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You're The Problem, Officer: Whether Executive Officers Should Be Subjected To The Same Standards Of Liability As Directors Under Current Corporate Governance Law, Margo Brandenburg 2021 University of Cincinnati College of Law

You're The Problem, Officer: Whether Executive Officers Should Be Subjected To The Same Standards Of Liability As Directors Under Current Corporate Governance Law, Margo Brandenburg

University of Cincinnati Law Review

No abstract provided.


Brief Of Amici Curiae Scholars Of The Law Of Non-Profit Organizations In Support Of Respondent: Americans For Prosperity Foundation V. Matthew Rodriguez, Nos. 19-251 & 19-255, Ellen P. Aprill, Roger Colinvaux, Sean Delany, James Fishman, Brian D. Galle, Philip Hackney, Jill R. Horwitz, Cindy Lott, Ray D. Madoff, Jill S. Manny, Nancy A. McLaughlin, Richard Schmalbeck 2021 Loyola Law School Los Angeles

Brief Of Amici Curiae Scholars Of The Law Of Non-Profit Organizations In Support Of Respondent: Americans For Prosperity Foundation V. Matthew Rodriguez, Nos. 19-251 & 19-255, Ellen P. Aprill, Roger Colinvaux, Sean Delany, James Fishman, Brian D. Galle, Philip Hackney, Jill R. Horwitz, Cindy Lott, Ray D. Madoff, Jill S. Manny, Nancy A. Mclaughlin, Richard Schmalbeck

Amici Briefs

The twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law.


A Corporate Law Rationale For Reparations, Susan S. Kuo, Benjamin Means 2021 University of South Carolina School of Law

A Corporate Law Rationale For Reparations, Susan S. Kuo, Benjamin Means

Boston College Law Review

Should the United States pay reparations to African Americans? A majority of Americans object, arguing that they are not personally responsible for slavery or Jim Crow laws. Their objection is rooted in the principle of ethical individualism, which holds that people can be blamed only for their own actions. This Article contends that the ethical-individualism objection to reparations is misplaced because it assumes that what matters is the culpability of each citizen. This Article argues that like a corporation, the United States is a legal person. Consequently, seeking reparations from the United States does not turn on the guilt of ...


Corporate And Securities Law Impact On Social Responsibility And Corporate Purpose, Thomas Lee Hazen 2021 University of North Carolina at Chapel Hill

Corporate And Securities Law Impact On Social Responsibility And Corporate Purpose, Thomas Lee Hazen

Boston College Law Review

The role of social responsibility in corporate governance has been the subject of debate for nearly ninety years. That debate has been reframed over the decades. Several recent events have resulted in increased focus on corporate social responsibility, especially with respect to publicly held corporations. This Article explores the law’s two different paths for impacting social responsibility. The current iteration of the corporate responsibility movement has implications for both state law chartering of corporations and federal securities regulation. This Article analyzes the ways in which stated purpose clauses in a corporation’s articles of incorporation may be useful in ...


Mining Partnerships, A New Perspective On An Old Theory, Harry L. Mathison Jr. 2021 King, Deep & Branaman

Mining Partnerships, A New Perspective On An Old Theory, Harry L. Mathison Jr.

Journal of Natural Resources & Environmental Law

No abstract provided.


The Successorship Clause Of The National Bituminous Coal Wage Agreement: A Survey Of Federal Court Cases, Ronald E. Meisburg 2021 Smith, Heenan & Althen

The Successorship Clause Of The National Bituminous Coal Wage Agreement: A Survey Of Federal Court Cases, Ronald E. Meisburg

Journal of Natural Resources & Environmental Law

No abstract provided.


Consent By Registration: The "Back-Door Thief", Nate Arrington 2021 University of Arkansas, Fayetteville

Consent By Registration: The "Back-Door Thief", Nate Arrington

Arkansas Law Review

Consider this personal jurisdiction quandary: A growing Arizona company wants to start expanding into other states. The company is incorporated in Delaware and has its principal place of business in Arizona. It decides to make the leap and begins registering to do business in a few surrounding states, including New Mexico. The registration seems straightforward and does not mention anything about jurisdiction. After the registration, but before conducting any business in New Mexico, a Kentucky resident decides to sue the Arizona-based corporation. The suit is based on an alleged tort occurring in Utah, and the plaintiff files the lawsuit in ...


Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch 2021 University of Pennsylvania Carey Law School

Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch

Faculty Scholarship at Penn Law

Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in many cases, explicitly endorse their use. Commentators too support private ordering for its capacity to facilitate innovation and enhance efficiency.

Private ordering typically occurs through firm-specific charter and bylaw provisions. VC-funded startups, however, frequently use an alternative tool – shareholder agreements. These agreements, which have largely ...


A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch 2021 University of Pennsylvania Carey Law School

A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch

Faculty Scholarship at Penn Law

Appraisal is a controversial topic. Policymakers have debated the goals served by the appraisal remedy, and legislatures have repeatedly revised appraisal statutes in an effort to meet those goals while minimizing the cost and potential abuse associated with appraisal litigation. Courts have struggled to determine the most appropriate valuation methodology and the extent to which that methodology should depend on case-specific factors. These difficulties are exacerbated by variation in the procedures by which mergers are negotiated and the potential for conflict-of-interest transactions.

Private ordering offers a market-based alternative to continued legislative or judicial efforts to refine the appraisal remedy. Through ...


Lifting Labor’S Voice: A Principled Path Toward Greater Worker Voice And Power Within American Corporate Governance, Leo E. Strine Jr., Aneil Kovvali, Oluwatomi O. Williams 2021 University of Pennsylvania

Lifting Labor’S Voice: A Principled Path Toward Greater Worker Voice And Power Within American Corporate Governance, Leo E. Strine Jr., Aneil Kovvali, Oluwatomi O. Williams

Faculty Scholarship at Penn Law

In view of the decline in gain sharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because they are a highly visible part of codetermination regimes that operate in several successful European economies, including Germany’s, in which workers have fared better.

But board-level representation is just one part of the comprehensive codetermination regulatory strategy as it is practiced abroad. Without a coherent supporting framework that includes representation from the ground up, as is ...


Information Bundling, Disclosure, And Judicial Deference To Market Valuations, Charles R. Korsmo 2021 Case Western Reserve University School of Law

Information Bundling, Disclosure, And Judicial Deference To Market Valuations, Charles R. Korsmo

Boston College Law Review

This Article examines strategic disclosure behavior in the context of merger announcements. Merger transactions are frequent targets of litigation, including both fiduciary duty class actions and statutory appraisal actions. In either type of litigation, the fair value of the target company as a going concern is at least a part of the measure of damages. In recent years, courts have increasingly looked to market evidence of valuation—including the trading price of the target company’s stock prior to the announcement of the merger. This gives managers an incentive to minimize this trading price by strategically timing disclosures such that ...


Duty And Diversity, Chris Brummer, Leo E. Strine Jr. 2021 Georgetown University Law Center

Duty And Diversity, Chris Brummer, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

In the wake of the brutal deaths of George Floyd and Breonna Taylor, a slew of reforms from Wall Street to the West Coast have been introduced, all aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope and degree of legal obligation and practical effects. In this Article, we provide an old answer to the new questions facing DEI policy, and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that ...


Designing Dual-Class Sunsets: The Case For A Transfer-Centered Approach, Marc T. Moore 2021 William & Mary Law School

Designing Dual-Class Sunsets: The Case For A Transfer-Centered Approach, Marc T. Moore

William & Mary Business Law Review

Dual-class stock (DCS) structures, and their implications for managerial accountability and corporate governance more broadly, have become prevalent concerns for corporate lawyers and policymakers. Recent academic and practitioner debates on DCS have tended to focus less on the general merits and drawbacks of DCS versus one share/one vote structures, and more on the specific common-ground concern as to whether and how such structures are subjected to contingent reversal or “sunset”. This Article compares the relative advantages and disadvantages of time-, ownership- and transfer-centered models of DCS sunset provisions. It argues in favor of the transfer-centered model on the grounds ...


Should Corporations Have A Purpose?, Jill E. Fisch, Steven Davidoff Solomon 2021 University of Pennsylvania Carey Law School

Should Corporations Have A Purpose?, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

The hot topic in corporate governance is the debate over corporate purpose and, in particular, whether corporations should shift their purpose from the pursuit of shareholder wealth to pursuing a broader conception of stakeholder or societal value. We argue that this debate has overlooked the critical predicate questions of whether a corporation should have a purpose at all and, if so, why,

We address these questions by examining the historical, legal and theoretical justifications for corporate purpose. We find that none of the three provides a basis for requiring a corporation to articulate a particular purpose or for a given ...


Sales, Acquisitions, And Mergers Of Direct-To-Consumer Genetic Testing Companies: The Risks And A Solution, Alyssa K McLeod 2021 Texas A&M University School of Law (Student)

Sales, Acquisitions, And Mergers Of Direct-To-Consumer Genetic Testing Companies: The Risks And A Solution, Alyssa K Mcleod

Texas A&M Law Review

Direct-to-consumer genetic tests have become increasingly popular in the United States within the last few years. However, these tests pose many risks to the consumer, most notably privacy risks. A subset of these privacy risks involves the issue of company mergers, acquisitions, and sales. Many companies in the direct-to-consumer genetic testing market have privacy policies that contain a variation of a “business transfer” clause. These clauses specify that in the event the company goes through a business transition such as a sale, merger, or acquisition, the consumer’s personal information—including the consumer’s DNA—will be among the assets ...


Legal Protection For The Sports Events’ Sponsors And Organizers From Ambush Marketing, Fayez Mohammed Al Nusair 2021 Al Ain University of Sciences and Technology, Al Ain - United Arab Emirates Faculty of Law- Department of Private Law

Legal Protection For The Sports Events’ Sponsors And Organizers From Ambush Marketing, Fayez Mohammed Al Nusair

Journal Sharia and Law

Sports events are very important these days due to the fans' passion in following and watching them, therefore it is unacceptable to stop or interrupt the broadcasting of these events.

There is no doubt that the cost of organizing such events is very high, hence it became a necessity to find ways to cover the cost. One of these ways is sponsorship contracts. And in order to get sponsorship, it is necessary to give sponsors the appropriate legal protection especially against ambush marketing.

The western jurisprudence has adopted several solutions to stop ambush marketing practices, such as registering sports events ...


Differentiating The Corporation: Accountability And International Humanitarian Law, David Hughes 2021 University of Ottawa Law School

Differentiating The Corporation: Accountability And International Humanitarian Law, David Hughes

Michigan Journal of International Law

Corporations are significant global actors that are continuing to gain international legal status. Regulatory efforts have closely followed persistent claims that various forms of corporate activity are adversely affecting individual welfare and societal objectives. Such observations are perhaps most acute during instances of armed conflict. The history of corporate misdeeds occurring within or contributing to the perpetuation of warfare is now well-documented. However, the relationship between international humanitarian law—the legal field governing the conduct of war—and corporations receives less attention than other areas of international law where the treatment of business entities have made important advancements. This article ...


Ending Corporate Anonymity: Beneficial Ownership, Sanctions Evasion, And What The United Nations Should Do About It, Vineet Chandra 2021 University of Michigan Law School

Ending Corporate Anonymity: Beneficial Ownership, Sanctions Evasion, And What The United Nations Should Do About It, Vineet Chandra

Michigan Journal of International Law

In the vast majority of jurisdictions around the world, there is a generous array of corporate forms available to persons and companies looking to do business. These entities come with varying degrees of regulation regarding how much information about the businesses’ principal owners must be disclosed at the time of registration and how much of that information is subsequently available to the public. There is little policy harmonization around the world on this matter. Dictators and despots have long taken advantage of this unintended identity shield to evade sanctions which target them; in July of 2019, the Center for Advanced ...


Reconsidering The Evolutionary Erosion Account Of Corporate Fiduciary Law, William W. Bratton 2021 University of Pennsylvania Carey Law School; University of Miami School of Law

Reconsidering The Evolutionary Erosion Account Of Corporate Fiduciary Law, William W. Bratton

Faculty Scholarship at Penn Law

This Article reconsiders the dominant account of corporate law’s duty of loyalty, which asserts that the courts have steadily relaxed standards of fiduciary scrutiny applied to self-dealing by corporate managers across more than a century of history—to the great detriment of the shareholder interest. The account originated in Harold Marsh, Jr.’s foundational article, Are Directors Trustees? Conflicts of Interest and Corporate Morality, published in The Business Lawyer in 1966. Marsh’s showing of historical lassitude has been successfully challenged in a recent book by Professor David Kershaw. This Article takes Professor Kershaw’s critique a step further ...


Limited Liability Partnerships: An (Overlooked) Hole In The Shield, Lin (Lynn) Bai, Sarah Harden 2021 University of Cincinnati College of Law

Limited Liability Partnerships: An (Overlooked) Hole In The Shield, Lin (Lynn) Bai, Sarah Harden

Faculty Articles and Other Publications

There is a split of judicial authority on whether limited liability applies when the creditor is a partner of a limited liability partnership. The New York Court of Appeals narrowly interpreted the partnership statute and denied the applicability, but the California Court of Appeals upheld it. The difference has been overlooked by the legal and business communities. This paper shows that the narrow interpretation is inconsistent with the legislative intent, laden with procedural obstacles in enforcement, and inharmonious with settled legal doctrines and tenets of law-making.


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