held Business Selection Of Entity Considerations, C. Wells Hall Iii Nov 2004

Business, Benefits And Tax Issues Involved In The Formation And Structure Of The Closely Held Business Selection Of Entity Considerations, C. Wells Hall Iii

William & Mary Annual Tax Conference

No abstract provided.


Democracy And The Dominance Of Delaware In Corporate Law, Kent Greenfield Nov 2004

Democracy And The Dominance Of Delaware In Corporate Law, Kent Greenfield

Boston College Law School Faculty Papers

Among the grandest debates within corporate law is whether the dominance of Delaware is the result of a “race to the bottom” -- toward a legal regime that benefits managers at the expense of the shareholders -- or a “race to the top” -- toward an efficient, shareholder-centric governance framework. This paper argues that this debate is largely beside the point. Even if Delaware’s dominance is the result of a competition resulting in law that efficiently serves the interests of shareholders, it is nevertheless illegitimate. This is because the internal affairs doctrine, on which Delaware’s preeminence depends, in effect allows corporations ...


A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen Nov 2004

A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen

George Mason University School of Law Working Papers Series

Canada now faces two looming policy crises that have come to a head in British Columbia. The first is long-term depletion of the Pacific salmon fishery by mobile commercial ocean fishermen racing to intercept salmon under the rule of capture. The second results from Canadian Supreme Court case law recognizing and affirming “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” under Section 35(1) of the Constitution Act, 1982. This essay shows that the economics of property rights provides a joint solution to these crises that would promote the Canadian commonwealth by way of a privatization ...


Should A Duty To The Corporation Be Imposed On Institutional Shareholders?, Roberta S. Karmel Nov 2004

Should A Duty To The Corporation Be Imposed On Institutional Shareholders?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.


Strict Liability For Gatekeepers: A Reply To Professor Coffee, Frank Partnoy Oct 2004

Strict Liability For Gatekeepers: A Reply To Professor Coffee, Frank Partnoy

University of San Diego Law and Economics Research Paper Series

This article responds to a proposal by Professor John C. Coffee, Jr. for a modified form of strict liability for gatekeepers. Professor Coffee’s proposal would convert gatekeepers into insurers, but cap their insurance obligations based on a multiple of the highest annual revenues the gatekeepers recently had received from their wrongdoing clients. My proposal, advanced in 2001, would allow gatekeepers to contract for a percentage of issuer damages, after settlement or judgment, subject to a legislatively-imposed floor. This article compares the proposals and concludes that a contractual system based on a percentage of the issuer’s liability would be ...


Encumbered Shares, Shaun Martin, Frank Partnoy Oct 2004

Encumbered Shares, Shaun Martin, Frank Partnoy

University of San Diego Law and Economics Research Paper Series

The fundamental assumptions in the law and economics literature about shareholder voting and the one-share/one-vote rule are flawed. The classic view is that share ownership is necessary and sufficient to create voting rights and that such rights should be directly proportional to share ownership. We demonstrate that this assumption is unfounded, both for shares that are “economically encumbered” (held by shareholders who are not pure residual claimants; e.g., a shareholder who owns one share and is also short one or more shares) as well as shares that are “legally encumbered” (held or associated with more than one shareholder ...


Does The Tax Law Discriminate Against The Majority Of American Children: The Downside Of Our Progressive Rate Structure And Unbalanced Incentives For Higher Education?, Lester B. Snyder Oct 2004

Does The Tax Law Discriminate Against The Majority Of American Children: The Downside Of Our Progressive Rate Structure And Unbalanced Incentives For Higher Education?, Lester B. Snyder

University of San Diego Law and Economics Research Paper Series

Our graduate income tax structure provides an incentive to shift income to lower-bracket family members. However, some parents have much more latitude to shift income to their children than do others. Income derived from services and private business-by far the majority of American income-is less favored than income derived from publicly traded securities. The rationale given for this discrimination is that parents in services or private business, as opposed to those in securities, do not actually part with control of their property. This article explores these tax broader (yet subtle) tax benefits and their impact on the majority of children ...


Preemption Under The Securities Litigation Uniform Standards Act: If It Looks Like A Securities Fraud Claim And Acts Like A Securities Fraud Claim, Is It A Securities Fraud Claim?, Jennifer O'Hare Oct 2004

Preemption Under The Securities Litigation Uniform Standards Act: If It Looks Like A Securities Fraud Claim And Acts Like A Securities Fraud Claim, Is It A Securities Fraud Claim?, Jennifer O'Hare

Working Paper Series

This Article addresses the removal and preemption provisions of the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”). In SLUSA, Congress preempted class actions alleging “an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security.” SLUSA clearly applies to preempt the typical state securities fraud action, forcing plaintiffs into federal court where they will be subject to the rigorous procedural requirements of the Private Securities Litigation Reform Act of 1995. Preemption of false corporate publicity cases was expected and, in fact, intended by SLUSA. However, many courts have also extended ...


Solving The Everyday Problem Of Client Identity In The Context Of Closely Held Businesses, Darian M. Ibrahim Oct 2004

Solving The Everyday Problem Of Client Identity In The Context Of Closely Held Businesses, Darian M. Ibrahim

Faculty Publications

No abstract provided.


Rejecting The Marie Antoinette Paradigm Of Prejudgment Interest, Royce De R. Barondes Oct 2004

Rejecting The Marie Antoinette Paradigm Of Prejudgment Interest, Royce De R. Barondes

Faculty Publications

This paper examines principles for properly computing prejudgment interest by examining the impact on different corporate constituencies. This paper concludes that prejudgment interest at a promisor's cost of funds can undercompensate promisees, by shifting value from the promisee's equityholders to its creditors through a forced investment that decreases the risk of the promisee's portfolio of assets.


Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii Oct 2004

Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii

Faculty Publications

This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement ...


Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna Sep 2004

Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna

Law & Economics Working Papers Archive: 2003-2009

Corporations are frequently treated as “persons” under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill ...


A Model Financial Statement Insurance Act, Lawrence A. Cunningham Sep 2004

A Model Financial Statement Insurance Act, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Building on companion work investigating the efficacy of financial statement insurance (FSI) as an alternative to traditional auditor liability, this Article presents the terms of a national enabling statute to implement this concept. The Model Financial Statement Insurance Act uses the architecture of the U.S. Trust Indenture Act of 1939. It authorizes issuer application for qualification, in connection with annual proxy statement filings, of policies of financial statement insurance. The Model FSI Act deems a series of provisions necessary to achieve securities law objectives to be part of all financial statement insurance policies so proposed, and requires insurers to ...


Competing Visions Of The Corporation In Catholic Social Thought, Mark A. Sargent Jul 2004

Competing Visions Of The Corporation In Catholic Social Thought, Mark A. Sargent

Working Paper Series

Catholic Social Thought (CST) is coherent body of principles concerning the organization of social and economic life drawing on the inspiration of natural law, Thomism, the Gospel and the tradition of Christian personalism. While valuing the creative energy of capitalism and its contributions to the production of wealth, it is often highly critical of the inequalities generated by capitalism, its tendency to promote materialistic consumerism and capital's devaluation of the dignity of work. While not easily characterizable as "right" or "left", CST thinking about corporate social responsibility and corporate governance has become split between interpretations emphasizing the importance of ...


Using "Norms" To Change International Law: Un Human Rights Laws Sneaking In Through The Back Door, Troy A. Rule Jul 2004

Using "Norms" To Change International Law: Un Human Rights Laws Sneaking In Through The Back Door, Troy A. Rule

Faculty Publications

For decades, multinational businesses have self-regulated their operations with respect to human rights, largely unfettered by international law. In recent years, however, human rights groups have advocated that the United Nations (“UN”) create clear legal obligations for multinationals respecting their human rights-related conduct. At least partly due to the substantial burden such obligations could place on international businesses, these efforts by human rights proponents have proven largely fruitless--until now.On August 13, 2003, the UN Sub-commission on the Promotion and Protection of Human Rights adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to ...


Was Arthur Andersen Different? An Empirical Examination Of Major Accounting Firm Audits Of Large Clients, Theodore Eisenberg, Jonathan R. Macey Jul 2004

Was Arthur Andersen Different? An Empirical Examination Of Major Accounting Firm Audits Of Large Clients, Theodore Eisenberg, Jonathan R. Macey

Cornell Law Faculty Publications

Enron and other corporate financial scandals focused attention on the accounting industry in general and on Arthur Andersen in particular. Part of the policy response to Enron, the criminal prosecution of Andersen eliminated one of the few major audit firms capable of auditing many large public corporations. This article explores whether Andersen’s performance, as measured by frequency of financial restatements, measurably differed from that of other large auditors. Financial restatements trigger significant negative market reactions and their frequency can be viewed as a measure of accounting performance. We analyze the financial restatement activity of approximately 1,000 large public ...


Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock Jun 2004

Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

In the public debate sparked by the corporate scandals of the last years, Delaware has been strikingly absent. In contrast to the high profile activity of Congress, the Securities and Exchange Commission, the stock exchanges, federal prosecutors, and even state law enforcement officials, Delaware has been largely mute: no legislation; no rule-making; no criminal investigations; few headlines. In this Article, we use Delaware's relative passivity during this latest episode of corporate law-making as a starting point in the analysis of the shape of American corporate federalism and Delaware's place within it. We argue that Delaware long ago opted ...


Choosing Gatekeepers: The Financial Statement Insurance Alternative To Auditor Liability, Lawrence A. Cunningham Jun 2004

Choosing Gatekeepers: The Financial Statement Insurance Alternative To Auditor Liability, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Positioned in a lively current debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This breaks from the existing securities regulation framework to draw directly on insurance markets and law. Based on upon an evaluation of major structural and policy-related features of the concept, the assessment prescribes a framework to permit companies, on an experimental-basis and with investor approval, to use financial statement insurance as an optional alternative to the existing model of financial statement auditing backed by auditor liability. The financial statement insurance concept, pioneered by ...


Taxation Of Spin-Off – U.S. And German Corporate Tax Law, Stefan W. Suchan Jun 2004

Taxation Of Spin-Off – U.S. And German Corporate Tax Law, Stefan W. Suchan

Cornell Law School J.D. Student Research Papers

Corporate law provides for a transaction commonly referred to as “spin-off”. The corporate enterprise is divided in (at least) two corporations. The stock of a controlled subsidiary will be distributed pro rata by a parent corporation to its shareholders which end up owning a brother/sister pair of corporate enterprises.

The Internal Revenue Code (IRC) in § 355 provides special rules for the distribution of stock and securities of a controlled corporation. The transaction is known as a “D reorganization”, if such a distribution follows the transfer by a corporation of all or a part of its assets to another corporation ...


Post-Enron: U.S. And German Corporate Governance, Stefan W. Suchan Jun 2004

Post-Enron: U.S. And German Corporate Governance, Stefan W. Suchan

Cornell Law School J.D. Student Research Papers

Only five years after Henry Hansmann and Reinier Kraakmann announced "the End of History of Corporate Law" – borrowing the words of Francis Fukuyama–, this observation seems at least questionable. Following two major failures of the “American Model” with the bankruptcy of Enron and WorldCom, the question of the "right" Corporate Governance regime is again under discussion.

Legislators around the globe assume that further development of Corporate Governance is necessary. There is consent for the need of improvement, but no clear answer on how to improve. A first step to solving the arising problems might be to evaluate the reasons for ...


Untaxing Taxes: An Attempt To Compare Philippine And Us Laws On Tax-Free Corporate Reorganizations, Salvador B. Belaro Jr. May 2004

Untaxing Taxes: An Attempt To Compare Philippine And Us Laws On Tax-Free Corporate Reorganizations, Salvador B. Belaro Jr.

Cornell Law School J.D. Student Research Papers

In comparing tax-free corporate reorganizations between Philippine and US law, the author wishes to learn how the US legal system would approach similar tax situations in the Philippines so he could apply it in the practice of law. Labyrinthine as they may be, US tax rules are so well-developed that they are excellent subjects for a comparative study. This paper validates the fact that Philippine and US tax laws on tax-free corporate exchanges have a lot in common. It also shows that in a lot of areas where Philippine law is silent, US tax laws have already devoted extensive treatment ...


Facilitating Auditing’S New Early Warning System: Control Disclosure, Auditor Liability And Safe Harbors, Lawrence A. Cunningham Apr 2004

Facilitating Auditing’S New Early Warning System: Control Disclosure, Auditor Liability And Safe Harbors, Lawrence A. Cunningham

Boston College Law School Faculty Papers

This Article considers the interplay between new auditing standards governing audits of internal control over financial reporting and pre-existing legal standards governing auditor liability for audit failure. The interplay produces skewed liability incentives that, if unadjusted, threaten to impair the objective of this new control-audit regime. The regime’s objective is, in part, to provide an early warning to financial statement users when current financial statements are reliable but control weaknesses indicate material risk of a company’s future inability to produce reliable financial statements. To be meaningful, auditor disclosure of material weaknesses and potential effects is necessary. While liability ...


The Many Faces Of Chapter 11: A Reply To Professor Baird, A. Mechele Dickerson Apr 2004

The Many Faces Of Chapter 11: A Reply To Professor Baird, A. Mechele Dickerson

Faculty Publications

No abstract provided.