Law Commons^™

Some Thoughts On Proposed Revisions To The Organizational Guidelines, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

In this article, Professor O'Sullivan, who served as the reporter for the U.S. Sentencing Commission's Ad Hoc Advisory Group for Organizational Sentencing Guidelines, reflects on that Group's work. She concludes that the potential impact of many of the policy fixes within the power of the Sentencing Commission is dwarfed by decisions that lie solely within the power of the Department of Justice or Congress. Specifically, Department of Justice decisions regarding what constitutes organizational "cooperation" may have a determinative impact on organizational incentives regarding compliance efforts and decisions to investigate, self-report, and cooperate in the remediation of organizational wrongdoing. Professor O'Sullivan …

Exchanges Of Multiple Stocks And Securities In Corporate Divisions Or Acquisitive Reorganizations, Douglas A. Kahn, Jeffrey S. Lehman

Articles

If specified conditions are satisfied, the Internal Revenue Code provides nonrecognition for gain or loss realized when stocks and securities of one corporation are exchanged for stocks and securities of another corporation. When the exchange is made as part of a corporate division (a split-off or a split-up), the principal nonrecognition provision is section 355; and when the exchange is made as part of an acquisitive reorganization, the principal nonrecognition provision is section 354. Complete nonrecognition is provided only when stock is exchanged solely for stock and securities are exchanged solely for securities of no greater principal amount. If, in …

The Public And Private Faces Of Derivative Lawsuits, Randall S. Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Derivative suits, long the principal vehicle for discussions about representative litigation in corporate and securities law, now share the stage with younger cousins - securities fraud class actions and state law fiduciary duty class actions. At the same time alternative governance vehicles - independent directors, auditors and other reforms that have followed in the wake of Enron - potentially diminish the relative place of litigation such as derivative suits. This article presents data from all derivative suits filed in Delaware over a two-year period. We find a relatively small number, certainly as compared to fiduciary class action and securities fraud …

The Entrepreneurship Effect: An Accidental Externality In The Federal Income Tax, Leandra Lederman

Articles by Maurer Faculty

Case law and commentators sometimes speak as if all income-producing activities are taxed similarly. However, that simply is not true for individuals. Although the expenses and losses of business activities generally are deductible from income of any source and net losses can be carried to other tax years, individuals' investment expenses and losses generally are deductible only from investment income. Although many of the provisions restricting investment-related deductions were enacted at different times, and each one has its own rationale, the combined effect of these provisions on individual investors is a systematic preference for business losses over investment losses.

Economists …

Whistleblowing And The Public Director: Countering Corporate Inner Circles, James A. Fanto

Faculty Scholarship

No abstract provided.

Enron.Org: Why Sarbanes-Oxley Will Not Ensure Comprehensive Nonprofit Accountability, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

Subtle Hazards Revisited: The Corruption Of A Financial Holding Company By A Corporate Client's Inner Circle, James A. Fanto

Faculty Scholarship

No abstract provided.

A User's Guide To The New Uniform Limited Partnership Act, Daniel S. Kleinberger

Faculty Scholarship

The shelf life on uniform entity acts seems to be decreasing. The original Uniform Partnership Act (UPA) lasted eight decades, and the original Uniform Limited Partnership Act (ULPA (1916)) lasted six. In contrast, the 1976 Revised Uniform Limited Partnership Act (RULPA (1976)) warranted major revisions after just nine years (RULPA (1985)), and only sixteen years later NCCUSL recommended to the states that they adopt ULPA (2001) to replace RULPA in toto. NCCUSL's Revised Uniform [General] Partnership Act - RUPA - was first approved in 1992 and went through five official versions in its first five years of existence. NCCUSL's Uniform …

Gatekeeping, Peter B. Oh

Articles

Gatekeeping is a metaphor ubiquitous across disciplines and within fields of law. Generally, gatekeeping comprises an actor monitoring the quality of information, products, or services. Specific conceptions of gatekeeping functions have arisen independently within corporate and evidentiary law. Corporate gatekeeping entails deciding whether to grant or withhold support necessary for financial disclosure; evidentiary gatekeeping entails assessing whether expert knowledge is relevant and reliable for admissibility. This article is the first to identify substantive parallels between gatekeeping in these two contexts and to suggest their cross-treatment. Public corporate gatekeepers, like their judicial evidentiary analogues, should bear a duty of reliable monitoring.

Learning Business Law By Doing It: Real Transactions In Law School Clinics, Eric J. Gouvin

Faculty Scholarship

This Article discusses the business clinic movement and how legal educators view them as being an excellent vehicle for inculcating the values and practices that business lawyers hold dear. Business clinics may help students better appreciate the challenges of business lawyering, which they sometimes misunderstand as merely a forms practice. The Author believes that by putting students in the middle of real transactions, they gain a deeper understanding of the subtleties of making a transaction come together.

Proportionate Liability Under The Cbca In The Context Of Recent Corporate Governance Reform: Canadian Auditors In The Wrong Place At The Wrong Time?, Poonam Puri, Stephanie Ben-Ishai

Articles & Book Chapters

In the recent Canada Business Corporations Act' amendments implementing a proportionate liability scheme, auditors appear to be winners. This is consistent with the trend in the past several years as a result of which Canadian auditors have been successful in narrowing the scope of their liability both through legislation and through common law. Going forward, however, it is fair to say that auditors will be losers unless the accounting profession re-evaluates its role and responsibilities to its stakeholders. Given the accounting and corporate governance scandals North America has witnessed in the past few years, as well as the actual and …

The Reporter's Rejoinder, Daniel S. Kleinberger

Faculty Scholarship

The word "rejoinder" connotes a reply to criticism, and that connotation sets the scope of this short essay. This Rejoinder will leave aside (albeit with thanks) the articles that explain the background to, the context for, or particular aspects of the Uniform Limited Partnership Act (2001). Instead, this Rejoinder will focus on the three articles that purport to find a blemish (Professor Bishop), a general theoretical deficiency (Mr. Callison and Dean Vestal), or a fundamental misconception (Professor Ribstein) in the new Act.

Diversity Jurisdiction For Llcs? Basically, Forget About It, Daniel S. Kleinberger, Carter G. Bishop

Faculty Scholarship

No abstract provided.

Charging Orders And The New Uniform Limited Partnership Act: Dispelling The Rumors Of Disaster, Daniel S. Kleinberger, Carter G. Bishop, Thomas Geu

Faculty Scholarship

Last year, an article published in this magazine focused on the charging order as "the Exclusive Remedy Against a Partnership Interest" and announced the "[s]hocking [r]evelation" that ULPA (2001)--the new Uniform Limited Partnership Act--undermines the "exclusive remedy" limitation on charging orders. The authors asserted categorically that, "from an asset protection perspective, the 2001 Act is considerably less protective of a partner's partnership interest than the 1976 Act." Elizabeth M. Schurig & Amy P. Jetel, A Charging Order Is the Exclusive Remedy Against a Partnership Interest: Fact or Fiction?, Prob. & Prop. 57, 58 (Nov./Dec. 2003).

As this article will show, …