Business Law, Public Responsibility, and Ethics Commons^™

Shareholder Bylaws And The Delaware Corporation, Christopher M. Bruner

Scholarly Works

Much like hostile tender offers in the 1980s and 1990s, shareholder bylaws purporting to limit board authority in key areas of corporate governance are, once again, forcing Delaware's courts to grapple with the fundamental nature of the corporate form.

In this (short) essay written for a roundtable discussion at the 2009 Annual Meeting of the Southeastern Association of Law Schools, I discuss CA, Inc. v. AFSCME Employees Pension Plan - the 2008 opinion in which the Delaware Supreme Court began to define the nature and scope of the shareholders' bylaw authority. In CA, Inc. the court held that a proposed …

The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Amanda Rose, Richard A. Epstein

Vanderbilt Law School Faculty Publications

Any symposium on private-equity firms and the going private phenomenon would be incomplete without discussion of Sovereign Wealth Funds (SWFs). These government owned investment vehicles have and will continue to play an important role in the going private phenomenon. SWFs have not only helped fuel that phenomenon through their participation as limited partners in private-equity funds and hedge funds, but their massive capital infusions into ailing financial institutions and private-equity firms in the wake of the subprime mortgage crisis may, in a very real sense, save it. It is not hyperbolic to suggest that the future of private equity - …

Public Ownership. Firm Governance, And Litigation Risk, Eric L. Talley

Faculty Scholarship

Many going-private transactions are motivated – at least ostensibly – by the desire to escape the burdens and costs of public ownership. Although these burdens have many purported manifestations, one commonly cited is the risk of litigation, which may be borne both directly by the firm and/or its fiduciaries or reflected in director and officer insurance premia funded at company expense. An important issue for the "litigation risk" justification of privatization is whether alternative (and less expensive) steps falling short of going private – such as governance reforms – may augur sufficiently against litigation exposure. In this Article, I consider …

The Dystopian Potential Of Corporate Law, D. Gordon Smith

Faculty Scholarship

The community of corporate law scholars in the United States is fragmented. One group, heavily influenced by economic analysis of corporations, is exploring the merits of increasing shareholder power vis-a-vis directors. Another group, animated by concern for social justice, is challenging the traditional, shareholder-centric view of corporate law, arguing instead for a model of stakeholder governance. The current disagreement within corporate law is as fundamental as in any area of law, and the debate is more heated than at any time since the New Deal. This paper is part of a debate on the audacious question, Can Corporate Law Save …

The Moral Justification For Journalism, Sandra L. Borden

Center for the Study of Ethics in Society Papers

Papers presented for the Center for the Study of Ethics in Society Western Michigan University

Wherefore Art Thou Guidelines? An Empirical Study Of White-Collar Criminal Sentencing And How The Gall Decision Effectively Eliminated The Sentencing Guidelines, S. Patrick Morin

The University of New Hampshire Law Review

[Excerpt] “Until the passage of the U.S. Federal Sentencing Guidelines in 1984, federal judges had relatively wide discretion in sentencing federal offenders up to the statutory maximum. This judicial discretion led to a disparity in the sentences of similarly situated offenders, particularly in white-collar cases. The Guidelines attempted to eliminate this disparity by establishing maximum and minimum sentences for certain offenses based on the characteristics of the crime. An important feature of the Guidelines system was its mandatory nature, which decreased and structured the judiciary‘s discretion within bounds set by Congress.

The mandatory application of the Guidelines resulted in stiff …

The Enduring Ambivalence Of Corporate Law, Christopher M. Bruner

Scholarly Works

Prevailing theories of corporate law tend to rely heavily on strong claims regarding the corporate governance primacy and legitimacy of either the board or the shareholders, as the case may be. In this article I challenge the descriptive power of these theories as applied to widely held public corporations and advance an alternative, arguing that corporate law is, and will remain, deeply ambivalent - both doctrinally and morally - with respect to three fundamental and related issues: the locus of ultimate corporate governance authority, the intended beneficiaries of corporate production, and the relationship between corporate law and theachievement of the …

States, Markets, And Gatekeepers: Public-Private Regulatory Regimes In An Era Of Economic Globalization, Christopher M. Bruner

Scholarly Works

This paper illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between state and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse - the public-private gatekeeper.

Specifically, I examine striking similarities between global bond markets and e-commerce markets through comparison of entities regulating admission to them - the dominant credit rating agencies (Standard & Poor's and Moody's), and the Internet Corporation for Assigned Names and Numbers (ICANN). Following anexamination of the development of these markets and the global regulatory power exercised by …

Reforming Securities Litigation Reform: Restructuring The Relationship Between Public And Private Enforcement Of Rule 10b-5, Amanda A. Rose

Vanderbilt Law School Faculty Publications

Commentators have long debated how to reform the controversial Rule 10b-5 class action without pausing to ask whether the game is worth the candle. Is private enforcement of Rule lOb-5 worth preserving, or might we be better off with exclusive public enforcement? This fundamental but neglected question demands attention today more than ever. An academic consensus has emerged that the typical Rule 1Ob-5 class action cannot be defended on compensatory grounds. That leaves the oft-cited, but undertheorized, rationale that private enforcement is a "necessary supplement" to the securities fraud deterrence efforts of the SEC. When this justification is critically examined, …

Reply To Joseph Ellin's Of All Professions, Prostitution Is The Oldest (Except Possibly For Teaching), Michael Davis

Center for the Study of Ethics in Society Papers

No abstract provided.

Professions "Of All Professions, Begging Is The Best" A Paper By Michael Davis. Response By Joseph Ellin. Professor Davis' Reply, Center For The Study Of Ethics In Society

Center for the Study of Ethics in Society Papers

Michael Davis' original paper was presented to the Center of the Study of Ethics in Society Western Michigan University on October 4, 2007.

"Of All Professions Begging Is The Best" - Some Problems In The Study Of Professions, Michael Davis

Center for the Study of Ethics in Society Papers

Michael Davis' original paper was presented to the Center of the Study of Ethics in Society Western Michigan University on October 4, 2007.

Of All Professions, Prostitution Is The Oldest (Except Possibly For Teaching), Joseph Ellin

Center for the Study of Ethics in Society Papers

Response by Joseph Ellin to a paper by Michael Davis Professions "Of All Professions, Begging is the Best"

The Relevance And Value Of Confucianism In Contemporary Business Ethics, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

This article examines the relevance and value of Confucian Ethics to contemporary Business Ethics by comparing their respective perspectives and approaches towards business activities within the modern capitalist framework, the principle of reciprocity and the concept of human virtues. Confucian Ethics provides interesting parallels with contemporary Western-oriented Business Ethics. At the same, it diverges from contemporary Business Ethics in some significant ways. Upon an examination of philosophical texts as well as empirical studies, it is argued that Confucian Ethics is able to provide some unique philosophical and intellectual perspectives in order to forge a richer understanding and analysis of the …

The Reformed Cfius Regulatory Framework: Mediating Between Continued Openness To Foreign Investment And National Security, George S. Georgiev

Articles

No abstract provided.

Understanding The ‘Corporate’ In Corporate Social Responsibility, Barak D. Richman, Aaron K. Chatterji

Faculty Scholarship

No abstract provided.

An Assessment Of The Impact Of The Sarbanes-Oxley Act On The Investigation Violations Of The Foreign Corrupt Practices Act, Karen Cascini, Alan L. Delfavero

WCBT Faculty Publications

During the late 1990s and early 2000s, a plethora of corporate scandals occurred. Due to these corporate debacles, corporate executives have been placed under fire. In response to such unethical conduct with regard to internal practices and financial reporting, legislation has been passed in order to ensure that corporations conduct their business in an ethical manner. The purpose of this paper is to assess the connection between the Foreign Corrupt Practices Act of 1977 (FCPA) and the Sarbanes-Oxley Act of 2002 (SOx), to determine whether SOx has influenced the FCPA’s investigative violation activities by examining the number of such investigations …

Darwinism And The Meaning Of Life, Arthur Falk

Center for the Study of Ethics in Society Papers

Papers presented for the Center of the Study of Ethics in Society Western Michigan University.

Some Peer-To-Peer, Democratically And Voluntarily Produced Thoughts About 'The Wealth Of Networks: How Social Production Transforms Markets And Freedom,' By Yochai Benkler, Ann Bartow

Law Faculty Scholarship

In this review essay, Bartow concludes that The Wealth of Networks: How Social Production Transforms Markets and Freedom by Yochai Benkler is a book well worth reading, but that Benkler still has a bit more work to do before his Grand Unifying Theory of Life, The Internet, and Everything is satisfactorily complete. It isn't enough to concede that the Internet won't benefit everyone. He needs to more thoroughly consider the ways in which the lives of poor people actually worsen when previously accessible information, goods and services are rendered less convenient or completely unattainable by their migration online. Additionally, the …

Business, Steven R. Ratner

Book Chapters

This chapter seeks to expose some of the divergences between doctrine and reality, and to suggest ways of understanding the field that take proper account of business. It does so first by examining the roles and goals of business entities with respect to international environmental law. It then examines how international law has accommodated the place of business in environmental policy with respect to two key issues: (1) corporations as the target of legal obligations; and (2) corporations as participants in the process of international environmental law, particularly with respect to law-making and implementation. I conclude with some thoughts regarding …

Community Rehabilitation Programs And Organizational Change: A Mentor Guide To Increase Customized Employment Outcomes, John Butterworth, Cecelia Gandolfo, W. Grant Revell, Katherine J. Inge

All Institute for Community Inclusion Publications

In 2002, the U.S. Department of Labor, Office of Disability Employment Policy (ODEP) announced the availability of funds to support a National Training Technical Assistance for Providers (T-TAP) project. The goal of the project was to assist community rehabilitation providers (CRPs) in facilitating integrated employment / customized employment outcomes for individuals served by these programs. Virginia Commonwealth University (VCU) in partnership with the Institute for Community Inclusion (ICI) at the University of Massachusetts Boston submitted a proposal and was awarded the cooperative agreement in October of 2002.

For the purpose of this Guide, customized employment is defined as a process …

A Return To Descartes: Property, Profit, And The Corporate Ownership Of Animals, Darian M. Ibrahim

Faculty Publications

No abstract provided.

Dealing With Harrassment In All Of Its Forms, Michael T. Zugelder, Paul J. Champagne, Steven D. Maurer

Finance Faculty Publications

Workplace harassment in its many forms presents an increasingly serious challenge for employers, in terms of legal liability and its potential negative effect on employee behavior. This article reviews workplace harassment with attention to the affirmative defense that the Supreme Court has authorized and the factors the courts have considered in deciding whether the defense has been established. That analysis in turn is applied to a discussion of specific actions organizations might take to prevent harassment and create a more positive and effective organizational environment.

Animal Identification And Traceability Under The Us National Animal Identification System, Margaret Rosso Grossman

Journal of Food Law & Policy

The identification of animals has a long history in the United States. Since the late nineteenth century, livestock producers have used brands to mark their animals. Ear tags and other marks now identify individual animals or animals from a specific producer, but not all livestock are identified to facilitate traceability.

'Beastly Bureaucracy' Animal Traceability, Identification And Labeling In Eu Law, Bernd M.J. Van Der Meulen, Annelies A. Freriks

Journal of Food Law & Policy

This contribution discusses animal traceability, identification and labeling requirements in European Union (EU) law. The requirements are lex specialis to more general requirements in EU food law. The aim is to set out this body of EU law and provide some understanding regarding its background. Along with the article by Margaret Rosso Grossman, it enables the reader to compare the EU system to the United States system.

Sarbanes-Oxley's Structural Model To Encourage Corporate Whistleblowers, Richard E. Moberly

BYU Law Review

No abstract provided.

Nonprofit Takeovers: Regulating The Market For Mission Control, Dana Brakman Reiser

BYU Law Review

No abstract provided.

Bridging The Divide? The European Court Of First Instance Judgment In Ge/Honeywell, George S. Georgiev

Articles

No abstract provided.

The Business Of Employing People With Disabilities: Four Case Studies, Alexander A. Boni-Saenz, Allen W. Heinemann, Deborah S. Crown, Linda L. Emanuel

All Faculty Scholarship

This exploratory study examines employer attitudes towards people with disabilities in the labor market. Through in-depth, semi-structured interviews with senior management, human resources staff, directors of diversity, and hiring managers at four corporations, it pinpoints reasons why businesses chose to hire people with disabilities, investigates the perceived benefits and barriers to hiring people with disabilities, and identifies strategies for successfully hiring and retaining workers with disabilities. It fills a gap in examining the attitudes and decision-making processes of U.S. companies that have been leaders in hiring people with disabilities, as well as delving into the special issues of small businesses …

The "Branding Effect" Of Contracts, D. Gordon Smith

Faculty Scholarship

In his case study of the MasterCard IPO and its predecessor piece on the Google IPO, Victor Fleischer claims to find evidence of a branding effect of legal infrastructure. The branding effect is not aimed at reducing the potential for opportunism by a counterparty to a contract, but rather at increasing the attractiveness of a product to present and future users or improving the image of a company in the eyes of regulators, judges, and juries. In this essay commenting on Fleischer's work, I endorse the notion that deal structures have branding effects and position Fleischer's work within a larger …