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Articles 1 - 7 of 7
Full-Text Articles in Law
Presidential Control Of The Elite "Non-Agency", Kimberly L. Wehle
Presidential Control Of The Elite "Non-Agency", Kimberly L. Wehle
All Faculty Scholarship
This article examines the constitutionality of legislation creating a new form of independent agency – in effect, a “non-agency” agency residing in the no-man’s land between Articles I and II of the Constitution. In the Sarbanes-Oxley Act, Congress established the Public Company Accounting Oversight Board (“PCAOB” or “Board”) and endowed it with massive governmental powers while insulating it from traditional mechanisms for ensuring accountability. Congress deemed the PCAOB not an agency, rendered it substantially immune from judicial review, empowered Board members to set their own salaries and budget, and gave the embattled Securities and Exchange Commission – not the President …
Art Deaccessions And The Limits Of Fiduciary Duty, Sue Chen
Art Deaccessions And The Limits Of Fiduciary Duty, Sue Chen
Duke Law Student Papers Series
Art deaccessions prompt lawsuits against museums, and some commentators advocate using the stricter trust standard of care, instead of the prevailing corporate standard (business judgment rule), to evaluate the conduct of non‑profit museum boards. This Article explores the consequences of adopting the trust standard by applying it to previously unavailable deaccession policies of prominent art museums. It finds that so long as museum boards adhere to these policies, their decisions would satisfy the trust standard. This outcome illustrates an important limitation of fiduciary law: the trust standard evaluates procedural care but cannot assess deaccessions on their merits. Yet this limitation, …
Keynote Address: The Conflicted Trustee Dilemma, Steven L. Schwarcz
Keynote Address: The Conflicted Trustee Dilemma, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.
Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman
Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …
The Proxy Advisory & Corporate Governance Industry: The Case For Increased Oversight And Control, Tamara C. Belinfanti
The Proxy Advisory & Corporate Governance Industry: The Case For Increased Oversight And Control, Tamara C. Belinfanti
Articles & Chapters
The proxy advisory and corporate governance industry plays a significant role in shareholder voting and in the formulation of corporate governance policy. The industry operates with relatively little accountability and virtually free from regulatory oversight. Understanding the relationship between this industry and mutual funds, who in the aggregate are the largest owners of publicly traded shares in the United States, is critical to understanding issues of shareholder rights, the meaning of the right to vote in corporate elections, and the role that institutional investors, like mutual funds, play in the corporate landscape.
Mutual funds exercise their substantial voting power by …
Ratification: Useful But Uneven, Deborah A. Demott
Ratification: Useful But Uneven, Deborah A. Demott
Faculty Scholarship
Ratification permits a principal to determine to be bound by the legal consequences of action taken by an agent after the fact of the agent’s conduct when the principal would otherwise not be bound. By ratifying a principal may clarify the effects of uncertainty, furnishing reassurance to the agent, the third party with whom the agent dealt, and other parties interested in the status of the transaction. However, at the point the principal decides whether to ratify, the principal knows facts not known to agent and third party at the time of the agent’s unauthorised transaction, in particular subsequent developments …
Agency Statutory Interpretation And Policymaking Form, Kevin M. Stack
Agency Statutory Interpretation And Policymaking Form, Kevin M. Stack
Vanderbilt Law School Faculty Publications
In this short symposium contribution, I take up this invitation to examine the relevance of the agency's policymaking form to its approach to statutory interpretation. The core point I wish to advance is a relatively basic one--namely, that an agency's approach to statutory interpretation is in part a function of the policymaking form through which it acts. My strategy is to examine two of the most important policymaking forms--notice-and-comment rulemaking and formal adjudication--and to argue that the considerations that distinguish agency and judicial interpretation have a markedly different place in these two agency policymaking forms. For purposes of exposition, I …