Business Organizations Law Commons^™

The Irrational Actor In The Ceo Suite: Implications For Corporate Governance, Renee M. Jones

Renee Jones

This Article challenges corporate governance theorists’ standard assumptions regarding the rationality of business leaders. It reviews scholarly research that documents the presence of irrational actors among senior corporate managers and considers the impact these executives might have on corporations and society. The Article focuses analysis on psychological literature that explores why risk-related decision-making often goes wrong.

Research shows that many individuals have a dysfunctional approach to risk that leads them to engage in self-destructive conduct. A non-trivial number of individuals with problematic personality traits work at high levels of major corporations where they have the capacity to cause significant harm. …

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

Conflicted Counselors: Retaliation Protections For Attorney-Whistleblowers In An Inconsistent Regulatory Regime, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing about their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (“SEC”) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (“SOX”) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Recent federal …

203 N. Lasalle Five Years Later: Answers To The Open Questions, 38 J. Marshall L. Rev. 61 (2004), Paul B. Lewis

Paul Lewis

No abstract provided.

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Directors’ Legal Duties And Csr: Prohibited, Permitted Or Prescribed In Contemporary Corporate Law?, Benedict Sheehy, Donald Feaver

Benedict Sheehy

Abstract: The interaction between CSR obligations and directors’ legal duties is seriously under examined. This article addresses that lack by examining directors’ duties in case law and legislation across the major commonwealth countries and the USA. It provides an analysis of leading cases and examines how they deal with the issues of the shareholder primacy doctrine, corporate legal theory, CSR and directors’ duties. The article reviews fiduciary relations and duties, analyses the directors’ duties to exercise power in the best interests of the company as a whole and for proper purposes. As this area of law is highly contested there …

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Co-Organizer: Symposium On The Jurisprudence Of Family Relations: Privacy, Autonomy, And Should States Regulate Family Relations?, Scott Fitzgibbon

Scott T. FitzGibbon

Professor FitzGibbon served as a co-organizer for the Symposium on the Jurisprudence of Family Relations: Privacy, Autonomy, and Should States Regulate Family Relations? at the Cardozo Law School of Yeshiva University.

Harmonious Discourse And The Good Of Family Law, Scott Fitzgibbon

Scott T. FitzGibbon

On June 6, 2013, Professor FitzGibbon presented at the North American Regional Conference for the International Society of Family Law.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“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 first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“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 first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Corporate Governance Reform In A Time Of Crisis, Christopher M. Bruner

Christopher M. Bruner

In this article I argue that crisis-driven corporate governance reform efforts in the United States and the United Kingdom that aim to empower shareholders are misguided, and offer an explanation of why policymakers in each country have reacted to the financial crisis as they have. I first discuss the risk incentives of shareholders and managers in financial firms, and examine how excessive leverage and risk-taking in pursuit of short-term returns for shareholders led to the crisis. I then describe the far greater power and centrality that U.K. shareholders have historically possessed relative to their U.S. counterparts, and explore historical and …

Good Faith In Revlon-Land, Christopher M. Bruner

Christopher M. Bruner

The Delaware Supreme Court has set a very high hurdle for plaintiffs challenging directors' good faith in the sale of a company. In Lyondell Chemical Company v. Ryan, the court held that unconflicted directors could be found to have breached the good faith component of their duty of loyalty in the transactional context only if they "knowingly and completely failed to undertake," and "utterly failed to attempt" to discharge their duties. In this essay I argue that the Lyondell standard effectively imports into the transactional context the exacting standard previously applied in the oversight context — a move clearly aimed …

Member, International Chair On Natural Law And Human Personhood, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

Reassessing Corporate Personhood In The Wake Of Occupy Wall Street, Nick J. Sciullo

Nick J. Sciullo

This article is about corporate personhood, discussed on the backdrop of class consciousness and criticisms of capital generated, in large part, by the recent and continuing Occupy Movements. I am at first concerned with articulating the evolving jurisprudence of corporate personhood as developed in the Supreme Court of the United States. Combined with this doctrinal approach, I offer a Marxist criticism of corporate personhood jurisprudence that culminates in a discussion of the Occupy Movements' logic of resistance to corporate domination in the United States' law and policy. First, I discuss the role Marxist criticism has played in legal discourse and …

The Biological Basis For The Recognition Of The Family, Scott Fitzgibbon

Scott T. FitzGibbon

The family is matter of heart and blood. It is created, in part, by physical and emotional intimacy. It projects itself through history through its biological dimension. Any reasonable definition of the family must recognize this fundamental characteristic. “Biological dimension” here refers, not only to genetic affinities, important as those may be, but to all physical connections and to all matters closely related to the physical. Thus, it includes all the activities and dispositions which, generation after generation, bring a family together in the great procreative project: the begetting and rearing of children. The biological dimension includes making love and …

The Biological Basis For The Recognition Of The Family, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

Judicial Review Of Administrative Action/ Decision As The Primary Vehicle For Constitutionalism: Law And Procedures In Tanzania, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

This paper examines the discretionary powers of the High Court of Tanzania to review decisions and actions of other public bodies as a means to uphold the spirit of the Constitution on checks and balances between the three organs of the state. The writer examines the procedures for judicial review, the legal and procedural requirements and the remedies available under the laws of Tanzania, however, the writer further examines experiences from other countries particularly from case laws.

Co-Organizer: International Conference On Extended And Extending Families, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

Historia, Maendeleo Na Mabadiliko Ya Katiba Tanzania Tangu Uhuru Hadi Miaka Hamsini Ya Uhuru 9 Desemba 2011., Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

Jamhuri ya Muungano wa Tanzania ni nchi iliyotokana na nchi mbili za Tanganyika na Zanzibari mwaka 1964, tangu uhuru wa Tanganyika 1961 na uhuru wa Zanzibari 1963 pamekuwapo na maendeleo ya kikatiba kwa upande wa Muungano na kwa Zanzibari ambayo hatuna budi kuyatazama kwa mapana yake hasa juu ya ushirikishwaji wa watu katika kuzipata katiba hizi.

Electronic Contracts In Tanzania: An Appraisal Of The Legal Framework, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

The concern of our study was to examine the legal basis for electronic contracts in Tanzania. The major problems that were being examined are; the ascertainment of e-contract terms and the other party in the contract with the focus to consent i.e. consensus ad idem requirements and capacity to contract. With the first problem, e-commerce involves e-contracts and the business community in Tanzania enters into contractual arrangements with external world via websites or email in which case the electronic environment is not suitable in Tanzania in terms of the laws and the technology. Messages sent via internet may be garbled …

Fiduciary Relationships Are Not Contracts, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

Social Contract Theory Of John Locke (1932-1704) In The Contemporary World, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

The 17th century period was marked by an attempt to erect effective safeguard against violations of natural law by governments. Law in this period was conceptualized as an instrument for the prevention of autocracy and despotism. Absolutism in Europe that was associated with governmental encroachments necessitated a strong shield of individual liberty. In this period legal theory placed the main emphasis on liberty, thus the law was to render governments capable of functioning as a guarantor of individual rights. This paper aims at examining the social contract theory of the 17th-century English philosopher, John Locke, its parameters, limitations and its …

Co-Organizer: International Conference On The Jurisprudence Of Parenting And The Influence On Culture, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

Parenting And The Culture Of Friendship, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

El Derecho De Sucesiones Se Debe Atemperar A Los Cambios De La Sociedad Del Siglo Xxi, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.