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Excessive Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz 2016 Duke Law School

Excessive Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz

Faculty Scholarship

Government agencies and prosecutors are being criticized for seeking so few indictments against individuals in the wake of the 2008-09 financial crisis and its resulting banking failures. This article analyzes why — contrary to a longstanding historical trend — personal liability may be on the decline, and whether agencies and prosecutors should be doing more. The analysis confronts fundamental policy questions concerning changing corporate and social norms. The public and the media perceive the crisis’s harm as a “wrong” caused by excessive risk-taking. But that view can be too simplistic, ignoring the reality that firms must take greater risks to try ...


Corporations And The 99%: Team Production Revisited, Shlomit Azgad-Tromer Dr. 2015 Tel Aviv University

Corporations And The 99%: Team Production Revisited, Shlomit Azgad-Tromer Dr.

Shlomit Azgad-Tromer Dr.

We Are the 99%" is a political slogan used by the Occupy Wall Street movement, referring to the prevailing wealth and income inequality, and claiming a divergence of corporate America from the public. This essay explores the interaction between the general public and the public corporation, and its legal manifestation.

Stakeholder theory portrays the corporation as a sphere of cooperation between all stakeholder constituencies, including the general public. Revisiting team production analysis, the essay argues that while several constituencies indeed form part of the corporate team, others are exogenous to the corporate enterprise. Employees, suppliers and financiers contribute together to ...


In Agents We Trust-A Proposal For Material Participation Of Trusts, Alan Wilson, Ryan Pulver 2015 Jackson Kelly, PLLC

In Agents We Trust-A Proposal For Material Participation Of Trusts, Alan Wilson, Ryan Pulver

Wyoming Law Review

In the business succession planning context, estate planners frequently employ the use of trusts to pass ownership of a business from one generation to another. Often, the beneficiaries of such a trust include the children of the grantor. The trust mechanism provides trustee oversight and a controlled process for transition. In many cases, the child/trust beneficiary works in the business and perhaps earns his or her sole income from participation in the business with the promise of direct ownership in the future. This transition requires thorough planning to properly pass ownership in the most tax-efficient manner.

In 2010, Congress ...


The Global Fight Against Foreign Bribery: Is Canada A Leader Or A Laggard?, Susana C. Mijares 2015 Western Law

The Global Fight Against Foreign Bribery: Is Canada A Leader Or A Laggard?, Susana C. Mijares

Western Journal of Legal Studies

This paper explores international responses to foreign bribery with a specific focus on Canada’s increased role in combating the issue. It outlines international anti-bribery measures and their impact on Canada’s approach to foreign bribery, with an overview of Canada’s anti-bribery legislation, the Corruption of Foreign Public Officials Act (CFPOA). These measures have met with international criticism, to which Canada has responded with legislative amendments. Four Canadian legal decisions since the CFPOA amendment exemplify Canada’s stricter enforcement of the Act. Transparency International (TI) issued a progress report that commented on Canada’s current and future role in ...


Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Juliet P. Kostritsky, Wojbor Woyczynski, Harold Haller, Kyle Chen 2015 Case Western Reserve

Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Juliet P. Kostritsky, Wojbor Woyczynski, Harold Haller, Kyle Chen

Juliet P Kostritsky

No abstract provided.


The Associational Hoax: Corporate Personhood & Shareholder Rights After Hobby Lobby And Citizens United, Jaimie K. McFarlin 2015 Harvard University

The Associational Hoax: Corporate Personhood & Shareholder Rights After Hobby Lobby And Citizens United, Jaimie K. Mcfarlin

Jaimie K. McFarlin

No abstract provided.


International Implications Of The 1982 Merger Guidelines, Vincent Draa 2015 University of Georgia School of Law

International Implications Of The 1982 Merger Guidelines, Vincent Draa

Georgia Journal of International & Comparative Law

No abstract provided.


Wink, Wink, Nudge Judge: Persuading U.S. Courts To Take Accountants Seriously In Federal Securities Cases With Help From The U.K. Companies Act, Kurt S. Schulzke 2015 Kennesaw State University

Wink, Wink, Nudge Judge: Persuading U.S. Courts To Take Accountants Seriously In Federal Securities Cases With Help From The U.K. Companies Act, Kurt S. Schulzke

Kurt S. Schulzke

The 2008 collapse of Lehman Brothers reopened wounds many thought were healed by the Sarbanes-Oxley Act (SOX) in 2002. The Lehman litigation finally ended in late 2013 with audit firm Ernst & Young paying $99 million to investors who claimed the firm misled them with generally accepted accounting principles (GAAP) and other defendants, including banks, officers, and directors, paying out more than $500 million. The bright line standards of GAAP and SOX were obviously not enough to protect Lehman plaintiffs or defendants. Why not? The 2006 fraud trial of Enron CEO Jeffrey Skilling offers clues. When asked at trial whether U ...


Public Actors In Private Markets: Toward A Developmental Finance State, Robert C. Hockett, Saule T. Omarova 2015 Cornell Law School

Public Actors In Private Markets: Toward A Developmental Finance State, Robert C. Hockett, Saule T. Omarova

Robert C. Hockett

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of fueling continuous ...


Voter Primacy, Sarah C. Haan 2015 University of Idaho College of Law

Voter Primacy, Sarah C. Haan

Fordham Law Review

This Article argues that Citizens United v. FEC expanded the audience for campaign finance disclosure to include a group that had never before been held relevant to campaign finance disclosure—corporate shareholders—and explores the constitutional, policy, and political consequences of this change. In part IV of Citizens United, the U.S. Supreme Court departed from more than thirty years of campaign finance disclosure analysis to treat corporate shareholders as a target audience for corporate electoral spending disclosure, holding that the governmental interest advanced by campaign finance disclosure laws includes an interest in helping corporate shareholders “determine whether their corporation ...


Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall 2015 Legal Studies & Business Ethics/Wharton University of Pennsylvania

Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, 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 ...


Person, State Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood 2015 Hofstra University, Deane School of Law

Person, State Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood

Daniel J.H. Greenwood

Business corporations are critical institutions in our democratic republican market-based economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.

Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply ...


Business Benefits Of Attorneys And Cpas Collaborating, Biana Borukhovich, Ariel Gamburg 2015 SelectedWorks

Business Benefits Of Attorneys And Cpas Collaborating, Biana Borukhovich, Ariel Gamburg

Biana Borukhovich

No abstract provided.


Why Corporate Tax Reform Can Happen, Edward D. Kleinbard 2015 University of Southern California

Why Corporate Tax Reform Can Happen, Edward D. Kleinbard

University of Southern California Legal Studies Working Paper Series

This brief essay explains what the stakes are for corporate tax reform and why such reform is more politically feasible than most observers believe. The largest conceptual impediments to corporate tax reform are international tax design and the fact that a large fraction of U.S. business income is earned by unincorporated businesses. In response, the essay demonstrates that a framework has emerged with respect to the former that can serve as the basis for constructive negotiations. The essay further lays out a novel strategy for dealing with unincorporated businesses in corporate tax reform, which is to construct a corporate ...


International Law - Employment Discrimination. Japanese Corporation Formed Under United States Law Must Comply With Terms Of Title Vii Of The Civil Rights Act Of 1964. Avagliano V. Sumitumo Shoji America, Inc., - U.S. -, 102 S. Ct. 2374 (1982)., Henry Cyrus 2015 University of Georgia School of Law

International Law - Employment Discrimination. Japanese Corporation Formed Under United States Law Must Comply With Terms Of Title Vii Of The Civil Rights Act Of 1964. Avagliano V. Sumitumo Shoji America, Inc., - U.S. -, 102 S. Ct. 2374 (1982)., Henry Cyrus

Georgia Journal of International & Comparative Law

No abstract provided.


Dual-Class Capital Structures: A Legal, Theoretical & Empirical Buy-Side Analysis, Christopher C. McKinnon 2015 New York University School of Law

Dual-Class Capital Structures: A Legal, Theoretical & Empirical Buy-Side Analysis, Christopher C. Mckinnon

Christopher C McKinnon

Issuing dual classes of stock has become hotly debated since two major events transpired in 2014: (1) Facebook acquired WhatsApp for $19 billion and (2) Alibaba chose to list its shares on the New York Stock Exchange (NYSE) instead of the Hong Kong Exchange despite its more natural fit. Because dual-class managers retain a controlling voting block, their decisions are immune from activist investors or others who disagree with corporate actions. This protection allowed Mark Zuckerberg to acquire WhatsApp at an enormous price, and it is why Alibaba chose to list on the NYSE. This Comment seeks to determine whether ...


The Treasury's Twenty Year Battle With Treaty Shopping: Article 16 Of The 1977 United States Model Treaty, Robert R. Oliva 2015 Florida International University

The Treasury's Twenty Year Battle With Treaty Shopping: Article 16 Of The 1977 United States Model Treaty, Robert R. Oliva

Georgia Journal of International & Comparative Law

No abstract provided.


Mining Investment In Brazil, Peru, And Mexico: A Practical Methodology, Gerald J. Pels 2015 Liddell, Sapp, Zivley, and Laboon

Mining Investment In Brazil, Peru, And Mexico: A Practical Methodology, Gerald J. Pels

Georgia Journal of International & Comparative Law

No abstract provided.


Digging Up The Corp(Ses): Holston Investments V. Lanlogistics Corp. And The Continuing Struggle To Determine The Citizenship Of Dissolved And Inactive Corporations For The Purposes Of Diversity Jurisdiction, Nicholas W. Roosevelt 2015 Northwestern University School of Law

Digging Up The Corp(Ses): Holston Investments V. Lanlogistics Corp. And The Continuing Struggle To Determine The Citizenship Of Dissolved And Inactive Corporations For The Purposes Of Diversity Jurisdiction, Nicholas W. Roosevelt

Northwestern University Law Review

Since the early 1990s, the U.S. Circuit Courts of Appeals have been divided on how to determine the citizenship of dissolved or inactive corporations for the purposes of diversity jurisdiction. By the beginning of the twenty-first century, courts of appeals addressing the issue had settled on one of three conclusions: (1) citizenship should be determined only by the corporation’s state of incorporation; (2) citizenship should be determined both by the corporation’s state of incorporation and its last principal place of business; or (3) citizenship should always be determined by the corporation’s state of incorporation, but only ...


Broad Shareholder Value And The Inevitable Role Of Conscience, Paul D. Weitzel, Zachariah J. Rodgers 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 ...


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