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Full-Text Articles in Business Organizations Law

What Conflict Minerals Rules Tell Us About The Legal Transplantation Of Corporate Social Responsibility Standards Without The State: From The United Nations To The United States To Taiwan, Chang-Hsien (Robert) Tsai, Yen-Nung Wu Dec 2017

What Conflict Minerals Rules Tell Us About The Legal Transplantation Of Corporate Social Responsibility Standards Without The State: From The United Nations To The United States To Taiwan, Chang-Hsien (Robert) Tsai, Yen-Nung Wu

Chang-hsien (Robert) TSAI


To resolve global political and scholarly concerns over conflict minerals (“CM”) produced in the Democratic Republic of the Congo and neighboring regions, two kinds of CM-related disclosure rules (or “CM rules”) come into play in regulating their use: government-mandated laws such as Section 1502 of the Dodd-Frank Act in the United States (hereinafter “Sec. 1502”) and transnational voluntary codes such as the Electronic Industry Citizenship Coalition (“EICC”) Code of Conduct. The creation of both of these CM rules could be attributed to the promotion of such concerns by the United Nations. This article is the first attempt to unpack and ...


The Unicorn Governance Trap, Renee Jones Dec 2017

The Unicorn Governance Trap, Renee Jones

Boston College Law School Faculty Papers

The recent trend of large-scale start-up companies delaying an IPO creates a new kind of corporate governance problem. The prevalence of “unicorns” – privately held companies with market valuations of $1 billion or more – means the disciplinary mechanisms on which investors traditionally relied no longer function to prevent misconduct or mismanagement by unicorn founders. High profile frauds by unicorns like Zenefits and Theranos, and the recent travails of Uber highlight the need to rethink unicorn governance structure. These burgeoning controversies call for reconsideration of legal reforms that allow unicorns to remain for protracted periods in an ill-defined limbo between private and ...


Budzko V. One City Center Associates Limited Partnership: Maine's Unique Approach To Business Owners' Duty To Remove Ice And Snow, Jennifer A.W. Williams Dec 2017

Budzko V. One City Center Associates Limited Partnership: Maine's Unique Approach To Business Owners' Duty To Remove Ice And Snow, Jennifer A.W. Williams

Maine Law Review

In February 2001, the Maine Supreme Judicial Court, sitting as the Law Court, decided for the first time in Budzko v. One City Center Associates Limited Partnership, what duty of care a business landowner owes to business invitees regarding the accumulation of ice and snow during a storm. Terry Budzko slipped and fell as she was exiting One City Center, the building in which her employer leased office space. The steps had not been shoveled or sanded and a snowstorm had been progressing throughout the day. The Law Court, placing heavy reliance on the factor of foreseeability, held that “[b ...


The Crisis In Corporate Governance: 2002 Style, Robert W. Hamilton Dec 2017

The Crisis In Corporate Governance: 2002 Style, Robert W. Hamilton

Maine Law Review

The period from November 1, 2001 to October 1, 2002 has been an astonishing period for corporate governance in many respects. It began with the completely unexpected collapse of Enron Corporation on November 1, 2001, followed almost immediately thereafter by widely publicized downward profit restatements and bankruptcy filings by a significant number of telecommunication companies. Since November 1, 2001, there have been numerous public reports of fraud, misconduct, and scandals by directors of other well-known corporations such as Lucent Technologies, Kmart, Merck & Co., and Rite Aid Corporation. There also have been disclosures of many instances in which corporate officers and ...


The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas Dec 2017

The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas

Faculty Scholarship

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger ...


Corporate Tax Avoidance And Honoring The Fiduciary Duties Owed To The Corporation And Its Stockholders, Eric C. Chaffee, Karie Davis-Nozemack Nov 2017

Corporate Tax Avoidance And Honoring The Fiduciary Duties Owed To The Corporation And Its Stockholders, Eric C. Chaffee, Karie Davis-Nozemack

Boston College Law Review

Corporate tax avoidance is a pressing issue of both national and international concern. Corporations usually claim that they are legally required to engage in aggressive tax strategies. But this Article proves that claim is incorrect when based upon the fiduciary duties owed to the corporation and its stockholders. Directors and other corporate managers often look to the classic case of Dodge v. Ford, which is ubiquitous in corporate law from the boardroom to the courtroom, as a North Star that guides them toward and defines their fiduciary duties to the corporation and its stockholders. In Dodge, the court held, “A ...


The Public Interest In Corporate Settlements, Brandon L. Garrett Nov 2017

The Public Interest In Corporate Settlements, Brandon L. Garrett

Boston College Law Review

Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and ...


Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers Nov 2017

Poke Your Nose Into Your Clients' Businesses (If You Want To Understand Their Contracts), James W. Bowers

Maine Law Review

Thirty years ago Grant Gilmore argued that “Contract” was dead. This lecture, delivered as 2004 Godfrey Scholar-in-Residence at the University of Maine School of Law, considers the cause of death. Since the expired doctrines arose in a common law process, the lecture argues their demise resulted from the failings of lawyers, especially lawyers' commitment to wooden, formalist legal methods. I explore some of the reasons why lawyers became committed to these methods, and argue that even were nineteenth-century formalistic practices resurrected, modern lawyers must still be prepared to understand the potential effects business contexts might have in contract disputes and ...


Maine Corporation Law & Practice, 2nd Edition, George F. Eaton Ii, Kristy M. Smith Nov 2017

Maine Corporation Law & Practice, 2nd Edition, George F. Eaton Ii, Kristy M. Smith

Maine Law Review

In 2001, several members of the Business Law Section of the Maine Bar Association convened the Corporate Law Revision Committee (the Committee), which set out to adapt the Model Business Corporation Act (the Model Act) for use in Maine. Maine's corporation law had not benefited from a comprehensive over-haul since 1971, and notwithstanding periodic updates of specific components of the statutory regime over the years, a thorough and comprehensive revision was needed to keep pace with modern corporate law and practice in the twenty-first century. The Committee's efforts, under the leadership of James B. Zimpritch, Esq., widely acknowledged ...


A Progressive Case For A Universal Transaction Tax, Gary Chartier Nov 2017

A Progressive Case For A Universal Transaction Tax, Gary Chartier

Maine Law Review

Federal Reserve Board chair Alan Greenspan’s recent call for tax simplification and his acknowledgement of arguments for a consumption tax may help to place the question of such taxes, including a value-added tax (VAT), on the national political agenda. If the possibility of imposing a VAT does receive significant national attention, the debate it occasions will obviously, and appropriately, focus in part on a variety of technical questions. But normative questions will likely be at issue as well. A VAT is like a sales tax, but is applied at each stage in a product’s development and not merely ...


Embezzlement - The Next Generation, Joseph A. Divito, Esq., Kevin M. Kearney, Esq. Nov 2017

Embezzlement - The Next Generation, Joseph A. Divito, Esq., Kevin M. Kearney, Esq.

The Catholic Lawyer

No abstract provided.


The Corporation As Sovereign, Allison D. Garrett Oct 2017

The Corporation As Sovereign, Allison D. Garrett

Maine Law Review

In the past two hundred years, sovereignty devolved from the monarch to the people in many countries; in our lifetimes, it has devolved in several significant ways from the people to the corporation. We are witnesses to the erosion of traditional Westphalian concepts of sovereignty, where the chess game of international politics is played out by nation-states, each governing a certain geographic area and group of people. Eulogies for the nation-state often cite globalization as the cause of death. The causa mortis is characterized by the increase in the power and normative influence of supranational organizations, such as the United ...


The "New" Fiduciary Standards Under The Revised Uniform Limited Liability Company Act: More Bottom Bumping From Nccusl, Rutheford B. Campbell Jr. Oct 2017

The "New" Fiduciary Standards Under The Revised Uniform Limited Liability Company Act: More Bottom Bumping From Nccusl, Rutheford B. Campbell Jr.

Maine Law Review

Between 1995 and 2001, the influential National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated iterations of uniform laws pertaining to partnerships, limited partnerships and limited liability companies. One or more of those acts have been widely adopted by state legislatures. Each of the three acts—the Uniform Partnership Act (1997) (hereinafter RUPA), the Uniform Limited Partnership Act (2001) (hereinafter ULPA (2001)), and the Uniform Limited Liability Company Act (1996) (hereinafter ULLCA) —contains identical fiduciary duty provisions. The acts all adopt the same standards for the duty of care and the duty of loyalty, and offer parties the same ...


Amicus Brief: Koshy V. Sachdev, Brian J.M. Quinn, Niloufar Abae, Alex Pena Oct 2017

Amicus Brief: Koshy V. Sachdev, Brian J.M. Quinn, Niloufar Abae, Alex Pena

Brian JM Quinn

No abstract provided.


The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll Oct 2017

The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll

Faculty Scholarship

2018 marks the 60th anniversary of the publication of Franco Modigliani and Merton Miller’s The Cost of Capital, Corporation Finance, and the Theory of Investment. Widely hailed as the foundation of modern finance, their article, which purports to demonstrate that a firm’s value is independent of its capital structure, is little known by lawyers, including legal academics. That is unfortunate because the Modigliani-Miller capital structure irrelevancy proposition (when inverted) provides a framework that can be extremely useful to legal academics, practicing attorneys and judges.


Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel Oct 2017

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.


Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel Oct 2017

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.


Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, Bruce R. Hopkins Oct 2017

Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, Bruce R. Hopkins

The Catholic Lawyer

No abstract provided.


Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, James J. Mcgovern Oct 2017

Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, James J. Mcgovern

The Catholic Lawyer

No abstract provided.


Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp Oct 2017

Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp

Faculty Scholarship

“Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.

Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual ...


Reviving Reliance, Ann M. Lipton Oct 2017

Reviving Reliance, Ann M. Lipton

Fordham Law Review

This Article explores the misalignment between the disclosure requirements of the federal securities laws and the private causes of action available to investors to enforce those requirements. Historically, federally mandated disclosures were designed to allow investors to set an appropriate price for publicly traded securities. Today’s disclosures, however, also enable stockholders to participate in corporate governance and act as a check on managerial misbehavior. To enforce these requirements, investors’ chief option is a claim under the general antifraud statute, section 10(b) of the Securities Exchange Act of 1934. But courts are deeply suspicious of investors’ attempts to use ...


Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic Oct 2017

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when ...


The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin Sep 2017

The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin

Lynnise E. Pantin

The economic, political, and social volatility of the sixties and seventies, out of which clinical legal education was born, has certain mythical qualities for most law students, and perhaps some law professors. America still bears the scars of the economic policies of those previous eras, such as redlining, blockbusting, poverty and urban decay. While the realities of the era may seem out of reach for many of our students, those policies arising out of that era have contributed to the wealth gap in this country, which has worsened over the last twenty years. Now more than ever, society needs social ...


Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon Sep 2017

Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon

Faculty Scholarship

The Dodd-Frank Act of 2010 mandated a number of regulatory reforms including a requirement that large U.S. public companies provide their shareholders with the opportunity to cast a non-binding vote on executive compensation. The “say on pay” vote was designed to rein in excessive levels of executive compensation and to encourage boards to adopt compensation structures that tie executive pay more closely to performance. Although the literature is mixed, many studies question whether the statute has had the desired effect. Shareholders at most companies overwhelmingly approve the compensation packages, and pay levels continue to be high.

Although a lack ...


Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner Sep 2017

Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Newsroom: From Farm To School 09-21-2017, Jill Rodrigues, Roger Williams University School Of Law Sep 2017

Newsroom: From Farm To School 09-21-2017, Jill Rodrigues, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Lewis V. Clarke, Summer L. Carmack Sep 2017

Lewis V. Clarke, Summer L. Carmack

Public Land and Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state ...


Parametric Sound Corp. V. Dist. Ct., 133 Nev. Adv. Op. 59 (Sep. 14, 2017), Lucy Crow Sep 2017

Parametric Sound Corp. V. Dist. Ct., 133 Nev. Adv. Op. 59 (Sep. 14, 2017), Lucy Crow

Nevada Supreme Court Summaries

The Court clarified its holding in Cohen v. Mirage Resorts, Inc. by adopting the Delaware direct harm test to determine whether a shareholder’s claim is direct or derivative. Under the direct harm test, the Court asks (1) who suffered alleged harm, and (2) who would receive benefit from recovery or another remedy? If the shareholder cannot establish a claim without showing injury to the corporation, the shareholder’s claim fails.


In Re Dish Network Derivation Litig., 133 Nev. Adv. Op. 61 (Sept. 14, 2017), Joseph K. Fabbi Sep 2017

In Re Dish Network Derivation Litig., 133 Nev. Adv. Op. 61 (Sept. 14, 2017), Joseph K. Fabbi

Nevada Supreme Court Summaries

The Court determined that the Auerbach test should be applied when a Special Litigation Committee (SLC) files a motion to defer a derivative claim. A derivative claim is dismissible if the SLC was independent and conducted a good faith investigation when it concluded litigation would not be in the company’s best interest.


Supremacy Of Law Or Religion: Congress's Power To Amend The Constitution Bypassing Constraints Of The Constitutional Process, Roman Sankovych Sep 2017

Supremacy Of Law Or Religion: Congress's Power To Amend The Constitution Bypassing Constraints Of The Constitutional Process, Roman Sankovych

DePaul Business and Commercial Law Journal

No abstract provided.