Defining Agency And Its Scope (Ii), 2016 Duke Law School
Defining Agency And Its Scope (Ii), Deborah A. Demott
Fiduciary law necessarily raises issues of delineation and demarcation, which this paper demonstrates through examples involving common-law agents. Serving as an agent, and thus as a fiduciary, does not necessarily mean that agency law prescribes all duties that the agent owes the principal. The agent may have rights external to the relationship that the agent may exercise, distinct from the duty of loyalty owed the principal. When an agent acts outside the bounds of an agency relationship, the principal’s consent is not requisite to conduct that would constitute disloyalty within the bounds of the agency relationship. The paper illustrates ...
Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), 2015 University of Montana - Missoula
Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore
Public Land and Resources Law Review
In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.
Interagency Conflict: A Model For Analysis, 2015 University of Georgia School of Law
Interagency Conflict: A Model For Analysis, Betsy C. Cox, Gary Shmerling
Georgia Journal of International & Comparative Law
No abstract provided.
Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood
What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden them ...
High Country Conservation Advocates V. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), 2015 Alexander Blewett III School of Law at the University of Montana
High Country Conservation Advocates V. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), Kathryn S. Ore
Public Land and Resources Law Review
High Country Conservation Advocates v. United States Forest Service concerns the United States Forest Service’s and the Bureau of Land Management’s authorizations of on-the-ground mining exploration activities in the Sunset Roadless Area of western Colorado. The United States District Court for the District of Colorado’s holding has far-reaching consequences for federal agencies’ analysis and disclosure of impacts on the climate under the National Environmental Policy Act (“NEPA”). In addition to bolstering the Plaintiffs’ recent successes at establishing legal standing to challenge federal agencies’ disclosures and analyses of impacts on the climate under NEPA, High Country is the ...
An Approach To The Regulation Of Spanish Banking Foundations, 2015 Universidad Pontificia de Comillas
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.
Jobsohio: Don’T Let Progress Stand In The Way Of Progress, 2015 University of Dayton
Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin, Patrick Martin
In February of 2011, Governor of Ohio John Kasich signed legislation that created JobsOhio. This has been a controversial program based on the method that it was implemented and some of the rules that govern the program.it. In November of 2013, ProgressOhio, a citizens advocacy group, challenged the constitutionality of the program but the suit was dismissed by the Ohio Supreme Court for lack of standing by the plaintiffs. There has been no court decision that adjudicates the program on the merits, only on the jurisdictional standing of a party to a suit that challenged the legislation. To date ...
Irs's Recent Uncertain Tax Positions Initiative: A Tangle Of Accounting, Tax And Privilege Issues, 9 Depaul Bus. & Comm. L.J. 401 (2011), Kathryn Kennedy
Kathryn J. Kennedy
Given the extremely limited source of resources available to the IRS in recent years, it's not surprising that it is exploring all sorts of avenues to increase its efficiency, particularly relying on corporate taxpayers to self report questionable tax positions. Under the banner of "corporate governance" and "transparency," the Service issued a series of proposals in 2010 requiring disclosure of uncertain tax positions ("UTPs") by corporate taxpayers. The Service essentially piggybacked on the recently imposed 2006 audit requirements that reserves be posted for contingent tax liabilities (i.e., tax positions that could later not be sustained, and therefore had ...
Apparent Authority And Healthcare In Illinois - Revisited, 27 N. Ill. U. L. Rev. 11 (2006), 2015 The John Marshall Law School
Apparent Authority And Healthcare In Illinois - Revisited, 27 N. Ill. U. L. Rev. 11 (2006), Marc Ginsberg, Patricia Nowak
Marc D. Ginsberg
No abstract provided.
Kicking Employers While They Are Down: Vicarious Liability Under The Anti-Kickback Act, 2015 The Catholic University of America, Columbus School of Law
Kicking Employers While They Are Down: Vicarious Liability Under The Anti-Kickback Act, Daniel Horner
Catholic University Law Review
The Anti-Kickback Act is one of the instruments the Government uses to punish and prevent procurement fraud. The Act creates criminal and civil liability for the use of kickbacks by government contractors. Specifically, the civil provision contains two subsections -- one punishing employees for their actions, and the other punishing employers under a theory of strict liability. In United States ex rel. Vavra v. Kellogg, Brown & Root, the United States Court of Appeals for the Fifth Circuit held that employers are subject to vicarious liability for their employees' violations of the first subsection of the civil suit provision of the Anti-Kickback ...
Broad Shareholder Value And The Inevitable Role Of Conscience, 2015 Davis Polk & Wardwell, LLP
Broad Shareholder Value And The Inevitable Role Of Conscience, Paul D. Weitzel, Zachariah J. Rodgers
Paul D. Weitzel
This article proposes an integrative solution to the modern debate on corporate purpose, the question of whether directors and officers must solely maximize profits or whether they may consider the effects on employees, the environment or the community. Many find pure profit maximization unseemly and suggest alternative theories, typically arguing that corporations owe a duty to a broader range of stakeholders. This position is inconsistent with the case law and unnecessary to allow conscience in the board room. We resolve the issue more simply by acknowledging that the purpose of a corporation is to promote the shareholders’ interests, which includes ...
Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, 2015 University of Georgia School of Law
Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert Bartlett
An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely held corporation plagued by intershareholder conflict. This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital (VC) finance, this Article demonstrates how this dichotomy obscures how all firms -- public and private -- often face the same agency problems ...
The Silenced Connecticut Sex-Abuse Case, 2015 Selected Works
The Silenced Connecticut Sex-Abuse Case, J.S. Nelson
Where Are The Prosecutions For Corporate Conspiracy?, 2015 Selected Works
Where Are The Prosecutions For Corporate Conspiracy?, J.S. Nelson
Work Made For Hire – Analyzing The Multifactor Balancing Test, 2015 University of Akron School of Law
Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca
Akron Law Publications
Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further ...
Attack Of The Cheerleaders! Allegations Of Violations Of The Flsa On An Uncertain Landscape, 2015 Central Michigan University
Attack Of The Cheerleaders! Allegations Of Violations Of The Flsa On An Uncertain Landscape, Adam Epstein
In 2013-14, several lawsuits were brought by National Football League (NFL) cheerleaders who claimed that their respective football clubs violated federal or state law with regard to violations of the Fair Labor Standards Act (FLSA), the 1938 federal act that mandates the minimum wage, overtime provisions, and so on. Interestingly, and at the same time, national discourse manifest itself over possibly increasing the federal, state and local minimum wage with various states and cities voting in favor of increasing their minimum wage. The purpose of this article is to explore the recent claims by certain NFL cheerleaders and to analyze ...
Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees, George P. Roach
George P Roach
Stacking Remedies Against Disloyal Agents and Employees
Four cases against outlaw CEO’s who defrauded their companies are reviewed to show the major impact that compensation forfeiture contributes to the total package of remedies awarded. The dual goals of remedies for breach of fiduciary duty of compensation and deterrence result in multiple remedies, generally including a remedy at law to compensate and a remedy in equity to disgorge any benefit from the breach. For claims that the fiduciary or agent breached her duty of loyalty, a third remedy of compensation forfeiture can be added or ‘stacked’ on ...
The Viability Of Enterprise Jurisdiction: A Case Study Of The Big Four Accounting Firms, 2015 Indiana University Maurer School of Law
The Viability Of Enterprise Jurisdiction: A Case Study Of The Big Four Accounting Firms, Hannah L. Buxbaum
Articles by Maurer Faculty
One of the boundaries that U.S. courts must observe as they adjudicate regulatory disputes is the limit on their own jurisdictional authority -authority that is measured at the level of the particular forum state. Confronting the expansion of U.S. business activity from the local to the national scale during the second half of the twentieth century, courts consciously broadened jurisdictional standards to address the expanded activities of nationwide corporate groups. Today, by contrast, as the economy continues to expand from the national to the transnational scale, the U.S. Supreme Court has begun a retrenchment. In cases decided ...
Forum-Selection Bylaws Refracted Through An Agency Lens, 2015 Duke Law School
Forum-Selection Bylaws Refracted Through An Agency Lens, Deborah A. Demott
Both praise and controversy surround director-adopted bylaws that affect shareholders' litigation rights. Recent bylaws specify an exclusive forum for litigation of corporate governance claims, limit shareholder claims to resolution through arbitration, and (most controversially) impose a one-way regime of fee shifting on shareholder litigants. To one degree or another, courts have legitimated each development, while commentators differ in their assessments. This Article brings into clear focus issues so far blurred in debates surrounding these types of bylaws. Focusing on forum-selection bylaws, and on Delaware precedents, I argue that beginning from the standpoint of common law agency reveals the attenuated and ...
Relationships Of Trust And Confidence In The Workplace, 2015 Duke Law School
Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott
No abstract provided.