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Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing, Josephine Sandler Nelson 2015 SelectedWorks

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, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.

Especially in the wake of the financial crisis, prosecutors and the public are searching for new tools to combat corporate conspiracy. The most ...


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 ...


How Corporate Political Spending Strains The Limits Of The Business Judgment Rule, David Rosenberg 2014 SelectedWorks

How Corporate Political Spending Strains The Limits Of The Business Judgment Rule, David Rosenberg

David Rosenberg

A number of agency issues arise when a corporation chooses to exercise its freedom of speech by making donations to a super PAC or other political organization. This article draws a distinction between contributions designed to influence legislation and regulation of the corporation and political donations that corporations justify as goodwill or community outreach. Analyzing the issue with an emphasis on the duty of loyalty, the article argues that much corporate political spending cannot really be understood as a business decision that should enjoy the protection of the business judgment rule. It also reflects on the Supreme Court’s recent ...


Context Matters--What Lawyers Say About Choice Of Law Decisions In Merger Agreements, Juliet P. Kostritsky 2014 SelectedWorks

Context Matters--What Lawyers Say About Choice Of Law Decisions In Merger Agreements, Juliet P. Kostritsky

Juliet P Kostritsky

ABSTRACT: The study of choice of law provisions in merger agreements yields various theories as to how much thought parties put into them, and what factors influence such decisions. Eisenberg and Miller found a shift to New York law and other scholars later hypothesized that parties specify New York law rather than Delaware law because New York law is more formalistic. However, a study of 343 merger agreements, consisting of 15 lawyer interviews and a survey sent to 812 lawyers, suggests differently. First, there is no shift from Delaware to New York. Second, a desire for formalistic law is not ...


Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson 2014 SelectedWorks

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

Jonathan C. Lipson

This paper uses “institutional analysis”—the study of the relative capacities of markets, courts, and regulators—to make three claims about financial crises.

First, financial crises are increasingly a problem of “regulatory displacement.” Through the ad hoc rescues of 2008 and the Dodd-Frank reforms of 2010, regulators displace market and judicial processes that ordinarily prevent financial distress from becoming financial crises. Because regulators are vulnerable to capture by large financial services firms, however, they cannot address the pathologies that create crises: market concentration and complexity. Indeed, regulators may inadvertently aggravate these conditions through resolution tactics that consolidate firms, and the ...


Lig Se Assemelha Em Parte Aos Covered Bonds Que Contribuíram Para A Crise Do Subprime, Luiz Rafael de Vargas Maluf 2014 SelectedWorks

Lig Se Assemelha Em Parte Aos Covered Bonds Que Contribuíram Para A Crise Do Subprime, Luiz Rafael De Vargas Maluf

Luiz Rafael de Vargas Maluf

No abstract provided.


More Than A Woman: Insights Into Corporate Governance After The French Sex Quota, Darren Rosenblum, Daria Roithmayr 2014 BLR

More Than A Woman: Insights Into Corporate Governance After The French Sex Quota, Darren Rosenblum, Daria Roithmayr

University of Southern California Legal Studies Working Paper Series

In 2011, France enacted a Corporate Board Quota to establish a forty percent floor for either sex on corporate boards. Existing literature presumes that women will change the way firms function and that their presence in upper management will improve both governance and financial returns. To assess the potential impact of the quota, we interviewed twenty-four current and former corporate board members. Our analysis of these interviews generates two findings. First our results indicate that, at least in the view of board members, the sex quota has had an impact on the process of board decision making, but adding women ...


Bank Resolution In The European Banking Union: A Transatlantic Perspective On What It Would Take, Jeffrey N. Gordon 2014 SelectedWorks

Bank Resolution In The European Banking Union: A Transatlantic Perspective On What It Would Take, Jeffrey N. Gordon

Jeffrey N Gordon

The project of creating a European Banking Union is designed to overcome the fatal link between sovereigns and their banks in the Eurozone. As part of this project, political agreement for a common supervision framework and a common resolution scheme has been reached with difficulty. However, the resolution framework is weak, underfunded and exhibits some serious flaws. Further, Member States’ disagreements appear to rule out a federalized deposit insurance scheme, commonly regarded as the necessary third pillar of a successful Banking Union.

This paper argues for an organizational and capital structure substitute for these two shortcomings that can minimize the ...


Corporations And Religious Freedom: Hobby Lobby Stores - A Missed Opportunity To Reconcile A Flawed Law With A Flawed Health Care System, Matthew A. Melone 2014 SelectedWorks

Corporations And Religious Freedom: Hobby Lobby Stores - A Missed Opportunity To Reconcile A Flawed Law With A Flawed Health Care System, Matthew A. Melone

Matthew A. Melone

On June 30, 2014, the Supreme Court held, in Burwell v. Hobby Lobby Stores, Inc., that the requirement imposed on employer group health insurance plans to provide coverage for certain contraceptives unduly burdened the free exercise rights of three closely-held corporations in violation of the Religious Freedom Restoration Act of 1993 ( RFRA ). The contraception mandate was imposed by regulations implementing the Patient Protection and Affordable Care Act, itself a very controversial piece of legislation a part of which was upheld recently by the Court in a perhaps a case more controversial than Hobby Lobby Stores. RFRA was enacted to reinstate ...


Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller 2014 SelectedWorks

Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller

Benjamin Miller

Abstract

In F.T.C. v. Actavis, Inc. the Supreme Court resolved a circuit split regarding the proper evaluation of reverse payment settlements under federal antitrust law, holding that they must be evaluated under a rule of reason analysis. However, the Court simultaneously created significant uncertainty by declaring that the lower courts were responsible for structuring the analysis. While a few cases are currently in the pre-trial phase, the only decisions relating to reverse payments since Actavis have been rulings on pre-trial motions—there have been no decisions on the merits. Given the intricate intersection between antitrust and intellectual property ...


The New Corporate Web, Anthony J. Casey 2014 SelectedWorks

The New Corporate Web, Anthony J. Casey

Anthony J. Casey

Business firms often separate commonly owned assets into distinct legal entities. The assets can then be financed in discrete bundles to reduce creditors’ monitoring and enforcement costs. Law-and-economics literature has viewed these legal partitions as either all or nothing. That view is flawed and has led the analysis of corporate groups astray.

In reality, firms have developed sophisticated legal mechanisms that partition assets across some dimensions and not others. The result is a complex web of interconnected affiliates. For example, an asset that is placed in one legal entity may serve as collateral guaranteeing the debts of another legal entity ...


The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu 2014 SelectedWorks

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 means that ...


Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre 2014 SelectedWorks

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.


Debêntures: Iniciativas Para Aumento De Liquidez E Fomento Ao Mercado Secundário, Luiz Rafael de Vargas Maluf 2014 SelectedWorks

Debêntures: Iniciativas Para Aumento De Liquidez E Fomento Ao Mercado Secundário, Luiz Rafael De Vargas Maluf

Luiz Rafael de Vargas Maluf

No abstract provided.


What Remains Of Vicarious Jurisdiction For Establishing General Jurisdiction Over Corporate Defendants After Daimlerag V. Bauman, Keri M. Martin 2014 SelectedWorks

What Remains Of Vicarious Jurisdiction For Establishing General Jurisdiction Over Corporate Defendants After Daimlerag V. Bauman, Keri M. Martin

Keri M. Martin

When, if ever, should a corporation be subject to a court’s jurisdiction based solely on the activities of another entity? Commonly, injured plaintiffs pursue foreign corporations to recover for injuries inflicted upon them by some activity of that corporation or its subsidiary. Where plaintiffs are unable to establish personal jurisdiction over the foreign corporation directly, plaintiffs may attempt to establish jurisdiction over the corporation indirectly by imputing to it the in-forum activities of a closely related subsidiary. This form of jurisdictional blame shifting has been termed “vicarious jurisdiction,” and it stems from the understanding that more than one entity ...


"Competitiveness" Has Nothing To Do With It, Edward D. Kleinbard 2014 BLR

"Competitiveness" Has Nothing To Do With It, Edward D. Kleinbard

University of Southern California Legal Studies Working Paper Series

The recent wave of corporate tax inversions has triggered interest in what motivates these tax-driven transactions now. Corporate executives have argued that inversions are explained by an “anti-competitive” U.S. tax environment, as evidenced by the federal corporate tax statutory rate, which is high by international standards, and by its “worldwide” tax base. This paper explains why this competitiveness narrative is largely fact-free, in part by using one recent articulation of that narrative (by Emerson Electric Co.’s former vice-chairman) as a case study.

The recent surge in interest in inversion transactions is explained primarily by U.S. based multinational ...


Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee Jones 2014 Boston College Law School

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee Jones

Renee Jones

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in ...


Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman 2014 SelectedWorks

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Since 1978, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond.

The NACD has grown from a mere realization of the importance of corporate governance to become the only national membership organization created by and for corporate directors ...


New York Stock Exchange, Bert Chapman 2014 Purdue University

New York Stock Exchange, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides a historical overview of the origins and early development of the New York Stock Exchange.


Corporate Boardroom Diversity: Why Are We Still Talking About This?, Lawrence J. Trautman 2014 SelectedWorks

Corporate Boardroom Diversity: Why Are We Still Talking About This?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for any organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition?

My goal is to provide answers to these questions, and to discuss ...


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