Law Commons^™

Redefining Corporate Law, David K. Millon

David K. Millon

None available.

Tax Laws Of Indiana As They Relate To Corporations For Profit, Harriet W. Bouslog, Robert C. Brown

Dr Robert Brown

No abstract provided.

Who Let You Into The House?, Lawrence Hamermesh

Lawrence A. Hamermesh

Recent Congressional corporate governance initiatives have reallocated to independent directors the functions of hiring and supervising the work of certain “gatekeepers,” and some have proposed such a reallocation with respect to general counsel, as a means to address cognitive biases and capture by senior management that may prevent inside counsel from identifying and preventing corporate misconduct. That proposal, however, does not sufficiently account for the positive effect on corporate conduct arising from a close relationship of trust and confidence between general counsel and the CEO or other senior managers. Eliminating such a relationship is likely to undermine access to internal …

Beyond Incentives: Making Corporate Whistleblowing Moral In The New Era Of Dodd-Frank Act "Bounty Hunting", Matt A. Vega

Matt A Vega

In this article, I examine the SEC's new whistleblower bounty program authorized by the Dodd-Frank Act. Under the program, which went into effect last year, the SEC is required to pay a bounty to whistleblowers who voluntarily provide the agency with "original information" about a potential securities law violation that leads to a successful SEC or "related" enforcement action and that results in monetary sanctions of sufficient size. When the average SEC settlement is over $18.3 million, whistleblowers can expect the average bounty to be well in the range of $2-5 million.

My contention is that this new program is …

New Directions In Corporate Law Communitarians, Contractarians, And The Crisis In Corporate Law, David K. Millon

David K. Millon

No abstract provided.

Theories Of The Corporation, David Millon

David K. Millon

No abstract provided.

Widener Law, The Institute Of Delaware Corporate & Business Law, On-Line Symposium: Default Fiduciary Duties In Llcs And Lps, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto

David N Cassuto

In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict i f some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict. This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the …

A U.S./Canadian Dialogue About The Current State Of Poison Pills, Lawrence A. Hamermesh, Pierre-Yves Leduc

Lawrence A. Hamermesh

No abstract provided.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

New Owners And Old Managers: Lessons From The Socialist Camp, Richard M. Buxbaum

Richard M. Buxbaum

No abstract provided.

The Foundation Of Rectification In The Corporate Opportunity Doctrine, Xueping Chen

xueping chen

Professor Xueping Chen Law School, Southcentral University for Nationalities, Wuhan, Hubei, China 430074 Academic visitor, Law Faculty, Oxford University, Oxford, UK, OX1 3UL Correspondance:Law School, Southcentral University for Nationalities, Minyuan Road 708, Hongshan District,Wuhan, Hubei, China 430074 xpchen189@126.com or xueping.chen@law.ox.ac.uk Abstract: In this paper, I discuss the proposal that directors or officers’ breaching the loyalty duty to the corporation by usurping the corporate opportunities is a wrong which ought to rectify according to the corrective justice. My aims are to clarify that usurping a corporate opportunity is a civil wrong and to discuss the rationale of the Corporate Opportunity Doctrine …

Employers United: An Empirical Analysis Of Corporate Political Speech In The Wake Of The Affordable Care Act, Elizabeth Weeks Leonard, Susan Scholz, Raquel Meyer Alexander

Elizabeth A. Weeks

Is the Patient Protection and Affordable Care Act (ACA) bad for business? Did the countries' most prominent companies game the Securities and Exchange Commission (SEC) disclosure process to make negative political statements about ObamaCare? Immediately following the ACA's enactment on March 23, 2010, a number of companies drew scrutiny for issuing SEC filings writing off millions – and in AT&T's case, one billion dollars – against expected earnings for 2010 alone, based on a single, discrete tax-law change in the ACA. Congressional and Administration officials accused the firms of being “irresponsible” and using “big numbers to exaggerate the health reform's …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

The Cooperative As Proletarian Corporation: Property Rights Between Corporation, Cooperatives And Globalization In Cuba, Larry Cata Backer

Larry Cata Backer

Since the 1970s, the issue of the relationship between productive property, the state and the individual has been contested in Marxist Leninist states. While China has moved to a more managerial form of relationship, states like Cuba continue to adhere to more strict principles of state control of productive property. However, in the face of recent financial upheavals and Cuba’s long effort to create alternative forms of regional economic engagement, Cuba’s approach to economic regulation has been undergoing limited change. This essay considers the form and scope of Cuban approaches to economic reorganization in the wake of the adoption of …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. In a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on M&A activity and its poor corporate policy implications. This has led many academics and practitioners to ask whether Omnicare was a normatively …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. Indeed, much of the criticism originated from the court itself; in a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on merger and acquisition activity and its poor corporate policy implications. This has …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. Indeed, much of the criticism originated from the court itself; in a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on merger and acquisition activity and its poor corporate policy implications. This has …

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51

Gabriel O Aitsebaomo

Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

Cadbury Twenty Years On, Cally Jordan

Cally Jordan

This year marks the twentieth anniversary of the publication of the Cadbury Report, one of the most significant events in modern corporate governance. The Cadbury Report, and its simple two page “best practices”, triggered a global debate on corporate governance. “Cadbury” codes of corporate governance spread like wildfire. The legacy of the Cadbury Report lives on in the UK with no diminution in the appeal of its voluntary code/comply or explain approach to corporate governance. But there are several clouds looming on the horizon. Comply or explain and voluntary codes of corporate governance appear to have run their course elsewhere …

Charging Less To Make More: The Causes And Effects Of The Corporate Inversion Trend In The U.S. And The Implications Of Lowering The Corporate Tax Rate, Tyler Dumler

Tyler M. Dumler

This article explores the effect lowering the corporate tax rate would have on U.S. multinational corporations (MNCs). Instead of creating patchwork legislation, such as section 7874 to the Internal Revenue Code, this article advocates adopting changes to the underlying problems which give MNCs incentives to expatriate. By attacking the underlying problems of corporate tax legislation, this article concludes that lowering the corporate tax rate is the long-term solution for the U.S. government to address MNC tax avoidance.

Major Violations For The Ncaa: How The Ncaa Can Apply The Dodd-Frank Act To Reform Its Own Corporate Goverance Scheme, Jason Rudderman

Jason Rudderman

This paper applies the Dodd-Frank Act, and specifically its corporate governance laws, to the National Collegiate Athletic Associate (NCAA). The NCAA has experienced rapid, largely uncontrolled growth over the past decade that has led to an influx of corporate governance and regulatory problems within its member institutions. As with financial institutions, the influx of money itself is not the inherent problem. Money in college athletics is good. When large schools succeed, they help support smaller schools in their conference through revenue sharing plans. It is the lack of control and governance mechanisms regulating the influx of money that poses the …

The Evolution Of The Supreme Court’S Rule 10b-5 Jurisprudence:, Charles W. Murdock

Charles W. Murdock

Summary: The Evolution of the Supreme Court’s Rule 10b-5 Jurisprudence:

Protecting Fraud at the Expense of Investors

This article traces the evolution of Supreme Court jurisprudence over the past forty years through the prism of Rule 10b-5. It uses four “trilogies” to develop this evolution. At the start of the 1970s, the liberal trend characterized by the Warren Court still prevailed. An implied private cause of action was still in favor and litigators were viewed as private attorneys general, enforcing the securities laws to further the policy of protecting investors.

The expansion of Rule 10b-5 was slowed and more judicial …

Law Firm Ethics In The Shadow Of Corporate Social Responsibility, Christopher J. Whelan

Christopher J Whelan

Corporate clients, and in particular global corporations, are gaining influence and control of law firm practices in ways that would have been unthinkable in the past. Through various mechanisms, such as ‘Outside Counsel Guidelines,’ ‘Codes of Practice’ and the like, corporate clients set standards which lawyers are expected to follow. We have examined over 20 sets of Guidelines and conducted over 20 interviews with outside, in-house and general counsel.

The topics incorporated in the guidelines vary to a great extent. However, while some clearly protect the direct and immediate interests of the client – provisions relating to billing and conflicts …

Janus Capital Group V. First Derivative Traders: A Call To Rewind Securities Law Jurisprudence To Protect Investors – A Practitioner’S Guide And Policy Perspective, Max Schatzow

Max Schatzow

As of 1989, the federal courts were inundated with more Rule 10b-5 litigation than all of the other provision of the federal securities law combined. The Securities Enforcement Commission’s (“SEC”) Rule 10b-5 (“Rule 10b-5,” “the rule,” or “10b-5”) makes it unlawful for certain persons to make material misrepresentations. On June 12, 2011, The Supreme Court in Janus Capital held that those certain persons were those who have the “ultimate authority” over a statement. The Supreme Court in Janus left many litigators and regulators in the securities field grasping for answers. A progeny of cases have been tried under Rule 10b-5 …

Human Rights Compliance And Accountability For U.S. Multinational Enterprises: A Principled Step Forward After Sosa And Kiobel, Paul Regan

Paul L Regan

This article proposes a Congressional statutory solution to resolve when a multinational corporation can be liable under the Alien Tort Statute on a claim for human rights abuses arising from a corporation’s overseas business operations. Under this proposal a U.S. multinational would be directly liable for human rights violations of its overseas subsidiary where it (1) failed to ensure that its overseas subsidiary had in place a reasonably effective and functioning human rights compliance system or (2) acquired knowledge of ongoing human rights violations by its overseas subsidiary and failed to take meaningful corrective measures in a timely way.

"A Necessary Cost Of Freedom"? The Incoherence Of Sorrell V. Ims, Tamara R. Piety

Tamara R. Piety

No abstract provided.