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Business Organizations Law

2012

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Articles 1 - 30 of 101

Full-Text Articles in Law

Mapping The Future Of Insider Trading Law: Of Boundaries, Gaps, And Strategies, John C. Coffee Jr. Dec 2012

Mapping The Future Of Insider Trading Law: Of Boundaries, Gaps, And Strategies, John C. Coffee Jr.

Faculty Scholarship

The current law on insider trading is arbitrary and unrationalized in its limited scope in a number of respects. For example, if a thief breaks into your office, opens your files, learns material, nonpublic information, and trades on that information, he has not breached a fiduciary duty and is presumably exempt from insider trading liability. But drawing a line that can convict only the fiduciary and not the thief seems morally incoherent. Nor is it doctrinally necessary. The basic methodology handed down by the Supreme Court in SEC v. Dirks and United States v. O’Hagan dictates (i) that a ...


Does Stakeholder Outrage Constrain Executive Compensation? Evidence From The Determinants Of University President Pay, Brian D. Galle, David I. Walker Dec 2012

Does Stakeholder Outrage Constrain Executive Compensation? Evidence From The Determinants Of University President Pay, Brian D. Galle, David I. Walker

Boston College Law School Faculty Papers

We analyze the determinants of the compensation of private college and university presidents from 1999 through 2007. We find that the fraction of institutional revenue derived from current donations is negatively associated with compensation and that presidents of religiously-affiliated institutions receive lower levels of compensation. Looking at the determinants of contributions, we find a negative association between presidential pay and subsequent donations. We interpret these results as consistent with the hypotheses that donors to nonprofits are sensitive to executive pay and that stakeholder outrage plays a role in constraining that pay. We discuss the implications of these findings for the ...


Dynamic Fiduciary Duties, Andrew S. Gold Dec 2012

Dynamic Fiduciary Duties, Andrew S. Gold

Faculty Scholarship

No abstract provided.


The Supreme Court's Theory Of The Fund, William Birdthistle Nov 2012

The Supreme Court's Theory Of The Fund, William Birdthistle

All Faculty Scholarship

Just as the firm has long served as the foundational molecule of the U.S. capitalist economy, theories of the firm have for more than a century dominated legal and economic discourse. Ever since Ronald Coase published The Nature of the Firm in 1937 and asked why firms should exist in an efficient market, classicists and neoclassicists have competed to develop theories — predominantly managerialist and contractual — that best explain the structure and behavior of business organizations.

The investment fund, by contrast, has languished at the margins of corporate theory, relegated as simply a minor, if somewhat curious, example of the ...


Partnership Tax Planning Without Falling Into The Canal (Outline), Andrea M. Whiteway Nov 2012

Partnership Tax Planning Without Falling Into The Canal (Outline), Andrea M. Whiteway

William & Mary Annual Tax Conference

No abstract provided.


Partnership Tax Planning Without Falling Into The Canal (Slides), Andrea M. Whiteway Nov 2012

Partnership Tax Planning Without Falling Into The Canal (Slides), Andrea M. Whiteway

William & Mary Annual Tax Conference

No abstract provided.


Introduction To M&A Tax: Due Diligence Traps In S Corp Acquisitions (Slides), Robert G. Mcelroy, William M. Richardson Nov 2012

Introduction To M&A Tax: Due Diligence Traps In S Corp Acquisitions (Slides), Robert G. Mcelroy, William M. Richardson

William & Mary Annual Tax Conference

No abstract provided.


Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp Oct 2012

Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court has now agreed to review the Eleventh Circuit's decision in Phoebe-Putney, which held that a state statute permitting a hospital authority to acquire hospitals implicitly authorized such acquisitions when they were anticompetitive – in this particular case very likely facilitating a merger to monopoly. Under antitrust law’s “state action” doctrine a state may in fact authorize such an acquisition, provided that it “clearly articulates” its desire to approve an action that would otherwise constitute an antitrust violation and also “actively supervises” any private conduct that might fall under the state’s regulatory scheme.

“Authorization” in the ...


Fraley V. Facebook, United States District Court For The Northern District Of California Oct 2012

Fraley V. Facebook, United States District Court For The Northern District Of California

Historical and Topical Legal Documents

No abstract provided.


The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Kelli A. Alces, Brian D. Galle Oct 2012

The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Kelli A. Alces, Brian D. Galle

Scholarly Publications

No abstract provided.


The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Kelli A. Alces, Brian D. Galle Oct 2012

The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Kelli A. Alces, Brian D. Galle

Boston College Law School Faculty Papers

The average publicly-traded firm pays its CEO millions of dollars in deferred compensation and defined-benefit pension commitments. Scholars debate whether firms use these payments to efficiently align managerial interests with those of creditors, or whether instead they represent “hidden” forms of rent extraction. Yet others recommend these forms of debt-like incentive compensation, sometimes called “inside debt,” as a way of controlling risk-taking in systemically important financial institutions.

We argue instead that inside debt is unlikely to be efficient in either setting. Inside debt is costlier and more complex than other tools for managing risk, such as covenants or simply cutting ...


The Lessons From Libor For Detection And Deterrence Of Cartel Wrongdoing, Rosa M. Abrantes-Metz, D. Daniel Sokol Oct 2012

The Lessons From Libor For Detection And Deterrence Of Cartel Wrongdoing, Rosa M. Abrantes-Metz, D. Daniel Sokol

UF Law Faculty Publications

In late June 2012, Barclays entered into a $453 million settlement with UK and U.S. regulators due to its manipulation of Libor between 2005 and 2009. Among the agencies that investigated Barclays is the Department of Justice Antitrust Division (as well as other antitrust authorities and regulatory agencies from around the world). Participation in a price fixing conduct, by its very nature, requires the involvement of more than one firm.

We are cautious to draw overly broad conclusions until more facts come out in the public domain. What we note at this time, based on public information, is that ...


Spacs And The Jobs Act, Usha Rodrigues Oct 2012

Spacs And The Jobs Act, Usha Rodrigues

Scholarly Works

The law has long confined the average investor to trading in public securitieswhile allowing wealthy—or “accredited”—individual investors access to a panoply of private securities, including investment vehicles such as hedge funds and private equity funds. Nevertheless, pressure to let the general public into private equity has been growing. Two forces have contributed to this mounting pressure. First, public investors are eager to try their hand at investing in private enterprise. Second, private firms need capital. In the face of these forces, the sharp line that has long separated public and private firms has become increasingly blurred

Consider the ...


Virtue, Vice, And The Globalization Of World Economies, Stephen Preacher Sep 2012

Virtue, Vice, And The Globalization Of World Economies, Stephen Preacher

Faculty Publications and Presentations

This study postulates that the recent world financial crisis, symptomatically manifested in the financial markets, is more fundamentally the result of a systemic disregard for moral constraints. This has occurred at macroeconomic levels within the industrialized nations and has pervaded the global economy. Moral relativism has become the dominant ethical system in society and government, and has undermined the virtuous ideals and self-restraint that foster the benefits of capitalism. Coupled with advances in technology and globalization, the effect of vices such as avarice, irresponsibility, excessive risk tolerance and criminal activities have been exacerbated. Government manipulation and intervention has further served ...


A Tort Statute, With Aliens And Pirates, Eugene Kontorovich Aug 2012

A Tort Statute, With Aliens And Pirates, Eugene Kontorovich

NULR Online

No abstract provided.


Punishing Penn State, Amy J. Sepinwall, Scott Rosner Jul 2012

Punishing Penn State, Amy J. Sepinwall, Scott Rosner

Legal Studies and Business Ethics Papers

The NCAA has imposed upon Penn State’s football program a series of punitive sanctions some deem worse than the (so-called) death penalty. The sanctions respond to Penn State’s failure to report and prevent Jerry Sandusky’s sex abuse crimes. We believe that Penn State deserves to be sanctioned, and we agree with the corrective sanctions the NCAA has imposed. But we fear that at least some of the punitive sanctions Penn State has received may be inappropriate.


Strengthening Investment In Public Corporations Through The Uncorporation, Kelli A. Alces Jul 2012

Strengthening Investment In Public Corporations Through The Uncorporation, Kelli A. Alces

Scholarly Publications

No abstract provided.


Contract And Dispossession, Deborah W. Post Jul 2012

Contract And Dispossession, Deborah W. Post

Scholarly Works

This Essay, part of a collection of essays on the same theme, argues that contract law has become an instrument of oppression and dispossession rather than liberation. Having offered a critique, the challenge then is to consider whether it is possible to restore the liberatory potential of contract. The symposium, Post-Marxism, Post-Racialism & Other Fables of the Dispossession, was an invitation to consider the contemporary relevance of Marxist theory.

There are two reference points in this cultural critique. One is the importance of social position in a jurisprudence that embraces objectivity; the uncritical and unreflective reliance on hegemonic social practices, codes and conventions in determining whether the parties to an agreement meant or intended it to be legally enforceable. Contract law recognizes and regulates status relationships. The resort by judges to hegemonic conceptions of status results in dispossession when ...


Uncertainty, Dangerous Optimism, And Speculation: An Inquiry Into Some Limits Of Democratic Governance, Lynn A. Stout Jul 2012

Uncertainty, Dangerous Optimism, And Speculation: An Inquiry Into Some Limits Of Democratic Governance, Lynn A. Stout

Cornell Law Faculty Publications

People are often optimistic. Nearly fifty percent of marriages end in divorce, but one survey found that 100 percent of individuals planning to get married believed they would never get divorced. Most people think they drive better than the average driver, and at one university, ninety-four percent of professors placed themselves in the top fifty percent in terms of teaching skills. We often seem to think we are like the youth of Garrison Keillor’s fictional hometown Lake Wobegon, where “all the children are above average.”

This is not always a bad thing. Optimism can be advantageous. Without optimism, Columbus ...


Some Thoughts On The Porous Boundary Between Ordinary And Extraordinary Fraud, Miriam H. Baer Jul 2012

Some Thoughts On The Porous Boundary Between Ordinary And Extraordinary Fraud, Miriam H. Baer

Faculty Scholarship

No abstract provided.


Theories Of The Firm And Judicial Uncertainty, Andrew S. Gold Jul 2012

Theories Of The Firm And Judicial Uncertainty, Andrew S. Gold

Faculty Scholarship

No abstract provided.


The Greatest Mall There Never Was: Assessing The Failed Attempt To Build The New Haven Galleria, Jeremy Kutner May 2012

The Greatest Mall There Never Was: Assessing The Failed Attempt To Build The New Haven Galleria, Jeremy Kutner

Student Legal History Papers

In late 1995, a dream that had fixated New Haven’s leadership since the 1960’s was coming to an end. Long buffeted by a population and wealth exodus to the suburbs, leaders had looked to a glittery downtown shopping mall to draw people, and their money, back to the city. Downtown was remade to accommodate retail heavy hitters: Macy’s, Malley’s, and the Chapel Square Mall. But it wasn’t working. Macy’s was gone. Chapel Square was hemorrhaging tenants. And so, after decades of public effort to make large-scale retail work downtown, the city’s mayor was ...


Shareholder Eugenics In The Public Corporation, Edward B. Rock May 2012

Shareholder Eugenics In The Public Corporation, Edward B. Rock

Faculty Scholarship at Penn Law

In a world of active, empowered shareholders, the match between shareholders and public corporations can potentially affect firm value. This article examines the extent to which publicly held corporations can shape their shareholder base. Two sorts of approaches are available: direct/recruitment strategies; and shaping or socialization strategies. Direct/recruitment strategies through which “good” shareholders are attracted to the firm include: going public; targeted placement of shares; traditional investor relations; the exploitation of clientele effects; and de-recruitment. “Shaping” or “socialization” strategies in which shareholders of a “bad” or unknown type are transformed into shareholders of the “good” type include: choice ...


The Destructive Ambiguity Of Federal Proxy Access, Jill E. Fisch May 2012

The Destructive Ambiguity Of Federal Proxy Access, Jill E. Fisch

Faculty Scholarship at Penn Law

After almost seventy years of debate, on August 25, 2010, the SEC adopted a federal proxy access rule. This Article examines the new rule and concludes that, despite the prolonged rule-making effort, the new rule is ambiguous in its application and unlikely to increase shareholder input into the composition of corporate boards. More troubling is the SEC’s ambiguous justification for its rule which is neither grounded in state law nor premised on a normative vision of the appropriate role of shareholder nominations in corporate governance. Although the federal proxy access rule drew an unprecedented number of comment letters and ...


Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett Apr 2012

Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett

Cornell Law Faculty Working Papers

One way or another, the European Monetary Union (EMU) is apt to endure. The prospect of continuation under the precise contours of the regime as we presently find it, however, is anything but certain. Hence many investors and other actual or prospective contract parties are likely to remain skittish until matters grow clearer. This skittishness, importantly, can itself hamper the prospect of expeditious European recovery. Addressing particular sources of ongoing uncertainty about EMU prospects can itself therefore aid in the project of recovery.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty ...


The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Brian D. Galle, Kelli A. Alces Apr 2012

The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Brian D. Galle, Kelli A. Alces

Boston College Law School Faculty Papers

In this working paper, we present empirical evidence on the determinants of firms' use of executive pensions and deferred compensation, using a large panel of 1300+ firms over 3 years. We find that measures of managerial power and directors' preference for avoiding risk predict the size of pensions, and find little support for the finance literature's claim that pensions are an efficient form of contracting for firms with large debts. We also offer several theoretical reasons to doubt that "inside debt" such as pensions could serve effectively to align managers' incentives with those of creditors.


Summary Of Weddell V. H2o, Inc., 128 Nev. Adv. Op. No. 9, Matthew Vantusko Mar 2012

Summary Of Weddell V. H2o, Inc., 128 Nev. Adv. Op. No. 9, Matthew Vantusko

Nevada Supreme Court Summaries

The Court considered an appeal from an action seeking contract, tort, and declaratory relief.


When “Not Getting Caught” Is Not Enough: Preventing Foreign Corrupt Practices Act Violations And Liability In International Project Finance, Clinton R. Long Mar 2012

When “Not Getting Caught” Is Not Enough: Preventing Foreign Corrupt Practices Act Violations And Liability In International Project Finance, Clinton R. Long

Pace International Law Review Online Companion

Reinhard Siekaczek, a skeptical former accountant of Siemens A.G., expressed little optimism that Siemens’ violations of German law and the U.S. Foreign Corrupt Practices Act’s (“FCPA”) prohibitions against bribing foreign officials would deter others in a world full of corruption. Siekaczek states, “[p]eople will only say about Siemens that they were unlucky and that they broke the 11th commandment. The 11th commandment is: ‘Don’t get caught.’” At Siemens, Siekaczek participated in large-scale bribery by helping maintain a budget of tens of millions of dollars per year that was dedicated to bribing foreign officials, what one ...


How Do Start-Ups Obtain Their Legal Services?, Darian M. Ibrahim Mar 2012

How Do Start-Ups Obtain Their Legal Services?, Darian M. Ibrahim

Faculty Publications

This Essay is the first to examine, using responses to online surveys, the use of in-house versus outside counsel by rapid-growth start-up companies. It also explores, from the vantage point of the start-up’s entrepreneur, some reasons for that choice. The Essay tests several hypotheses derived from the economic and entrepreneurship literatures about the benefits of in-house versus outside counsel in the unique context of start-up firms.


Toward A Public Enforcement Model For Directors' Duty Of Oversight, Renee M. Jones, Michelle Welsh Mar 2012

Toward A Public Enforcement Model For Directors' Duty Of Oversight, Renee M. Jones, Michelle Welsh

Boston College Law School Faculty Papers

This Article proposes a public enforcement model for the fiduciary duties of corporate directors. Under the dominant model of corporate governance, the principal function of the board of directors is to oversee the conduct of senior corporate officials. When directors fail to provide proper oversight, the consequences can be severe for shareholders, creditors, employees, and society at large.

Despite general agreement on the importance of director oversight, courts have yet to develop a coherent doctrine governing director liability for the breach of oversight duties. In Delaware, the dominant state for U.S. corporate law, the courts tout the importance of ...