Digital Commons Network^™

Fairness Opinions, Steven M. Davidoff

American University Law Review

This Article re-examines the fairness opinion, as well as its role and necessity in corporate control transactions. This Article argues that today's fairness opinion regime is deeply flawed and, as a consequence, a fairness opinion has little meaning. The reasons are primarily this: the financial analyses underlying fairness opinions, as currently prepared by investment banks, are prone to excessive subjectivity and are frequently the product of valuation techniques that are not in accord with best practices. These defects are exacerbated by the recurring problem of these same investment banks who are conflicted in their provision of these opinions. Meanwhile, SEC …

Restoring Trust In Corporate Directors: The Disney Standard And The New Good Faith, Sarah Helene Duggin, Robert M. Goldman

American University Law Review

The purpose of this Article is to explore the parameters and potential impact of the good faith standard articulated in Disney V and clarified in Stone. Part I begins with a brief review of the historical impact of the tension between entrepreneurial freedom and managerial accountability, and Part II explains why the Disney standard differs significantly from the traditional understanding of good faith as the absence of subjective bad faith. Part III points out that the court’s use of the language of bad faith to articulate the new good faith may undercut the effectiveness of the standard. It urges further …

The Sarbanes-Oxley Act: Legal Implications And Research Opportunities, Lawrence A. Cunningham, Stephen Kwaku Asare, Arnold Wright

GW Law Faculty Publications & Other Works

Congress passed the Sarbanes Oxley Act to restore investor confidence, which had been deflated by massive business and audit failures, epitomized by the demise of the Enron Corporation and Arthur Anderson LLP. The Act altered the roles and responsibilities of auditors, corporate officers, audit committee members, as well as other participants in the financial reporting process. We evaluate the potential legal implications of some of the Act's major provisions and anticipate participants' likely responses. Our evaluation suggests that these provisions will significantly change behavior, increase compliance costs and alter the legal landscape. We also identify promising avenues for future research …

Private Monitoring Of Gatekeepers: The Case Of Immigration Enforcement, Jeffrey Manns

GW Law Faculty Publications & Other Works

This article shows how the enlistment of private monitors can overcome the limits of public enforcers in overseeing gatekeeper compliance with liability-induced duties. Gatekeepers are private actors who possess skills or advantages that allow them to detect and prevent wrongdoing in a more cost-effective way than the state. The problem enforcers face is that the same skills or advantages that equip gatekeepers with the ability to identify wrongdoing often provide them with the means and incentives to subvert their duties and to evade public oversight. Policymakers have largely attempted to remedy this challenge by increasing sanctions against gatekeepers and have …

A Patient-Centered Approach To Health Care Fraud Recovery, Joan H. Krause

Faculty Publications

No abstract provided.

Accounting Fraud: Pleading Scienter Of Auditors Under The Private Securities Litigation Reform Act, Gideon Mark

ExpressO

This paper examines the current judicial approach to assessing the scienter of auditors under the Private Securities Litigation Reform Act. The paper concludes that the current approach is inadequate and should be modified.

Much Ado About Nothing: Looking Past The Drama Of The Sarbanes-Oxley Act And Reevaluating The U.S. Delisting Trend Among Non-U.S. Firms, Kalani A. Morse

Brigham Young University International Law & Management Review

No abstract provided.

An Investigation Of Firms' Earnings Management Practices Around Product Recalls, Zeeshan Ahmed

Theses and Dissertations

This study investigates the earnings management practices of firms around product recalls. In recent years, the management of earnings around firm-specific events has received considerable attention in the finance and accounting literature. New equity issues, mergers and acquisitions, share repurchases, and management buyouts are some events around which at least some firms have been shown to manage their earnings to achieve managements? objectives. Product recalls offer yet another interesting occasion when managers have incentives to cover up the true financial performance of their firms and mislead investors. In order to determine whether firms announcing product recalls manage earnings more aggressively …

Share Price As A Poor Criterion For Good Corporate Law, Lynn A. Stout

Cornell Law Faculty Publications

Academics, reformers, and business leaders all yearn for a single, objective, easy-to-read measure of corporate performance that can be used to judge the quality of public corporation law and practice. This collective desire is so powerful that it has led many commentators to grab onto the first marginally plausible candidate: share price.

Contemporary economic and corporate theory, as well as recent business history, nevertheless warn us against unthinking acceptance of share price as a measure of corporate performance. This Essay offers a brief reminder of some of the many reasons why stock prices often fail to reflect true corporate performance, …

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the …

The Queen City Brew, Library Newsletter, Vol. 2, Issue 3, November 2005, Johnson & Wales University - Charlotte

JWU Library Newsletter - Charlotte Campus

No abstract provided.

Proportionality As A Principle Of Limited Government, Alice Ristroph

Faculty Scholarship

No abstract provided.

Reinventing The Corporation, William Greider

Seattle Journal for Social Justice

No abstract provided.

Proportionality As A Principle Of Limited Government, Alice Ristroph

Duke Law Journal

This Article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory-an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in …

Eliminating The Below-Cost Pricing Requirement From Predatory Pricing Claims, Ari Lehman

Cardozo Law Review

No abstract provided.

Maine Law Magazine - Issue No. 83, University Of Maine School Of Law

Maine Law Magazine

Contents:

• Feature Article: Maine Law: A Place of Great Opportunity
• Around Campus: Dean Pitegoff
• Coffin Lecture: Eliot Spitzer
• Commencement 2005
• Faculty Notes
• Focus on Alums: Alice Persons ’86 and Nancy Henry ’86
• Class News

The International Review | 2005 Fall, Michael Rhee

The International Review Newsletter

Interpreting the U.S. Constitution via International Law?

Legal Efforts Against Terrorist Financing: Opportunities and Obstacles

The United Nations in Control of the Internet

Implosion of the Nuclear Nonproliferation Treaty

End of the European Union Constitution?

Law School: A cure for foreign competition?

While the U.S. barely passes the Central American Free Trade Agreement ...

... the outcome of ongoing WTO talks remains uncertain

Undermining the Kyoto Protocol?

A WTO open to the public?

Fighting Fraud On Faith: Federal Securities Regulation And The Limits Of Disclosure, Shannon R. Selden

ExpressO

In the past ten years, Congress passed three major reform acts to address two diametrically opposed concerns: It first restrained what it believed was an excess of securities fraud litigation, then responded to an explosion of securities fraud. This Article contends that despite the competing provocations and ambitions of the reforms, they share an unwarranted adherence to the principle of disclosure as the best means to attack market malfeasance: The Article examines the basis for and consequences of that undeserved legislative fidelity. Applying behavioral economics and cultural theory to the recent legislation and its underpinnings, the Article concludes that a …

Balancing Investor Protection With Capital Formation Needs After The Sec Chamber Of Commerce Case, David S. Ruder

Pace Law Review

No abstract provided.

Aicpa Names Grant Ashley 2005 Outstanding Cpa In Government., American Institute Of Certified Public Accountants (Aicpa)

Guides, Handbooks and Manuals

No abstract provided.

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham

Buffalo Law Review

No abstract provided.

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

Security And Awareness Training Program For Non-It End Users In Small Financial Institutions, Philip A. Egeberg

Masters Theses & Doctoral Dissertations

No abstract provided.

European Law On Capital Markets – Quo Vadis?, Daniela Huemer

Cornell Law School Inter-University Graduate Student Conference Papers

The occurrence of more than a dozen accounting scandals in the United States over the past few years have deeply shaken the capital market and have led some to believe that “corporate and legal culture has lost all sense of right and wrong.” Scandals at companies such as Enron and Worldcom have cost thousands of employees their jobs and caused thousands of investors to lose their investments completely. Similar scandals have happened in Europe as well, such as at Parmalat and Lernout & Hauspie, which has caused an increasing reluctance among investors to trust companies with their dollars.

These circumstances …

Where There’S At-Will, There Are Many Ways: Redressing The Increasing Incoherence Of Employment At Will, Scott A. Moss

ExpressO

Employment at will, the doctrine that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as “essential to free enterprise” and “central to the free market,” but in recent years they have riddled the rule with increasing exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two …

Accounting Consolidation Versus Capital Calculation: The Conflict Over Asset-Backed Commercial Paper Programs, Lee Gilliam

North Carolina Banking Institute

No abstract provided.

Notre Dame Lawyer - Spring 2005, Notre Dame Law School

Notre Dame Lawyer

London Law Centre: A Reexamined Profession Historic buildings with ornate fi replaces have housed this unique year-long study abroad program for Notre Dame law students, several of whom reflect on the influence the program has had on their careers.

Chilé: From Oppression to Freedom Jeff Hall, ’06 J.D. writes about his experience as an intern at the Chilean law firm of Aylwin Abogados (headed by Pedro Alywin, ’92 LL.M.). Hall finds the country’s beauty to be matched only by its people’s resilience.

Reflections on Making a Difference Ana Perez-Arrieta, ’05 J.D. considers her first experience with being “a different kind …

There Ought To Be A Law: The Disclosure Focus Of Recent Legislative Proposals For Nonprofit Reform, Dana Brakman Reiser

Chicago-Kent Law Review

This Article explores and evaluates the disclosure focus of recent legislative proposals for nonprofit reform. It begins by describing legislative proposals under consideration in various states and the U.S. Senate Finance Committee. This summary demonstrates the emphasis these proposals place on disclosure as a technique for enhancing nonprofit accountability. The Article then evaluates the ability of such disclosure mechanisms to achieve nonprofit accountability gains by improving the behavior of nonprofit actors, facilitating nonprofit enforcement by regulators or others, or both. Unfortunately, due to the structure and characteristics of nonprofit organizations and the resources available for nonprofit enforcement, this analysis reveals …

The Federal Government Lawyer's Duty To Breach Confidentiality, James E. Moliterno

Faculty Publications

The lawyer's duty of confidentiality springs from the lawyer-client relationship and its parameters are determined by the nature of that relationship. The federal government lawyer's client is like no other. The uniqueness of representing the United States calls for a unique approach to the duty of confidentiality. Unlike the private individual client, the government as a client does not speak with a single, unmistakable voice. Unlike the private entity client, the federal government has a paramount interest in the public good, including the public's right to know about government (the entity's conduct), especially its misconduct. The result is a client …

Compass, Armstrong State University

Armstrong News & Publications: Compass (Archived)

No abstract provided.