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Conscience And Complicity: Assessing Pleas For Religious Exemptions In Hobby Lobby's Wake, Amy Sepinwall 2015 University of Pennsylvania

Conscience And Complicity: Assessing Pleas For Religious Exemptions In Hobby Lobby's Wake, Amy Sepinwall

Amy J. Sepinwall

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund ...


The Value Of Soft Variables In Corporate Reorganizations, Michelle M. Harner 2015 University of Maryland Francis King Carey School of Law

The Value Of Soft Variables In Corporate Reorganizations, Michelle M. Harner

Faculty Scholarship

When a company is worth more as a going concern than on a liquidation basis, what creates that additional value? Is it the people, management decisions, the simple synergies of the operating business, or some combination of these types of soft variables? And perhaps more importantly, who owns or has an interest in these soft variables? This article explores these questions under existing legal doctrine and practice norms. Specifically, it discusses the characterization of soft variables under applicable law and in financing documents, and it surveys related judicial decisions. It also considers the overarching public policy and Constitutional implications of ...


The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), Josephine Sandler Nelson 2015 SelectedWorks

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

J.S. Nelson

The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.

The vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in ...


Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall 2015 University of Pennsylvania

Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall

Amy J. Sepinwall

In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the ...


Who Sits On Texas Corporate Boards? Texas Corporate Directors: Who They Are & What They Do, Lawrence J. Trautman 2014 SelectedWorks

Who Sits On Texas Corporate Boards? Texas Corporate Directors: Who They Are & What They Do, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Corporate directors play an important role in governing American business, in the capital formation process, and are fundamental to the stewardship of economic growth. Texas businesses play a disproportionately important role among the states in aggregate U.S. job creation, responsible for 37% of all net new American jobs since the post 2008-2009 recovery began. It is the job of the board of directors to govern the corporation. The duties and responsibilities of a corporate director include: the duty of care; duty of loyalty; and duty of good faith. This paper results from the author’s previously assembled biographical data ...


Age Discrimination--Extraterritorial Application Of The Age Discrimination In Employment Act--Equal Employment Opportunity Commission Determines That A United States Corporation Operating In West Germany Is Subject To Suit Under The Age Discrimination In Employment Act--Employer's Defense Based On Compliance With West German Law Rejected, Chris Lauderdale 2014 University of Georgia School of Law

Age Discrimination--Extraterritorial Application Of The Age Discrimination In Employment Act--Equal Employment Opportunity Commission Determines That A United States Corporation Operating In West Germany Is Subject To Suit Under The Age Discrimination In Employment Act--Employer's Defense Based On Compliance With West German Law Rejected, Chris Lauderdale

Georgia Journal of International & Comparative Law

No abstract provided.


Unilateral Forum Selection Clauses In Corporate Bylaws: A Synopsis Of The Debate, Bryce Cullinane 2014 Pepperdine University

Unilateral Forum Selection Clauses In Corporate Bylaws: A Synopsis Of The Debate, Bryce Cullinane

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker 2014 Pepperdine University

The Short Road Home To Delaware: Boilermakers Local 154 Retirement Fund V. Chevron, Anne M. Tucker

The Journal of Business, Entrepreneurship & the Law

One of the biggest Delaware Supreme Court cases of 2013 wasn’t. The Delaware Court of Chancery opinion in Boilermakers Local 154 Retirement Fund v. Chevron Corp., upheld the enforceability of Delaware forum selection clause bylaws unilaterally adopted by corporate boards of directors. It was widely expected that the Delaware Supreme Court would uphold the Court of Chancery’s opinion. However, Plaintiffs dismissed their appeal and moved to dismiss their remaining claims in the Court of Chancery, leaving intact Chancellor Strine’s strong support of forum selection clauses. National Industries Group (Holding) v. Carlyle Investment Managements L.L.C. and ...


Exploring The Standard Of Review Of Transactions With Controlling Shareholders After In Re Mfw Shareholders Litigation (Decided May 29th, 2013), Miriam Bitton, Odelia Minnes 2014 Pepperdine University

Exploring The Standard Of Review Of Transactions With Controlling Shareholders After In Re Mfw Shareholders Litigation (Decided May 29th, 2013), Miriam Bitton, Odelia Minnes

The Journal of Business, Entrepreneurship & the Law

This Article will begin with a review of the MFW case, followed by a review of the judicial history prior to this decision. Then it will try to analyze, albeit partially, some of the reasons for why this judgment is timely and reasonable considering changes that occurred in the last decades. It will also address some of the courts' reasoning and its persuasiveness.


Lessons Of 2013: The Perils Of "Ready, Fire, Aim" And The Importance Of An Integrated Litigation Strategy In Corporate Governance Matters, Thad A. Davis, Leslie A. Wulff 2014 Pepperdine University

Lessons Of 2013: The Perils Of "Ready, Fire, Aim" And The Importance Of An Integrated Litigation Strategy In Corporate Governance Matters, Thad A. Davis, Leslie A. Wulff

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


Fall 2013 Symposium: Contemporary Trends In Corporate Litigation, Robert Anderson IV, Myron T. Steele, Katherine J. Blair, Thad A. Davis, James R. Griffin, James J. Moloney 2014 Pepperdine University

Fall 2013 Symposium: Contemporary Trends In Corporate Litigation, Robert Anderson Iv, Myron T. Steele, Katherine J. Blair, Thad A. Davis, James R. Griffin, James J. Moloney

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


More Burden Than Benefit? Analysis Of The Benefit Corporation Movement In California, Sarah Thornsberry 2014 Pepperdine University

More Burden Than Benefit? Analysis Of The Benefit Corporation Movement In California, Sarah Thornsberry

The Journal of Business, Entrepreneurship & the Law

The benefit corporation movement has been associated with the separate camps of social entrepreneurship, nonprofit organizations, and for-profit corporations, while trying to establish itself as a community of businesses that pursue not only profit, but also environmental and social good. This article examines the legal attributes of benefit corporation legislation and articulates why incorporating as a benefit corporation can be an excellent business decision. Lastly, the article looks at how the movement can further expand in California.


Predatory Hiring As Exclusionary Conduct: A New Perspective, Richard J. Braun, Michael A. Williams 2014 Pepperdine University

Predatory Hiring As Exclusionary Conduct: A New Perspective, Richard J. Braun, Michael A. Williams

The Journal of Business, Entrepreneurship & the Law

The showing of predatory or exclusionary conduct is a necessary element to prove an attempted monopolization claim under section 2 of the Sherman Act. Predatory hiring as a form of exclusionary conduct has not been extensively analyzed from legal or economic perspectives. Most litigated cases have followed Universal Analytics, Inc. v. MacNeal-Schwendler Corp., where the court held that unlawful predatory hiring occurs when talent is acquired not for purposes of using that talent, but for purposes of denying it to a competitor. An anticompetitive act by a single firm is an act that is not profit maximizing but for the ...


Can An Illinois Not-For-Profit Membership Corporation Be Created As A “Shell Corporation”?, Wm. Dennis Huber 2014 SelectedWorks

Can An Illinois Not-For-Profit Membership Corporation Be Created As A “Shell Corporation”?, Wm. Dennis Huber

Wm. Dennis Huber

While this inquiry focuses on Illinois not-for-profit corporations the question is important not just for Illinois, but for all jurisdictions with similar not-for-profit corporation laws. The question is more than an academic exercise and the answer has important and potentially serious consequences. In a recent action by a member of an Illinois not-for-profit corporation for judicial dissolution of the corporation alleging those in control of the corporation “have acted, are acting, or will act in a manner that is illegal, oppressive or fraudulent” the corporation moved to dismiss the action under 2-619(a)(9) claiming it never had any members ...


Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris 2014 Touro College Jacob D. Fuchsberg Law Center

Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris

Touro Law Review

No abstract provided.


Delaware’S Familiarity, Brian J. Broughman, Darian M. Ibrahim 2014 College of William & Mary Law School

Delaware’S Familiarity, Brian J. Broughman, Darian M. Ibrahim

Popular Media

No abstract provided.


Can An Illinois Not-For-Profit Membership Corporation Be Created As A “Shell Corporation”?, Wm. Dennis Huber 2014 SelectedWorks

Can An Illinois Not-For-Profit Membership Corporation Be Created As A “Shell Corporation”?, Wm. Dennis Huber

Wm. Dennis Huber

Can an Illinois not-for-profit corporation whose articles of incorporation creates members and whose members have an unrestricted right to vote and whose members elected officers, and which received income from members’ dues, later claim it never had any members because it was only a “shell corporation”? This inquiry focuses on the Illinois not-for-profit corporation as an example. However, the question is important not just for Illinois, but for all jurisdictions with similar not-for-profit corporation laws. Due to the high risk of fraud, the misappropriation of funds, or the misuse of assets, and applying basic principles of statutory construction it must ...


A Blended Approach To Reducing The Costs Of Shareholder Litigation, Valian A. Afshar 2014 University of Michigan Law School

A Blended Approach To Reducing The Costs Of Shareholder Litigation, Valian A. Afshar

Michigan Law Review

Multiforum litigation and federal securities law class actions impose heavy costs on corporations and their shareholders without producing proportionate benefits. Both are largely the result of the agency problem between shareholders and their attorneys, driven more by the attorneys’ interests in generating fees than by the interests of their clients. In response to each of these problems, commentators have recommended a number of solutions. Chief among them are forum selection and mandatory arbitration provisions in a corporation’s charter or bylaws. This Note recommends that corporations unilaterally adopt both forum selection and mandatory arbitration bylaws to address shareholder lawsuits under ...


The Still-Dwindled Revlon, Lyman P.Q. Johnson, Robert Ricca 2014 Washington and Lee University School of Law

The Still-Dwindled Revlon, Lyman P.Q. Johnson, Robert Ricca

Washington and Lee Law Review Online

This is a brief Response to Professor Mohsen Manesh’s extensive response to our original article, The Dwindling of Revlon. Our thesis is that today the iconic Revlon doctrine is, remedially, quite substantially diminished. Although Professor Manesh sets out to establish what he calls “the limits of Johnson’s and Ricca’s thesis,” we here maintain, as before, that there is little remedial clout to Revlon unless directors or others very significantly misbehave. We also criticize Delaware’s continuing use of the standard-of-conduct/standard-of-review construct in the fiduciary duty area. This rubric is unhelpful generally and strikingly so in the ...


The Compliance Function: An Overview, Geoffrey P. Miller 2014 NELLCO

The Compliance Function: An Overview, Geoffrey P. Miller

New York University Law and Economics Working Papers

The compliance function consists of efforts organizations undertake to ensure that employees and others associated with the firm do not violate applicable rules, regulations or norms. It is a form of internalized law enforcement which, if it functions effectively, can substitute for much (although not all) of the enforcement activities provided by the state. Together with its close cousins, governance and risk-management, compliance is an essential internal control activity at corporations and other complex organizations. This paper will examine the following topics: the analysis of compliance within a general theory of enforcement; the development of the compliance function; the concept ...


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