Law Commons^™

Capitalism And Freedom — For Whom?: Feminist Legal Theory And Progressive Corporate Law, Kellye Y. Testy

Law and Contemporary Problems

Progressive corporate law has the potential to realign corporate activity and market economies with human benefit. The present state of disruption in the economy is a key moment: with disruption comes the opportunity for change.

Corporate Law Or The Law Of Business?: Stakeholders And Corporate Governance At The End Of History, Adam Winkler

Law and Contemporary Problems

Surely, corporate managers themselves, who must operate within the broader law of business, are aware of the legally imposed duties to protect workders, consumers, and larger communities. Perhaps it is time corporate lawyers caught up to this reality.

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

Law and Contemporary Problems

Delaware has a population less than one-third of one percent of the nation, but it is the state of incorporation for more than fifty percent of US public companies and more than sixty percent of the Fortune 500. Delaware's resulting dominance over the terms of corporate governance in the US has been the subject of one of the grandest debates within corporate law scholarship.

United States Regulation Of Canadian Securities Attorneys Under Sarbanes-Oxley: Exploring Costs And Finding An Optimal Allocation Of Authority, Lauren M. Harper

University of Miami Inter-American Law Review

No abstract provided.

Putting The S Back In Corporate Social Responsibility: A Multi-Level Theory Of Social Change In Organizations, Ruth V. Aguilera, Cynthia A. Williams, Deborah Rupp, Jyoti Ganapathi

Cynthia A. Williams

Tax, Corporate Governance, And Norms, Steven A. Bank

Washington and Lee Law Review

This Article examines the use of federal tax provisions to effect changes in state law corporate governance. There is a growing academic controversy over these provisions, fueled in part by their popularity among legislators as a method of addressing the recent spate of corporate scandals. As a case study on the use of tax to regulate corporate governance, this paper compares and contrasts two measures enacted during the New Deal-the enactment of the undistributed profits tax in 1936 and the overhaul of the tax-free reorganization provisions in 1934-and considers why the former was so much more controversial and less sustainable …

A New Player In The Boardroom: The Emergence Of The Independent Directors' Counsel, Geoffrey C. Hazard Jr., Edward B. Rock

All Faculty Scholarship

Over the last thirty years, the independent directors have occasionally been represented by independent counsel. Instances include: special litigation committees reviewing derivative suits; independent committees in parent subsidiary mergers and MBOs; and internal investigations of misconduct. We predict that, with the additional legal requirements imposed on independent directors by the Sarbanes Oxley Act and related changes to SEC rules and Stock Exchange listing requirements, the independent directors, especially those on the Audit Committee, increasingly will be represented on a continuing basis by independent legal counsel. Out of this will emerge a new figure in the board room: the Independent Directors' …

The Maximands Of Corporate Governance: A Theory Of Values And Cognitive Style, Amir N. Licht

ExpressO

This paper considers the raison d’être of corporations as it is reflected in the maximands of corporate governance. The debate over stockholders’ versus stakeholders’ interests as such maximands has been raging for decades. Advances in economic theory have not only failed to resolve this debate but have established that the problem is graver than what many may have estimated. This paper turns this debate on its head: Instead of asking What or Whose interests should corporations maximize, the real question is Why is this debate taking place at all? Aiming to extend current economic analyses of the maximands issue, this …

Legal And Ethical Duties Of Lawyers After Sarbanes-Oxley, Roger C. Cramton, George M. Cohen, Susan P. Koniak

Cornell Law Faculty Publications

No abstract provided.

Race, Corporate Law, And Shareholder Value, Thomas W. Joo

Thomas W Joo

Racial justice is becoming a taboo subject, which often has to be explained and justified in nominally “race-neutral” terms. The rhetorical strategy of linking diversity to the bottom line is potentially powerful in the current political and cultural climate. But the strategy also has limitations and costs. It is not clear that diversity and improved corporate performance always go hand in hand. Furthermore, as a matter of corporate law doctrine, even strong evidence of a correlation between the two would not necessarily constitute a basis to compel corporations to take any action to further racial justice. Finally, there is a …

The Quiet Transformation Of Corporate Law, Mark J. Loewenstein

Publications

No abstract provided.

Paper Piles To Computer Files: A Federal Approach To Electronic Records Retention And Management, Marilee S. Chan

Santa Clara Law Review

No abstract provided.

A Road Map For Corporate Governance In East Asia, Chee Keong Low

Northwestern Journal of International Law & Business

Much has transpired since the inadequacies of corporate governance practices in East Asia were glaringly exposed by the Asian financial crisis. The crisis brought to the foreground numerous deficiencies, which had common roots in excessive over-leverage as well as the lack of transparency, disclosure and accountability. These issues have been explicitly recognized with the release of the White Paper on Corporate Governance in Asia by the Asian Roundtable on Corporate Governance in June 2003.

By responding in part to the White Paper, this article sets out a "roadmap" whose ultimate objective is the enhancement of the practice of corporate governance …

The New Look Of Shareholder Litigation: Acquisition-Oriented Class Actions, Robert B. Thompson, Randall S. Thomas

Vanderbilt Law Review

Now, however, a new form of shareholder litigation has emerged that is distinct from derivative or securities fraud claims: class action lawsuits filed under state law challenging director conduct in mergers and acquisitions. The empirical data reported in this article show that these acquisition-oriented suits are now the dominant form of corporate litigation and outnumber derivative suits by a wide margin.

Are these acquisition-oriented class actions just another deadbeat in the corporate governance debate? Should policymakers take action to cut back on the development of this new form of shareholder litigation? In this paper, we argue that, just as with …

Worker Ownership In Enron's Wake - Revisiting A Community Development Tactic, Peter R. Pitegoff

Faculty Publications

Worker ownership of business enterprise has long been touted as a vehicle for community economic development. Employee stock ownership plans in leveraged buy-outs, ESOPs and broad-based stock options in going concerns, and worker cooperatives in selected sectors - the experience has varied widely in goals, method, and outcome.

This Article reflects on the continued utility of worker ownership as a component of community development and calls attention to contrasts with conventional corporate governance and goals. Rather than an end in itself or just another way of doing business, worker ownership can be a vital element of a broader job creation, …

The Myth Of The Residual Owner: An Empirical Study, Lynn M. Lopucki

UF Law Faculty Publications

Most bankruptcy scholars who have considered the residual owner approach have come away with a healthy skepticism. But despite its theoretical difficulties, the residual owner approach persists. I attribute this persistence to an empirical assumption that usually remains implicit. In spite of the theoretical difficulties in identifying the single residual owners of bankrupt firms, the scholars who employ residual owner approaches believe that in reality, residual owners exist and can be easily identified inmost cases. Parties may bluster about the uncertainty of firm value and other parties may be compelled to compromise with them in order to avoid an expensive, …

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

GW Law Faculty Publications & Other Works

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 …

A Model Financial Statement Insurance Act, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Building on companion work investigating the efficacy of financial statement insurance (FSI) as an alternative to traditional auditor liability (ssrn.com/abstract=554863), 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 …

Tender Offers By Controlling Shareholders: The Specter Of Coercion And Fair Price, Adam C. Pritchard

Articles

Taking your company private has never been so appealing. The collapse of the tech bubble has left many companies whose stock prices bordered on the stratospheric now trading at small fractions of their historical highs. The spate of accounting scandals that followed the bursting of the bubble has taken some of the shine off the aura of being a public company-the glare of the spotlight from stock analysts and the business press looks much less inviting, notwithstanding the monitoring benefits that the spotlight purports to confer. Moreover, the regulatory backlash against those accounting scandals has made the costs of being …

Reforming Corporate Governance: What History Can Teach Us, Margaret M. Blair

Vanderbilt Law School Faculty Publications

In this Article, I turn to the history of corporate law for insight into the role that the corporate form plays in the organization of business enterprises. I then draw implications from this history for thinking about circumstances and situations in which corporate directors should have unimpeded control over business decisions, versus situations in which shareholders should have more input and control over business decisions. In Part I, I review historical evidence of the rapid growth in demand for the corporate form to organize businesses in the United States during the early nineteenth century. I compare the law that governed …

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 – Enron, WorldCom, Tyco, Adelphia and others – raises an obvious question: Why now? What explains the concentration of financial scandals at this moment in time? Much commentary has rounded up the usual suspects and placed the blame on a decline in business morality, an increase in "infectious greed," or other similarly subjective trends that cannot be reliably measured. Although none of these possibilities can be dismissed out of hand, approaches that simply reason …

Technological Evolution And The Devolution Of Corporate Financial Reporting, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

My claim is that the technology link to the recent disclosure scandals is no coincidence. To be sure, cheating tempts all who seek wealth, in whatever line of business they find themselves. I want to show, however, how the rapid pace of innovation at a number of levels offered motive, opportunity, and rationalization for a downshift in financial reporting norms, which in turn made outright fraud more probable.

Globalizing Corporate Governance: Convergence Of Form Or Function, Ronald J. Gilson

Faculty Scholarship

Globalization has led to a remarkable resurgence in the study of comparative corporate governance. This area of scholarship had been largely the domain of taxonomists, intent on cataloguing the central characteristics of national corporate governance systems, and then classifying different systems based on the specified attributes. The result was an interesting, if perhaps somewhat dry, enterprise. We learned that national corporate governance systems differed dramatically along a number of seemingly important dimensions. Some corporate governance systems, notably those of the United States and other Anglo-Saxon countries, are built on the foundation of a stock market-centered capital market. Other systems, like …

Executive Compensation Reform And The Limits Of Tax Policy, Michael Doran

Georgetown Law Faculty Publications and Other Works

The American Jobs Creation Act of 2004 includes a major attempt to reform the tax rules for deferred compensation arrangements covering corporate managers. This paper examines the tax policy and corporate-governance policy objectives of the reform effort, explores the shortcomings of the legislation, and outlines a different approach for future executive compensation reform.

Gaming Delaware, William W. Bratton

Georgetown Law Faculty Publications and Other Works

Back in 2000, at the World Trade Center in Portland, Oregon, Time Belden and other Enron electricity traders carefully studied the regulations governing California's new electricity market. Belden thought that the complex rules were "prone to gaming." And game them he did. Under one strategy, Enron filed imaginary transmission schedules, creating nonexistent congestion, so as to draw on the rules' provision of payment to alleviate congestion. They called it "Death Star." Then there was "Ricochet," or megawatt laundering, under which Enron circumvented price caps by exporting power out of California, only to bring the power back later, when the State, …

Overcoming Resistance To Diversity In The Executive Suite: Grease, Grit, And The Corporate Tournament, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Once we open the corporate governance/human resources nexus to deeper inquiry, mutual scholarly interest in diversity and discrimination follows naturally. Firms have complex motives to take nondiscrimination and the promotion of diversity seriously. First, at least certain forms of discrimination are both unlawful and socially illegitimate and hence present threats of potential liability and injury to reputation. Second, human resources demands are such that attracting and motivating a diverse workforce is a competitive imperative. At the same time, however, offsetting economic forces may exist that favor subtle forms of discrimination and hostility to diversity, even if intentional and overt racial …