Law Commons^™

Entrepreneurs On Horseback: Reflections On The Organization Of Law, Darian M. Ibrahim

Darian M Ibrahim

“Law and entrepreneurship” is an emerging field of study. Skeptics might wonder whether law and entrepreneurship is a variant of that old canard, the Law of the Horse. In this Essay, we defend law and entrepreneurship against that charge and urge legal scholars to become even more engaged in the wide-ranging scholarly discourse regarding entrepreneurship. In making our case, we argue that research at the intersection of entrepreneurship and law is distinctive. In some instances, legal rules and practices are tailored to the entrepreneurial context, and in other instances, general rules of law find novel expression in the entrepreneurial context. …

The Trouble With Stockjobbers: The South Sea Bubble, The Press And The Legislative Regulation Of The Markets, Benedict Sheehy

Benedict Sheehy

Abstract: The South Sea Bubble Act of 1721 is often taken as the first securities legislation. Further it is understood to be a response to a stock market scandal. In fact, the Act was enacted prior to the scandal and indeed the likely cause of the collapse of the stock bubble itself. This article reviews the historical context, including the finance of government of the era, the development of the South Sea Company and its bubble, the legislation, burst and subsequent effects. It places securities legislation in its historical context as part of a broader movement in corporate law, shifting …

Substitutes For Insider Trading, Ian Ayres, Joseph Bankman

Ian Ayres

When insider trading prohibitions limit the ability of insiders (or of a corporation itself) to use material non-public information to trade a particular firm’s stock, there may be incentive to use the information to trade instead on the stock of that firm’s rivals, suppliers, customers, or the manufacturers of complementary products. We refer to this form of trading as trading in stock substitutes. Stock substitute trading by a firm is legal. In many circumstance, substitute trading by employees is also legal. Trading in stock substitutes may be quite profitable, and there is anecdotal evidence that employees often engage in such …

The Fortunes & Foibles Of Exchange-Traded Funds, William A. Birdthistle

William Birdthistle

One of the most dynamic and complex new investment vehicles on the market today is the exchange-traded fund, a security that provides the diversification of a mutual fund but trades on an exchange like a stock. In just over a decade, the number of ETFs has proliferated to well over 500, attracting almost half a trillion dollars in investment. Most of that growth has occurred in just the past two years, and ETFs are projected to continue growing at a pace far faster than hedge funds and mutual funds in the coming years. Yet for all this extraordinary growth, legal …

Guests At The Table?: Independent Directors In Family-Influenced Public Companies, Deborah A. Demott

Deborah A DeMott

By some measures, family-controlled companies account for about a third of public companies in the United States. Public companies that retain characteristics of family companies pose a series of intriguing questions about corporate governance that center in particular on the roles and duties of directors. These are surprisingly unexplored in legal scholarship. Although concentrated ownership is more extensive in many capital markets outside the United States, numerous recent examples raise questions about governance within publicly-held family companies. In such companies, shareholders who are members of the founding family often have perspectives and interests that diverge from those of non-family public …

The One Minute Manager Prepares For Mediation: A Multidisciplinary Approach To Negotiation Preparation, Donald R. Philbin, Jr.

Donald R. Philbin Jr.

No abstract provided.

The Limits Of Hedge Fund Activism, Robert Thompson

Robert Thompson

Abstract Hedge funds have burst on to the corporate governance scene. Not just as one player among many, but one with the potential to be the long-sought shareholder champion who can effectively discipline management in a world where ownership is separated from control. The argument has been made, with some justification, that these investors face different economic incentives than do traditional institutional investors such as mutual funds or public or private pension funds. The business plan of a typical hedge fund is more compatible with shareholder activism and they lack some of the conflicts of interests that have deterred traditional …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

No abstract provided.

Insider Waiting: The New Loophole Under 10b5-1, Maureen Mcgreevy

Maureen McGreevy

In October, 2000, the Securities and Exchange Commission (SEC) enacted Rule 10b5-1 which provides an affirmative defense for individuals charged with insider trading. The Rule states that a person is not deemed to have traded on the basis of material non-public information if, before he or she gained knowledge of that material, non-public information, the person had entered into a trading plan under which he or she contracted to sell the securities in question. As a result of this rule, many corporate executives have established what have become to be known as 10b5-1 trading plans in order to protect themselves …

The Corporate Common Good: The Right And Obligation Of Managers To Do Good To Others, Edward Lyons

Edward C. Lyons

In this Article we articulate a model of managerial freedom - and even obligation - to engage in philanthropic activity differing in significant respects from that described by Germain Grisez in his influential work of Christian ethics "The Way of the Lord Jesus: Difficult Moral Questions." We argue that Grisez's conception of a corporation as essentially ordered to the economic benefit of its stakeholders unnecessarily restricts a corporate manager's freedom of action. While Grisez denies that bald profit maximization is an appropriate standard for economic activity, it is difficult to avoid the conclusion that he eventually falls back into what …

Bulletproof: Mandatory Rules For Deal Protection, Brian Jm Quinn

Brian JM Quinn

No abstract provided.

The Short And Puzzling Life Of The “Implicit Minority Discount” In Delaware Appraisal Law, Lawrence A. Hamermesh, Michael L. Wachter

Lawrence A. Hamermesh

The Institute Of Delaware Corporate And Business Law New Name, New Directions, Lawrence A. Hamermesh

Lawrence A. Hamermesh

No abstract provided.

An Older, Balder Critique Of ‘Toward Common Sense And Common Ground’, Lawrence A. Hamermesh

Lawrence A. Hamermesh

No abstract provided.

Being Informed Does Matter: Fine Tuning Gross Negligence Twenty Plus Years After Van Gorkom, Bernard S. Sharfman

Bernard S Sharfman

This article first establishes that there are still a number of reasons why being informed does matter, despite the ability to incorporate an exculpation clause into a Delaware corporation’s certificate of incorporation. This is followed by an explanation of how Delaware’s business judgment rule became transformed from a doctrine of abstention to a standard of review in the context of procedural due care. Throughout this article, it is understood that the business judgment rule exits within a framework of corporate authority and accountability and that it serves as a significant tool for the protection of corporate board authority. The article …

In Re Ehmann Ii: Now You See It, Now You Don’T, Thomas Geu, Thomas Rutledge

Thomas E. Geu

No abstract provided.

Corporate Militaries And States: Actors, Interactions And Reactions, Benedict Sheehy

Benedict Sheehy

Following the military forces of the US and the UK, PMF's make up the third largest contingent in Iraq. The article examines the interaction between states and PMF's, problems with their use for both contracting states and those where the PMF is operating. It provides six case studies and an examination of state legal responses.

Shareholders, Unicorns And Stilts: An Analysis Of Shareholder Property Rights, Benedict Sheehy

Benedict Sheehy

Abstract: Shareholders rights advocates argue that shareholders have the right to control the corporation. This article examines the basis for the claims. It begins with an analysis of rights, then moves to an analysis of legal rights, which is followed by an analysis of property rights as a species of legal rights. The article then examines the historical context, rationale and development of shareholder rights which leads to the analysis of current shareholders’ rights. The article concludes with some comments and suggestions concerning future development of corporate governance thinking.

Scrooge—The Reluctant Stakeholder, Benedict C. Sheehy

Benedict Sheehy

Abstract: Corporations law around the world is moving in the direction of the shareholder primacy model, common in the USA and other common law countries. Lawyers, academics and public policy analysts are divided as to the merits of the model and its main competitor, the stakeholder model. The gist of arguments usually hinge on economics. This article examines the claims for and against the two models on their own terms, and suggests that law has a unique contribution to make to the development of the corporation and society.

Guess Who’S Coming To Dinner: The Bankruptcy Trustee's Ability To Become A Member Of An Llc And The Ehmann Decision, Thomas Geu, Thomas Rutledge

Thomas E. Geu

No abstract provided.

Adr And The 'Vanishing Trial': The Growth And Impact Of 'Alternative Dispute Resolution', Thomas J. Stipanowich

Thomas J. Stipanowich

In the past quarter-century, significant changes have occurred in the ways lawyers approach conflict. There have been unprecedented efforts to develop strategies aimed at more efficient, less costly, and more satisfying resolution of conflict, including more extensive and appropriate use of mediation and other “alternative dispute resolution” (ADR) approaches. This study examines what we know and do not know about the growth and impact of ADR in federal and state courts, in the business sector, and in employment and consumer settings. The analysis examines the relationship between ADR and court trial, but also underlines the broader uses of and rationale …

Australia’S Eggleston Principles In Takeover Law: Social And Economic Sense?, Benedict Sheehy

Benedict Sheehy

Australia has yet to give up its distinctive approach to take-over law. Although there has been and continues to be pressure to submit to the US model, this article argues that to do so is not likely to produce the desired effect while giving up something of particular value to Australians.

Rethinking Corporate Federalism In The Era Of Corporate Reform, Renee Jones

Renee Jones

No abstract provided.

The Aba Task Force On Corporate Responsibility And The 2003 Changes To The Model Rules Of Professional Conduct, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

Report Of The American Bar Association Task Force On Corporate Responsibility, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

The Albright Decision - Why An Smllc Is Not An Appropriate Asset Protection Vehicle, Thomas Geu, Thomas Rutledge

Thomas E. Geu

No abstract provided.

Lawyer Responsibilities In The New Disclosure & Corporate Governance Regime, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

"True Human Community": Catholic Social Thought, Aristotelian Ethics, And The Moral Order Of The Business Company, Scott T. Fitzgibbon

Scott T. FitzGibbon

No abstract provided.