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Articles 1 - 30 of 49
Full-Text Articles in Law
Leaving Law Firms With Client Fees: Florida's Path, Donald J. Weidner
Leaving Law Firms With Client Fees: Florida's Path, Donald J. Weidner
Scholarly Publications
No abstract provided.
Three Problems (And Two Solutions) In The Law Of Partnership Formation, Shawn J. Bayern
Three Problems (And Two Solutions) In The Law Of Partnership Formation, Shawn J. Bayern
Scholarly Publications
This Article considers several foundational questions concerning the formation of general partnerships, a topic that has received little modern attention and that is governed largely by classical axioms rather than adaptive modern considerations. Its three main topics concern (1) the timing of partnership formation, (2) the aggregation of multiple distinct questions under the single heading of “partnership formation,” and (3) the rarely challenged proposition that general partners ought to be liable for partnership obligations, a doctrine that is surprisingly at odds with the rest of modern business-entity law.
Shareholder Political Primacy, Jay B. Kesten
Shareholder Political Primacy, Jay B. Kesten
Scholarly Publications
Corporate political activity raises an important and diffcult question of corporate law: who decides when the corporation should speak and what it should say? In several cases, the Supreme Court has provided a clear answer: shareholders, acting through the procedures of corporate democracy. While this holding has attracted substantial academic and public criticism, there has been no sustained evaluation (beyond identifying the potential agency costs of corporate political activity) of the possibility that the Supreme Court's appeal to the fraught concept of "corporate democracy," though woefully under-theorized, might be the best allocation of power in the limited context of corporate …
The Fiduciary Gap, Kelli A. Alces
Capital Accounts In Llcs And In Partnerships: Powerful Default Rules And Potential Tax Significance, Donald J. Weidner
Capital Accounts In Llcs And In Partnerships: Powerful Default Rules And Potential Tax Significance, Donald J. Weidner
Scholarly Publications
Balance sheets for limited liability companies and for partnerships differ from corporate balance sheets in one important respect. Accounting for these alternative forms traditionally includes a separate equity account, or “capital account,” for each owner. Accounting practice and caselaw suggest that, at least as a default rule or norm, these accounts guide distributions on liquidation or buyout, and, if negative, may also reflect debts to the firm. Indeed, the statutory default rule of partnership law in most states requires that individual capital accounts be maintained and given economic significance on liquidation or buyout. Although the statutory law of LLCs does …
Balance And Team Production, Kelli A. Alces
Balance And Team Production, Kelli A. Alces
Scholarly Publications
No abstract provided.
Political Uncertainty And The Market For Ipos, Jay B. Kesten, Murat C. Mungan
Political Uncertainty And The Market For Ipos, Jay B. Kesten, Murat C. Mungan
Scholarly Publications
No abstract provided.
Adjudicating Corporate Auctions, Jay B. Kesten
Adjudicating Corporate Auctions, Jay B. Kesten
Scholarly Publications
In light of recent developments in auction theory, this Article re-examines Delaware corporate law governing directors' actions when structuring the sale of a corporation. A foundational doctrine of Delaware law is that when the board of directors resolves to sell a corporation, it must obtain the highest price reasonably available. Auction theory posits that, in certain circumstances germane to corporate takeovers, revenues can be maximized through the use of ex ante precommitments to the rules of the auction. Delaware law, however, does not fully endorse directors' ability to make such precommitments, primarily out of the concern that the board will …
Of Bitcoins, Independently Wealthy Software, And The Zero-Member Llc, Shawn J. Bayern
Of Bitcoins, Independently Wealthy Software, And The Zero-Member Llc, Shawn J. Bayern
Scholarly Publications
An innovative software technology known as Bitcoin makes it easier for software to operate with some degree of financial autonomy. In a meaningful sense, it is now possible for software to conduct business on its own account, without using the traditional financial system as an intermediary and without a financial existence tied to an existing natural or legal person. This Essay explores this possibility and suggests that legally autonomous entities, such as a limited liability company (LLC) with no members, are a useful legal structure for factually autonomous systems.
Larry Ribstein's Fiduciary Duties, Kelli A. Alces
Larry Ribstein's Fiduciary Duties, Kelli A. Alces
Scholarly Publications
Larry Ribstein, throughout his remarkable scholarly career, developed a theory formed around his analysis that the end of fiduciary obligation is a near possibility. Understanding fiduciary obligations as a carefully defined term may indicate, however, that this fiduciary obligation can be a useful part of a wider selection of relationships than Ribstein allowed. This Article both considers Ribstein’s theory of fiduciary duty, and ultimately turns that same theory on its head by advocating the use of a narrow duty in a variety of contexts as opposed to a broad duty in a limited range of circumstances
Legal Diversification, Kelli A. Alces
Legal Diversification, Kelli A. Alces
Scholarly Publications
The greatest protection investors have from the risks associated with capital investment is diversification. This Essay introduces a new dimension of diversification for investors: legal diversification. Legal diversification of investment means building a portfolio of securities that are governed by a variety of legal rules. Legal diversification protects investors from the risk that a particular method of minimizing agency costs will prove ineffective and allows investors to own securities in a variety of firms, with each security governed by the most efficient set of legal rules given the circumstances of the investment. Diversification of investment by legal rules is possible …
Financial System Engineering, Manuel A. Utset
Financial System Engineering, Manuel A. Utset
Scholarly Publications
No abstract provided.
Towards A Moral Agency Theory Of The Shareholder Bylaw Power, Jay B. Kesten
Towards A Moral Agency Theory Of The Shareholder Bylaw Power, Jay B. Kesten
Scholarly Publications
Corporate bylaws are the new leading edge of a decades-long struggle between shareholders and managers over the allocation of decision-making authority in public companies. Bylaws are the only method by which shareholders can unilaterally restrict the powers and discretion of the board. Yet the scope of this statutory authority remains notoriously uncertain. Corporate law scholars generally agree that there is a limited domain in which shareholders can restrict managerial authority, but disagree on the appropriate boundary. The Delaware Supreme Court recently confronted this issue for the first time in CA, Inc. v. AFSCME Employees Pension Plan, but that decision …
Fraudulent Corporate Signals: Conduct As Securities Fraud, Manuel A. Utset
Fraudulent Corporate Signals: Conduct As Securities Fraud, Manuel A. Utset
Scholarly Publications
Paying a dividend, repurchasing shares, underpricing an initial public offering, pledging collateral, and borrowing using short-term, instead of long-term debt, are all forms of corporate communications. They are “corporate signals” that tell investors certain things about a company’s operations and current financial position, and about the managers’ confidence in its future performance. This Article provides the first comprehensive analysis of the relationship between corporate signals and securities fraud. The incentive to communicate using corporate signals has increased in recent years, a phenomenon that, I argue, is due to the grow-ing complexity of public corporations, and, importantly, to a number of …
The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Kelli A. Alces, Brian D. Galle
The False Promise Of Risk-Reducing Incentive Pay: Evidence From Executive Pensions And Deferred Compensation, Kelli A. Alces, Brian D. Galle
Scholarly Publications
No abstract provided.
Strengthening Investment In Public Corporations Through The Uncorporation, Kelli A. Alces
Strengthening Investment In Public Corporations Through The Uncorporation, Kelli A. Alces
Scholarly Publications
No abstract provided.
Partners Without Partners: The Legal Status Of Single Person Partnerships, Donald J. Weidner, Robert J. Hillman
Partners Without Partners: The Legal Status Of Single Person Partnerships, Donald J. Weidner, Robert J. Hillman
Scholarly Publications
Is it possible to have a partnership consisting of one person, a partner without a partner? The question will arise when all but one of the members leaves a partnership. The Revised Uniform Partnership Act attempts to give greater stability to partnerships by narrowing the circumstances under which dissolutions occur, but it also fails to address the fundamental and important question of whether a partnership may be continued by a sole surviving partner.
In this Article, we explore the issues raised by a single person partnership. In particular, we address the central issue of whether the departure of the penultimate …
Beyond The Board Of Directors, Kelli A. Alces
Beyond The Board Of Directors, Kelli A. Alces
Scholarly Publications
No abstract provided.
The Equity Trustee, Kelli A. Alces
The Equity Trustee, Kelli A. Alces
Scholarly Publications
As we reel from the effects of a recent financial disaster, it is apparent that there is a significant gap in corporate governance and accountability for management. One reason we have experienced this financial cataclysm is the inability of shareholders to do the "shareholderj ob. " Shareholders, as the putative owners of corporations, hold a venerated place in corporate governance. They are responsible for electing directors and monitoring management as well as valuing companies through trades in a vigorous market. The shareholder collective action problem and resulting rational apathy have kept shareholders from effectively fulfilling their role in corporate governance. …
Revisiting Berle And Rethinking The Corporate Structure, Kelli A. Alces
Revisiting Berle And Rethinking The Corporate Structure, Kelli A. Alces
Scholarly Publications
No abstract provided.
Managerial Entrenchment And Shareholder Wealth Revisited: Theory And Evidence From A Recessionary Market, Jay B. Kesten
Managerial Entrenchment And Shareholder Wealth Revisited: Theory And Evidence From A Recessionary Market, Jay B. Kesten
Scholarly Publications
Does managerial entrenchment create or destroy shareholder value? This Article presents both theory and evidence that the answer to this question is not monolithic, but rather depends on factors that vary greatly with the macroeconomic climate, such as firm profitability, takeover frequency, and valuation of takeover premiums. The mainstream view, both of academics and market participants, is that entrenchment reduces accountability to shareholders and amplifies agency costs, thus decreasing shareholder wealth. Two influential studies (Bebchuk, Cohen & Ferrell (2009) and Gompers, Ishii & Metrick (2003)) present empirical evidence consistent with this conclusion, finding statistically significant negative correlations between entrenchment and …
Debunking The Corporate Fiduciary Myth, Kelli A. Alces
Debunking The Corporate Fiduciary Myth, Kelli A. Alces
Scholarly Publications
No abstract provided.
Obedience As The Foundation Of Fiduciary Duty, Rob Atkinson
Obedience As The Foundation Of Fiduciary Duty, Rob Atkinson
Scholarly Publications
No abstract provided.
Corporations And The Market For Law, Erin O'Hara O'Connor, Larry E. Ribstein
Corporations And The Market For Law, Erin O'Hara O'Connor, Larry E. Ribstein
Scholarly Publications
The state competition for corporate law has long been studied as a distinct phenomenon. Under the traditional view, corporations are subject to a unique choice-of-law rule, the “internal affairs doctrine” (IAD). This rule is explained as a historical accident, or by the special logistics of the corporate contract. The resulting market for corporate law appears to have special characteristics, particularly including the dominance of the single state of Delaware. This article challenges the traditional view. It shows that the corporate law market is best understood as a special application of the general market for law. Parties to many types of …
Strategic Governance, Kelli A. Alces
Strategic Governance, Kelli A. Alces
Scholarly Publications
Creditors exercise significant power over financially distressed corporations, thereby pushing corporate managers further into the realm of unprofitable risk aversion. The heavy hand of creditor power and the threats creditors are able to make to managers’ professional stability and success misalign senior officers’ incentives by undermining their freedom to make wealth-maximizing decisions on behalf of the corporation. The importance of independent managerial decision making is paramount in the law of corporate governance and that independence has been inefficiently undermined by the exertion of oppressive creditor control. This Article resolves the problem by creating a mechanism to balance shareholder and creditor …
Enforcing Corporate Fiduciary Duties In Bankruptcy, Kelli A. Alces
Enforcing Corporate Fiduciary Duties In Bankruptcy, Kelli A. Alces
Scholarly Publications
No abstract provided.
Moving Toward A Federal Law Of Corporate Governance In Bankruptcy, Kelli A. Alces
Moving Toward A Federal Law Of Corporate Governance In Bankruptcy, Kelli A. Alces
Scholarly Publications
No abstract provided.
Directors' Duties In Failing Firms, Kelli A. Alces, Larry E. Ribstein
Directors' Duties In Failing Firms, Kelli A. Alces, Larry E. Ribstein
Scholarly Publications
Despite many cases with seemingly contrary dicta, corporate directors of failing firms do not have special duties to creditors. This follows from the nature of fiduciary duties and the business judgment rule. Under the business judgment rule, the directors have broad discretion to decide what to do and in whose interests to act. There is some authority for a limited creditor right to sue on behalf of the corporation to enforce this duty. However, any such right does not make the duty one owed to creditors. The creditors individually may sue the corporation for breach of specific contractual, tort, and …
Reciprocal Fairness, Strategic Behavior & Venture Survival: A Theory Of Venture Capital-Financed Firms, Manuel A. Utset
Reciprocal Fairness, Strategic Behavior & Venture Survival: A Theory Of Venture Capital-Financed Firms, Manuel A. Utset
Scholarly Publications
No abstract provided.
Pitfalls In Partnership Law Reform: Some United States Experience, Donald J. Weidner
Pitfalls In Partnership Law Reform: Some United States Experience, Donald J. Weidner
Scholarly Publications
No abstract provided.