Law Commons^™

Exporting U.S. Corporate Governance Standards Through The Sarbanes-Oxley Act: Unilateralism Or Cooperation?, Minodora D. Vancea

Duke Law Journal

No abstract provided.

The Qualified Legal Compliance Committee: Using The Attorney Conduct Rules To Restructure The Board Of Directors, Jill E. Fisch, Caroline M. Gentile

Duke Law Journal

The Securities and Exchange Commission introduced a new corporate governance structure, the qualified legal compliance committee, as part of the professional standards of conduct for attorneys mandated by the Sarbanes-Oxley Act of 2002. QLCCs are consistent with the Commission's general approach to improving corporate governance through specialized committees of independent directors. This Article suggests, however, that assessing the benefits and costs of creating QLCCs may be more complex than is initially apparent. Importantly, QLCCs are unlikely to be effective in the absence of incentives for active director monitoring. This Article concludes by considering three ways of increasing these incentives.

Securities Fraud As Corporate Governance: Reflections Upon Federalism, Robert B. Thompson, Hillary A. Sale

Vanderbilt Law Review

State law gives corporate managers extremely broad power to direct increasingly large pools of collective business assets. Not surprisingly, economic incentives, norms, markets, and law all work to constrain the breadth of the power and the potential for abuse of what is other people's money.' State corporate law has occupied the center stage in the legal portion of this landscape, with federal securities law playing a supporting role-at least in the academic presentation of the debate. The New Deal's securities legislation eschewed a general federal corporations statute in favor of a more focused federal role emphasizing disclosure and antifraud protections …

Reconsidering The Importance Of Law In Japanese Corporate Governance: Evidence From The Daiwa Bank Shareholder Derivative Case, Bruce E. Aronson

Cornell International Law Journal

No abstract provided.

Creditors' Ball: The "New" New Corporate Governance In Chapter 11, David A. Skeel Jr.

All Faculty Scholarship

In the 1980s and early 1990s, many observers believed that the American corporate bankruptcy laws were desperately inefficient. The managers of the debtor stayed in control as "debtor in possession" after filing for bankruptcy, and they had the exclusive right to propose a reorganization plan for at least the first four months of the case, and often far longer. The result was lengthy cases, deteriorating value and numerous academic proposals to replace Chapter 11 with an alternative regime. In the early years of the new millennium, bankruptcy could not look more different. Cases proceed much more quickly, and they are …

Green Business: Should We Revoke Corporate Charters For Environmental Violations?, Mitchell F. Crusto

Louisiana Law Review

No abstract provided.

The A.A. Sommer, Jr. Annual Lecture On Corporate Securities & Financial Law: Post-Enron America: An Sec Perspective, Harvey Goldschmid, William Treanor, John F.X. Peloso, Jill Fisch

Fordham Journal of Corporate & Financial Law

No abstract provided.

Keynote Address, Susan S. Bies, Alan Rechtschaffen

Fordham Journal of Corporate & Financial Law

No abstract provided.

Should Congress Repeal Securities Class Action Reform?, Adam C. Pritchard

Other Publications

The Private Securities Litigation Reform Act of 1995 was designed to curtail class action lawsuits by the plaintiffs’ bar. In particular, the high-technology industry, accountants, and investment bankers thought that they had been unjustly victimized by class action lawsuits based on little more than declines in a company’s stock price. Prior to 1995, the plaintiffs’ bar had free rein to use the discovery process to troll for evidence to support its claims. Moreover, the high costs of litigation were a powerful weapon with which to coerce companies to settle claims. The plaintiffs’ bar and its allies in Congress have called …

Nationbuilding 101: Reductionism In Property, Liberty, And Corporate Governance, O. L. Reed

Vanderbilt Journal of Transnational Law

In this Article, Professor Reed re-examines the importance of property as a formal legal institution. He continues by arguing that central to creating property is the right to exclude others from resources acquired without force, theft, or fraud. In countries where this right has been firmly established, per capita income far exceeds that of countries lacking a strong right to exclude. Professor Reed then asserts the importance to nation builders of appreciating the virtual semantic equivalence of the terms "property" and "liberty." Finally, he argues that both the specific and broad senses of corporate governance can be reduced to property …

Corporate Governance And Sustainable Peace: An Insider's View, Marina N. Whitman

Vanderbilt Journal of Transnational Law

The Author brings her 30 years of experience as a member of numerous corporate boards of directors to bear on the relationship between corporate governance and sustainable peace. In the Author's experience, over the last three decades corporate boards have become more diverse not only in terms of race and gender, but also through a greater focus on international participation. This diversity has led to concern for a broader set of stakeholders and, in many cases, these boards are presently conducting the affairs of their corporations in a more socially-responsible fashion. Despite these gains, however, the Author concedes that recent …

Just Do It: An Antidote To The Poison Pill, Julian Velasco

Journal Articles

The poison pill is the most powerful defense against hostile takeovers. It can render a company takeover-proof, or nearly so. Efforts at developing an antidote have focused largely on shareholder-adopted bylaws, but the legality of such proposals has been questioned by many. In any event, shareholder-adopted bylaws have not been very successful in eliminating poison pills thus far. In order to effect takeovers, hostile bidders cannot rely on the courts or the target company's shareholders; they can rely only on themselves. In this article, I propose a strategy for hostile bidders to counteract the poison pill and to consummate hostile …

The Provisional Director Remedy For Corporate Deadlock: A Proposed Model Statute, Susanna M. Kim

Washington and Lee Law Review

No abstract provided.

Adapting Corporate Governance For Sustainable Peace, Timothy L. Fort, Cindy A. Schipani

Vanderbilt Journal of Transnational Law

Acts of violence toward multinational corporations have important consequences for the way these companies will need to structure their approach to international business. This Article proposes four contributions that corporations can make to sustainable peace. By incorporating sustainable peace as a business objective, multinational corporations may be able to blend extant corporate governance principles with a goal that can significantly contribute to the reduction of violence in society.

Corporate Governance And Sustainable Peace, Timothy L. Fort, Cindy A. Schipani

Vanderbilt Journal of Transnational Law

The Articles and Commentary in this Symposium are another step in a series of conferences exploring dimensions of business influence on sustainable peace. As is often the case with new intellectual initiatives, each step seems to open new doors of insight and new sets of questions. Other presentations delivered at this conference included discussions of how one could design architectural plans in keeping with company goals, while others focused on the development of compassion, forgiveness, and voice. Still others connected the topic to notions of ethical compliance models, dispute resolution, corporate citizenship, and economic development.

Beyond these notions, of course, …

Director's Duties In A Post-Enron World: Why Language Matters, Margaret M. Blair

Vanderbilt Law School Faculty Publications

This essay observes that, in the face of corporate scandals of the last few years, a number of prominent advocates for shareholder primacy have retreated to the position that directors and officers should attempt to maximize long run share value performance, rather than short term value. But the mantra of share value maximization has no distinctive meaning and policy implications if it is not interpreted to mean maximization of short term value. This is because the actions required to maximize share value in the long run are indistinguishable in practice from actions taken in pursuit of other more broadly-stated goals …

Corporate Constitutionalism: Antitakeover Charter Provisions As Pre-Commitment, Marcel Kahan, Edward B. Rock

All Faculty Scholarship

Constitutions constitute a polity and create and entrench power. A corporate constitution - the governance choices incorporated in state law and the certificate of incorporation - resembles a political constitution. Delaware law allows parties to create corporations, to endow them with perpetual life, to assign rights and duties to "citizens" (directors and shareholders), to adopt a great variety of governance structures, and to entrench those choices. In this Article, we argue that the decision to endow directors with significant power over decisions whether and how to sell the company is a constitutional choice of governance structure. We then argue that …

Enron - When All Systems Fail: Creative Destruction Or Roadmap To Corporate Governance Reform, Douglas M. Branson

Villanova Law Review

No abstract provided.

Observations On The Role Of Commodification, Indpendence, And Governance In The Accounting Industry, Jonathan Macey, Hillary A. Sale

Villanova Law Review

No abstract provided.

The Sarbanes-Oxley Act And The Reinvention Of Corporate Governance, Lawrence E. Mitchell

Villanova Law Review

No abstract provided.

Ethics, Law Firms, And Legal Education, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

A rash of recent corporate scandals has once again put professional ethics in the spotlight. It's hard to pick up the Wall Street Journal each day and not read that authorities have launched a new investigation or that additional indictments are imminent. Stories of financial fraud and outright looting have galvanized the public and shaken the economy. What ethical lessons can we draw from these events? Two explanations seem especially prominent. The first is a story of individuals without an adequate moral compass. Some people's greed and ambition were unchecked by any internal ethical constraints. For such deviants, no amount …

Too Busy To Mind The Business? Monitoring By Directors With Multiple Board Appointments, Stephen P. Ferris, Murali Jagannathan, Adam C. Pritchard

Articles

We examine the number of external appointments held by corporate directors. Directors who serve larger firms and sit on larger boards are more likely to attract directorships. Consistent with Fama and Jensen (1983), we find that firm performance has a positive effect on the number of appointments held by a director. We find no evidence that multiple directors shirk their responsibilities to serve on board committees. We do not find that multiple directors are associated with a greater likelihood of securities fraud litigation. We conclude that the evidence does not support calls for limits on directorships held by an individual.

Corporate Governance In China: An Overview, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate governance (gongsi zhili) is a concept whose time seems definitely to have come in China. Chinese definitions of corporate governance in the abstract tend to cover the system regulating relationships among all parties with interests in a business organization, usually spelling out shareholders as a particularly important group (e.g., Liu, 1999; Yin, 1999). But Chinese corporate governance discourse in practice focuses almost exclusively on agency problems and within only two types of firms: state-owned enterprises (SOEs), particularly after their transformation into one of the corporate forms provided for under the Company Law,1 and listed companies, which must be companies …

The Sarbanes-Oxley Yawn: Heavy Rhetoric, Light Reform (And It Might Just Work), Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

A thorough examination of the much ballyhooed Sarbanes-Oxley Act reveals dominantly a federal codification of extant rules, regulations, practices, and norms. Despite advertising it as "the most far-reaching reforms of American business practices since the time of FDR," a soberly apolitical view sees the Act as more sweep than reform. Important are provisions calling for nine studies; redundant but much publicized were the certification requirements imposed during the summer of 2002; other moves are mere patchwork responses to precise transgressions present in the popularized scandals. The Act is far from trivial, however. A silver bullet relates to the structure and …

Shareholder Value And Auditor Independence, William W. Bratton

Georgetown Law Faculty Publications and Other Works

This Article questions the practice of framing problems concerning auditors' professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal's control and cannot act independently. For the same reason, auditors' duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …

Risk Management And Organizational Governance: The Case Of Enron, Robert Eli Rosen

Articles

No abstract provided.

What Caused Enron? A Capsule Social And Economic History Of The 1990s, John C. Coffee Jr.

Faculty Scholarship

The sudden explosion of corporate accounting scandals and related financial irregularities that burst over the financial markets between late 2001 and the first half of 2002 e.g., Enron, WorldCom, Tyco, Adelphia, and others-raises an obvious question: why now? What explains the sudden concentration of financial scandals at this moment in time? Much commentary has rounded up the usual suspects and blamed the scandals on a decline in business morality, “infectious greed,” and similar subjective trends that cannot be reliably measured.

The Aba Task Force On Corporate Responsibility And The 2003 Changes To The Model Rules Of Professional Conduct, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.