Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
-
- Amy J. Sepinwall (2)
- Lawrence J. Trautman Sr. (2)
- Sang Yop Kang (2)
- Brian Farkas (1)
- Chang-hsien (Robert) TSAI (1)
-
- Christopher C. French (1)
- Evan M Purcell (1)
- George P Roach (1)
- Jaimie K. McFarlin (1)
- John W Verret (1)
- Kenneth Ayotte (1)
- Lawrence A. Hamermesh (1)
- Martin J. McMahon (1)
- Miguel Martínez (1)
- Mirit Eyal-Cohen (1)
- Patrick Martin (1)
- Philip M. Nichols (1)
- Robert Bartlett (1)
- Robert Rhee (1)
- Tamara R. Piety (1)
- William James Burton (1)
Articles 1 - 24 of 24
Full-Text Articles in Law
Four Pillars To Build A New Corporate Law Federalism: Crowd Funding Exchanges, A Codified Internal Affairs Doctrine, City-Based Incorporation, And An Arbitrated Corporate Code, J.W. Verret
John W Verret
This article examines the event window opened by the pending creation of new crowdfunding platforms, a new means of creating publicly traded equity for smaller, early stage firms than have ever been permitted by the Securities and Exchange Commission to access the public securities markets. That event window could support a completely new paradigm for the development of corporation law and completely upend existing wisdom about interstate competition to develop corporate governance. This article considers the economics of crowdfunding precursors which share some of the attributes of equity crowdfunding, and also considers the expected attributes of equity crowdfunding, to demonstrate …
When Subchapter S Meets Subchapter C, Martin J. Mcmahon Jr., Daniel L. Simmons
When Subchapter S Meets Subchapter C, Martin J. Mcmahon Jr., Daniel L. Simmons
Martin J. McMahon
It is often said that “an S corporation is a corporation that is taxed like a partnership.” This statement is incorrect. An S corporation resembles a partnership only in that it generally does not pay income taxes and its income and losses pass through to the shareholders and retain their character as they pass through. Also, like a partnership, basis adjustments to an S corporation shareholder's stock reflect allocations of income, expense, loss, and distributions. However, no other rules of subchapter K governing partnership taxation apply to S corporations. Most of the rules governing the relationship between an S corporation …
E-Commerce, Cyber, And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman
E-Commerce, Cyber, And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman
Lawrence J. Trautman Sr.
By now, almost without exception, every business has an internet presence, and is likely engaged in e-commerce. What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What potential risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials …
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
Miguel Martínez
The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.
Legal Entities As Transferable Bundles Of Contracts, Kenneth Ayotte, Henry Hansmann
Legal Entities As Transferable Bundles Of Contracts, Kenneth Ayotte, Henry Hansmann
Kenneth Ayotte
The large, modern business corporation is frequently organized as a complex cluster of hundreds of corporate subsidiaries under the common control of a single corporate parent. Our Article provides new theory and supportive evidence to help explain this structure. We focus, in particular on the advantages of subsidiary entities in providing the option to transfer some or all of the firm's contractual rights and obligations in the future. The theory not only sheds light on corporate subsidiaries but also illuminates a basic function of all types of legal entities, from partnerships to nonprofit corporations. We show that when, as is …
Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin
Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin
Patrick Martin
In February of 2011, Governor of Ohio John Kasich signed legislation that created JobsOhio. This has been a controversial program based on the method that it was implemented and some of the rules that govern the program.it. In November of 2013, ProgressOhio, a citizens advocacy group, challenged the constitutionality of the program but the suit was dismissed by the Ohio Supreme Court for lack of standing by the plaintiffs. There has been no court decision that adjudicates the program on the merits, only on the jurisdictional standing of a party to a suit that challenged the legislation. To date, only …
Proposed Amendments To Delaware’S Appraisal Statute Do Not Go Far Enough, William James Burton
Proposed Amendments To Delaware’S Appraisal Statute Do Not Go Far Enough, William James Burton
William James Burton
Recently, Delaware courts have experienced rising numbers of appraisal suites. This is the result of numerous favorable judicial opinions and the state of the current economy making statutory interest a favorable investment strategy for plaintiffs. Practitioners have coined the term appraisal arbitrage to denote this rise in appraisal suites which has been led by institutional investors. Many of these practitioners point to significant problems that have developed causing an industry wide inquiry of the Delaware’s current appraisal statute. In addition, defending the rise of appraisal litigation and, in particular, the accrual of statutory interest, defendants have raised notable theories that …
Can Peltz Score?: What’S Behind The May 13 Dupont Vs. Trian Contest, Lawrence A. Hamermesh
Can Peltz Score?: What’S Behind The May 13 Dupont Vs. Trian Contest, Lawrence A. Hamermesh
Lawrence A. Hamermesh
No abstract provided.
The Associational Hoax: Corporate Personhood & Shareholder Rights After Hobby Lobby And Citizens United, Jaimie K. Mcfarlin
The Associational Hoax: Corporate Personhood & Shareholder Rights After Hobby Lobby And Citizens United, Jaimie K. Mcfarlin
Jaimie K. McFarlin
No abstract provided.
Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett
Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett
Robert Bartlett
An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely held corporation plagued by intershareholder conflict. This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital (VC) finance, this Article demonstrates how this dichotomy obscures how all firms -- public and private -- often face the same …
Through The Lens Of Innovation, Mirit Eyal-Cohen
Through The Lens Of Innovation, Mirit Eyal-Cohen
Mirit Eyal-Cohen
The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of innovation. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Innovation turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviations as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Using …
The Neomercantilist Fallacy And The Contextual Reality Of The Foreign Corrupt Practices Act, Philip Nichols
The Neomercantilist Fallacy And The Contextual Reality Of The Foreign Corrupt Practices Act, Philip Nichols
Philip M. Nichols
The Foreign Corrupt Practices Act is domestic legislation and should be analyzed as such. This article addresses a persistent failure in analysis of the Act, by scholars and policymakers alike. Many discussions of the Act approach it from a neomercantilist perspective. This approach contains three flaws. First, whereas neomercantilism envisions manipulation of the market to give advantage to national champion industries, the Foreign Corrupt Practices Act was adopted for the purpose of strengthening and enhancing the integrity of the global market. A neomercantilist perspective is contrary to the purpose of the Act. Second, this article shows that neomercantilism fundamentally misunderstands …
The Family Llc: A New Approach To Insuring Dynastic Wealth, Evan M. Purcell
The Family Llc: A New Approach To Insuring Dynastic Wealth, Evan M. Purcell
Evan M Purcell
No abstract provided.
Employee Say-On-Pay: Monitoring And Legitimizing Executive Compensation, Robert J. Rhee
Employee Say-On-Pay: Monitoring And Legitimizing Executive Compensation, Robert J. Rhee
Robert Rhee
This Article proposes the adoption of employee say-on-pay in corporate governance. The board would benefit from an advisory vote of employees on executive compensation. This proposal is based on two considerations: firstly, the benefits of better monitoring and reduced agency cost in corporate governance; secondly, the link between executive compensation and income inequity and wealth disparity in the broader economy. If adopted, shareholders and employees would monitor executive performance and pay at different levels. Shareholders through the market mechanism can only monitor at the level of public disclosures and share price. Employees can leverage private information. Non-executive managers in particular …
Optimized Theft: Why Some Controlling Shareholders “Generously” Expropriate From Minority Shareholders, Sang Yop Kang
Optimized Theft: Why Some Controlling Shareholders “Generously” Expropriate From Minority Shareholders, Sang Yop Kang
Sang Yop Kang
Although controlling shareholder agency problems have been well studied so far, many questions still remain unanswered. In particular, an important puzzle in a bad-law jurisdiction is: why some controlling shareholders (“roving controllers”) loot the entire corporate assets at once, and why others (“stationary controllers”) siphon a part of corporate assets on a continuous basis. To solve this conundrum, this Article provides analytical frameworks exploring the behaviors and motivations of controlling shareholders. To begin with, I reinterpret Olson’s political theory of “banditry” in the context of corporate governance in developing countries. Based on a new taxonomy of controlling shareholders (“roving controllers” …
Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman
Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman
Brian Farkas
Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …
Managing Cyberthreat, Lawrence J. Trautman
Managing Cyberthreat, Lawrence J. Trautman
Lawrence J. Trautman Sr.
Cyber security is an important strategic and governance issue. However, because most corporate CEOs and directors have no formal engineering or information technology training, it is understandable that their lack of actual cybersecurity knowledge is problematic. Particularly among smaller companies having limited resources, knowledge regarding what their enterprise should actually be doing about cybersecurity can’t be all that good. My goal in this article is to explore the unusually complex subject of cybersecurity in a highly readable manner. First, an examination of recent threats is provided. Next, governmental policy initiatives are discussed. Third, some basic tools that can be used …
Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees, George P. Roach
Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees, George P. Roach
George P Roach
Compensation Forfeiture:
Stacking Remedies Against Disloyal Agents and Employees
Abstract
Four cases against outlaw CEO’s who defrauded their companies are reviewed to show the major impact that compensation forfeiture contributes to the total package of remedies awarded. The dual goals of remedies for breach of fiduciary duty of compensation and deterrence result in multiple remedies, generally including a remedy at law to compensate and a remedy in equity to disgorge any benefit from the breach. For claims that the fiduciary or agent breached her duty of loyalty, a third remedy of compensation forfeiture can be added or ‘stacked’ on top …
Re-Envisioning Investors’ Anti-Director Rights Index: Theory, Criticism, And Implications, Sang Yop Kang
Re-Envisioning Investors’ Anti-Director Rights Index: Theory, Criticism, And Implications, Sang Yop Kang
Sang Yop Kang
‘Law and Finance’ theory – which offers analytical frameworks to measure the protection of public investors and the quality of corporate governance – has dominated the comparative corporate governance scholarship in the last decade. So far, many proponents and critics have had debates on the relevance of the theory and the implications of the theory’s empirical studies. Several important points in relation to shareholder protection, however, have been highly neglected in these debates. In particular, the significance of one-share-one-vote (OSOV) rule has been inappropriately underestimated. In response, this Article explores (1) why OSOV is an utmost critical component in corporate …
Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall
Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall
Amy J. Sepinwall
In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the corporate …
Why Personhood Matters, Tamara R. Piety
Why Personhood Matters, Tamara R. Piety
Tamara R. Piety
One of the most controversial aspect of the Supreme Court's decisions in Citizens United and Hobby Lobby is its treatment of corporate personhood. Many members of the public object to the notion that corporations should have the same rights as human beings. Yet many scholars claim that this concern is misplaced. In this article I argue that concern about corporate personhood is not misplaced because the personhood metaphor conceals the degree to which there has not been an adequate justification given for extending fundamental rights to corporations. Focusing on personhood allows us to push on the metaphor to ask whether …
Privacy And Organizational Persons, Eric W. Orts, Amy Sepinwall
Privacy And Organizational Persons, Eric W. Orts, Amy Sepinwall
Amy J. Sepinwall
This Article responds to an argument made recently by Elizabeth Pollman that corporations should not be deemed to have “constitutional privacy rights” in “most circumstances.” Setting forth an alternative conception of organizational rights and examining different meanings of “privacy,” the Article contends that courts should tread more carefully and that it may often be sensible and recommended to allow corporations and other organizations to assert some constitutional “rights of privacy.” More specifically, the Article suggests that organizations may enjoy “primary” rights, which reside with the organizations in the first instance or “secondary” rights, which are asserted by an organization to …
The Failure Of Corporate Internal Controls And Internal Information Sharing: A Conceptual Framework For Taiwan, Chang-Hsien Tsai
The Failure Of Corporate Internal Controls And Internal Information Sharing: A Conceptual Framework For Taiwan, Chang-Hsien Tsai
Chang-hsien (Robert) TSAI
Although East Asian jurisdictions such as Taiwan have been adopting similar models of Anglo-American independent directors and audit committees in recent years, we can find that common issues are failure of internal controls, in general, and dysfunctional internal information-sharing mechanisms, in particular. To accommodate Taiwan’s reform trend towards furthering the adoption of independent directors and audit committees, this paper offers a roadmap for conceptual solutions which are harmonic with each other as prerequisites to enable monitors of management to have the incentives and means to exercise their oversight. First, the board’s duty to monitor should be reiterated while being transplanted …
The Role Of The Profit Imperative In Risk Management, Christopher French
The Role Of The Profit Imperative In Risk Management, Christopher French
Christopher C. French