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Articles 1 - 30 of 130
Full-Text Articles in Law
On Public Versus Private Provision Of Corporate Law, Gillian Hadfield, Eric Talley
On Public Versus Private Provision Of Corporate Law, Gillian Hadfield, Eric Talley
Gillian K Hadfield
Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This paper investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of "regulatory competition" and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of …
Locked In: The Competitive Disadvantage Of Citizen Shareholders, Anne M. Tucker
Locked In: The Competitive Disadvantage Of Citizen Shareholders, Anne M. Tucker
Anne Tucker
In this Essay, I challenge the conventional corporate law wisdom that unhappy mutual fund investors paying high fees don’t need litigation or regulation to protect their interests because they should simply exit a fund and reinvest elsewhere. The exit solution, advanced by Professors John Morley and Quinn Curtis in Taking Exit Rights Seriously provided an elegantly simply solution to the problem of unhappy indirect investors (e.g., mutual fund investors) given that they are often low-dollar, low-incentive, rationally-apathetic investors facing enormous information asymmetries and collective action problems. According to their view, competition produced by exit, or the threat of exit, is …
Summary Of Recent Amendments To Business Corporation Code, Limited Partnership Act, And Limited Liability Company Act With Respect To Entity Conversions, Cassady W. Brewer
Summary Of Recent Amendments To Business Corporation Code, Limited Partnership Act, And Limited Liability Company Act With Respect To Entity Conversions, Cassady W. Brewer
Cassady V. Brewer
No abstract provided.
Gift Horses, Choosy Beggars, And Other Reflections On The Role And Utility Of Social Enterprise Law, Cassady V. Brewer
Gift Horses, Choosy Beggars, And Other Reflections On The Role And Utility Of Social Enterprise Law, Cassady V. Brewer
Cassady V. Brewer
The U.S. law of social enterprise is growing rapidly. Since 2008, one-half of all U.S. states have modified their business law to establish special legal forms designed for social enterprise. Meanwhile, even with twenty-five states adopting special laws for social enterprise, the legal debate surrounding social enterprise continues. Rather than rehashing that debate, this essay sets forth the author’s personal perspective on the role and utility of social enterprise. The essay argues that, except in limited circumstances, social enterprise is superior to traditional philanthropy when it comes to solving longstanding humanitarian or environmental problems. U.S. business law thus should continue …
Report From Chair Of Partnership Committee, Cassady V. Brewer
Report From Chair Of Partnership Committee, Cassady V. Brewer
Cassady V. Brewer
No abstract provided.
Algunas Notas Sobre La Caducidad Del Derecho Al Cobro De Dividendos, Marco Andrei Torres Maldonado
Algunas Notas Sobre La Caducidad Del Derecho Al Cobro De Dividendos, Marco Andrei Torres Maldonado
Marco Andrei Torres Maldonado
No abstract provided.
In Defense Of Corporate Persons, Kent Greenfield
In Defense Of Corporate Persons, Kent Greenfield
Kent Greenfield
This essay is a critique of this attack on corporate personhood. It explains that the corporate separateness - corporate “personhood” - is an important legal principle as a matter of corporate law. What’s more, as a matter of constitutional law, corporate “personhood” deserves a more nuanced analysis than has been typically offered in arguing in favor of an amendment to overturn Citizens United. Indeed, the concept of corporate “personhood” can in fact be marshaled in arguments against corporations being able to assert constitutional rights. In the nascent category of cases brought by corporations asserting rights of religious freedom, for example, …
A Skeptic's View Of Benefit Corporations, Kent Greenfield
A Skeptic's View Of Benefit Corporations, Kent Greenfield
Kent Greenfield
Over the last few years there has been a shift in the core ideas of business with respect to corporate responsibility. A new type of business classification called benefit corporations is gaining popularity in the United States. Benefit corporations are required to have a positive impact on society and the planet, and to meet a higher level of accountability and transparency. However, will benefit corporations truly change the industry and world positively? This article provides for skepticism about the positive affects benefit corporations are purported to have on business. One reason is that benefit corporations are completely voluntary; thus, the …
Lawyers And Fools: Lawyer-Directors In Public Corporations, Lubomir P. Litov, Simone M. Sepe, Charles K. Whitehead
Lawyers And Fools: Lawyer-Directors In Public Corporations, Lubomir P. Litov, Simone M. Sepe, Charles K. Whitehead
Lubomir P. Litov
The accepted wisdom—that a lawyer who becomes a corporate director has a fool for a client—is outdated. The benefits of lawyer-directors in today’s world significantly outweigh the costs. Beyond monitoring, they help manage litigation and regulation, as well as structure compensation to align CEO and shareholder interests. The results have been an average 9.5% increase in firm value and an almost doubling in the percentage of public companies with lawyer-directors. This Article is the first to analyze the rise of lawyer-directors. It makes a variety of other empirical contributions, each of which is statistically significant and large in magnitude. First, …
Addressing The Tension Between Directors' Duties And Shareholder Rights - A Tale Of Two Regimes, Sean Vanderpol, Edward J. Waitzer
Addressing The Tension Between Directors' Duties And Shareholder Rights - A Tale Of Two Regimes, Sean Vanderpol, Edward J. Waitzer
Edward J. Waitzer
There is a basic tension inherent in the regulation of corporations between the role to be played by boards and that to be played by shareholders. Boards have the statutory responsibility to manage the business and affairs of the corporation, and owe an express duty to act in the best interests of the corporation. Shareholders, however, are the ultimate ‘owners’ of the corporation, and have the ability to elect and remove directors. Canadian courts and securities regulators have long struggled with this tension in determining the roles to be played by each in transactions that pose the potential for conflicts …
Peoples, Bce, And The Good Corporate "Citizen", Edward J. Waitzer, Johnny Jaswal
Peoples, Bce, And The Good Corporate "Citizen", Edward J. Waitzer, Johnny Jaswal
Edward J. Waitzer
This article considers the use of various legal instruments to advance a more expansive but well-defined view of directors' duties and discretion--a view which focuses on the longer-term interests of the corporation. We begin with an attempt to clarify the nature of directors' statutory duties under Canadian corporate law. We then consider the recent decisions of the Supreme Court of Canada in Peoples Department Stores Inc. (Trustee of) v. Wise and BCE v. 1976 Debentureholders, in which the Court took a broad view of corporate purpose, but failed to provide clear logic or operational guidance as to consequential directorial responsibilities. …
Mediating Rights And Responsibilities In Control Transactions, Sean Vanderpol, Edward J. Waitzer
Mediating Rights And Responsibilities In Control Transactions, Sean Vanderpol, Edward J. Waitzer
Edward J. Waitzer
There is a growing debate as to the relative merits and consequences of a shift to a more shareholder-centric corporate governance framework. How much "direct democracy" makes sense in corporate decision making? If power is to be transferred to shareholders, should responsibilities be imposed (and, if so, how)? These issues have long been addressed by courts and regulators in the context of unsolicited control transactions. In its recent Air Products & Chemicals v. Airgas decision, the Delaware Chancery Court canvassed the evolution of its law on this point and concluded that implicit in the power (and responsibility) of the board …
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
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
Poonam Puri
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 …
Politics Of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, And Human Rights, Aaron A. Dhir
Politics Of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, And Human Rights, Aaron A. Dhir
Aaron A. Dhir
This article considers the relationship between social disclosure and corporate accountability in Canada. It focuses on the potential benefits social disclosure can provide in terms of the overall human rights project. I explore this issue with reference to the broader theoretical frameworks of new governance and reflexive law. White I ground my analysis in these analytical approaches. I distance myself slightly from particular arguments in the literature to date: specifically, the argument that the disclosure process will result in self-correcting behaviour on the part of corporate decision makers. Rather, I argue that the value of social disclosure may lie more …
Individual And Collective Sovereignty In The Corporate Enterprise (Reviewing Frank H. Easterbrook & Daniel R. Fishel, The Economic Structure Of Corporate Law (1991) And Robert N. Bellah Et Al., The Good Society (1991), Lyman P. Q. Johnson
Lyman P. Q. Johnson
Not available.
The Sarbanes-Oxley Act And Fiduciary Duties, Lyman P. Q. Johnson, Mark A. Sides
The Sarbanes-Oxley Act And Fiduciary Duties, Lyman P. Q. Johnson, Mark A. Sides
Lyman P. Q. Johnson
This article explores the implications of the Sarbanes-Oxley Act of 2002 for fiduciary duty analysis in corporate law. The article examines those provisions of the Act, and recent SEC, NYSE and NASDAQ rules, that most pointedly bear on corporate governance. The article develops in detail exactly how Sarbanes-Oxley and those rules may alter state fiduciary duty law. Sarbanes-Oxley makes unprecedented federal inroads into the area of corporate governance and, although the fact of federal incursion into corporate governance is important in its own right, the more intriguing issue concerns the eventual interplay between federal and state law. Specifically, on various …
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
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
Stephanie Ben-Ishai
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 …
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 …
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 …
Bond Limited Liability, Robert J. Rhee
Bond Limited Liability, Robert J. Rhee
Robert Rhee
Limited liability is considered a “birthright” of corporations. The concept is entrenched in legal theory, and it is a fixed reality of the political economy. But it remains controversial. Scholarly debate has been engaged in absolute terms of defending the rule or advocating its abrogation. Though compelling, these polar positions, often expressed in abstract arguments, are associated with disquieting effects. Without limited liability, efficiency may be severely compromised. With it, involuntary tort creditors bear some of the cost of an enterprise. Most other proposals for reforming limited liability have been incremental, such as modifying veil piercing. However, neither absolutism nor …
El Dominio Fiduciario Como Propiedad Ad Tempus Y La Responsabilidad Civil Del Fiduciario, Marco Andrei Torres Maldonado
El Dominio Fiduciario Como Propiedad Ad Tempus Y La Responsabilidad Civil Del Fiduciario, Marco Andrei Torres Maldonado
Marco Andrei Torres Maldonado
No abstract provided.
The New York Limited Liability Company Law At Twenty: Past, Present & Future, Meredith R. Miller
The New York Limited Liability Company Law At Twenty: Past, Present & Future, Meredith R. Miller
Meredith R. Miller
The New York Limited Liability Company Law (“LLC Law”) has turned 20. This occasion presents an opportunity to reflect on its past, present and future.
Now You See It, Now You Don’T: The Comings And Goings Of Disregarded Entities, Martin J. Mcmahon Jr.
Now You See It, Now You Don’T: The Comings And Goings Of Disregarded Entities, Martin J. Mcmahon Jr.
Martin J. McMahon
While state law recognizes an LLC as a distinct type of entity, an LLC is not a distinct entity for federal tax purposes. An LLC that has two or more owners is treated as either a corporation or a partnership, while an LLC with a single owner will be disregarded for federal income tax purposes unless it elects to be treated as a corporation. In addition to single-member LLCs, the Code and Regulations recognize a second type of disregarded entity – the qualified subchapter S subsidiary (commonly called a QSub). The first part of this Article examines the tax consequences …
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 …
Corporate Natural Law: The Dominance Of Justice In A Codified World, Stuart R. Cohn
Corporate Natural Law: The Dominance Of Justice In A Codified World, Stuart R. Cohn
Stuart R. Cohn
One tends to think of corporate law as quite formalistic, bound by corporate statutes, articles of incorporation, bylaws, and customary rules of commercial conduct. While many aspects of corporate law are indeed so rule-bound, the truth is that the major issues facing directors, officers and shareholders, ranging from fiduciary duties to minority rights, are generally determined by much more amorphous principles of equity. Hence the notion of “corporate natural law.”
Tender Offers And The Sale Of Control: An Analogue To Determine The Validity Of Target Management Defense Measures, Stuart R. Cohn
Tender Offers And The Sale Of Control: An Analogue To Determine The Validity Of Target Management Defense Measures, Stuart R. Cohn
Stuart R. Cohn
The hostile tender offer phenomenon has spawned wholesale defensive measures adopted by target company management. In recent years, confrontations like those of Occidental Petroleum-Mead Corporation and American Express-McGraw-Hill have resulted in target management causing the eventual withdrawal of the tender offer by employing a variety of defensive measures known colloquially as “scorched earth” tactics. The “urge to merge” among major corporations will continue to produce unsolicited, nonnegotiated tender offers at varying scales of size. Consequently, strategies and techniques have been created at a pace faster than the process of litigation, causing a discernible lag between the ingenuity of corporate management …
Stock Appreciation Rights And The Sec: A Case Of Questionable Rulemaking, Stuart R. Cohn
Stock Appreciation Rights And The Sec: A Case Of Questionable Rulemaking, Stuart R. Cohn
Stuart R. Cohn
A stock appreciation rights (SARs) program is a form of deferred incentive compensation. Grantees are awarded SAR-units representing an equal number of the grantor’s equity shares currently being traded in public markets. SARs provide grantees the benefit of stock ownership without equity interest, investment, or risk of loss. Stock appreciation rights programs offer various advantages over other forms of executive compensation and have grown rapidly in number. These advantages include the availability of benefits without the requirement of monetary payments, the utilization of SARs as an interest-free form of financing the purchase of stock under tandem stock option programs, the …
Demise Of The Director's Duty Of Care: Judicial Avoidance Of Standards And Sanctions Through The Business Judgment Rule, Stuart R. Cohn
Demise Of The Director's Duty Of Care: Judicial Avoidance Of Standards And Sanctions Through The Business Judgment Rule, Stuart R. Cohn
Stuart R. Cohn
Courts love the so-called business judgment rule. It dispenses quickly and easily with derivative actions against corporate directors and officers, and other challenges to corporate conduct. Unfortunately, the business judgment rule has come to mask its underlying premise, i.e. that there must have been a business judgment made. This article examines the dominance of the business judgment rule over the underlying requirement of the duty of care and suggests reform measures that will bring the duty of care back to its appropriate role in determining the merits of management decision-making processes.
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 …
The Outer Limits Of Realization: Weiss V. Stearn And Corporate Dilution, Jeffrey L. Kwall, Katherine K. Wilbur
The Outer Limits Of Realization: Weiss V. Stearn And Corporate Dilution, Jeffrey L. Kwall, Katherine K. Wilbur
Jeffrey L. Kwall
The United States Supreme Court's 1924 Weiss v. Stearn decision involved a classic case of corporate dilution. In that case, a corporation ("Oldco') transferred its business to a new corporation ("Newco ') in a transaction in which the Oldco shareholders surrendered all their stock for 50 percent of the stock of Newco (and cash). The transaction diluted the proprietary interest of the Oldco shareholders from 100 percent to 50 percent. Because the Oldco shareholders surrendered control of the enterprise, the 50 percent interest they received in Newco was fundamentally different from the 100 percent interest they had owned in Oldco. …