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Articles 1 - 16 of 16
Full-Text Articles in Law
Administrative-Law-Like Obligations On Private[Ized] Entities, Jack M. Beermann
Administrative-Law-Like Obligations On Private[Ized] Entities, Jack M. Beermann
Faculty Scholarship
Privatization is often promoted as a cure for many of the problems of government. In this Article, Professor Beermann argues that the effect of privatization is likely to be muted by the fact that several related phenomena have, in recent years, reduced the differences between government and the private sector, especially when privatization is involved. First, private entities are often compelled to make public or provide to government a great deal of information about themselves, much as the Freedom of Information Act and related statutes require transparency in government. Second, discovery in litigation subjects a great deal of private information …
"Apparent Servants" And Making Appearances Matter: A Critique Of Bagot V. Airport & Airline Taxi Cab Corporation, Daniel S. Kleinberger, Peter B. Knapp
"Apparent Servants" And Making Appearances Matter: A Critique Of Bagot V. Airport & Airline Taxi Cab Corporation, Daniel S. Kleinberger, Peter B. Knapp
Faculty Scholarship
Minnesota law has long recognized the agency law principle of apparent authority. Minnesota law also provides that an agent is liable for the contractual obligations of an undisclosed or partially disclosed principal. Both of these well-recognized principles provided a basis for the plaintiff’s suit in Bagot, and both ought to provide a basis for similar suits in the future.
Form And Function In Business Organizations, Richard A. Booth Marbury Research Professor Of Law
Form And Function In Business Organizations, Richard A. Booth Marbury Research Professor Of Law
Faculty Scholarship
In this piece, I argue that the recent proliferation of forms of business organizations in addition to the traditional partnership and corporation may have arisen from the implicit recognition that various organizations may serve needs of business people in different types of businesses, and that traditional theory of the firm explanations are too narrowly focused on market failure explanations for firm formation. I identify at least five different factors that may motivate people to form a business organization and discuss how these different factors may militate in favor of one business form rather than another. I conclude that the collections …
Doing Well While Doing Good: Reassessing The Scope Of Directors' Fiduciary Obligations In For-Profit Corporations With Non-Shareholder Beneficiaries, Lisa M. Fairfax
Doing Well While Doing Good: Reassessing The Scope Of Directors' Fiduciary Obligations In For-Profit Corporations With Non-Shareholder Beneficiaries, Lisa M. Fairfax
Faculty Scholarship
This article explores corporate fiduciary duties in the context of for-profit companies that operate in traditionally non-profit spheres. The rise in “privatization”—a conversion from certain businesses being operated by nonprofit and government entities to operation by for-profit companies—has sparked considerable opposition, particularly when it occurs within industries that deliver some societal good such as health care or education. Opponents claim that for-profit companies cannot pay heed to their social or charitable commitments because they must focus on generating profits. In a related debate, many corporate scholars disagree about the proper aim of the corporation—with some insisting that it should serve …
The Sarbanes-Oxley Act As Confirmation Of Recent Trends In Director And Officer Fiduciary Obligations, Lisa M. Fairfax
The Sarbanes-Oxley Act As Confirmation Of Recent Trends In Director And Officer Fiduciary Obligations, Lisa M. Fairfax
Faculty Scholarship
This Article argues that, instead of dramatically altering the responsibilities of corporate officers and directors, Sarbanes-Oxley confirms at least some case law and other recent articulations of management’s fiduciary duty. At a minimum, recent allegations regarding corporate misconduct may suggest some degree of confusion on the pat of corporate officers and directors about the manner in which they should comply with their fiduciary duty. By requiring more exacting standards of conduct from these corporate agents, Sarbanes-Oxley may not only clear up that confusion, but also may represent a natural extension of recent pronouncements by Delaware courts, the SEC and other …
The Evolution Of Corporate Law: A Cross- Country Comparison, Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp, Mark D. West
The Evolution Of Corporate Law: A Cross- Country Comparison, Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp, Mark D. West
Faculty Scholarship
The importance of law and legal institutions for economic development is widely acknowledged today. The invention of credit mechanisms to support long-distance trade has been hailed as one of the preconditions for the development of capitalism in Europe. The corporate form is regarded as another milestone for industrialization, the creation of viable market economies, and ultimately economic prosperity. Many former socialist countries quickly enacted new corporate codes or revived their pre-World War Two ("WWII") legislation. The failure of major privatization efforts to enhance enterprise efficiency is attributed to weaknesses in corporate governance, of which the corporate law is a crucial …
Endowment Effects Within Corporate Agency Relationships, Jennifer H. Arlen, Matthew L. Spitzer, Eric L. Talley
Endowment Effects Within Corporate Agency Relationships, Jennifer H. Arlen, Matthew L. Spitzer, Eric L. Talley
Faculty Scholarship
Behavioral economics is an increasingly prominent field within corporate law scholarship. A particularly noteworthy behavioral bias is the "endowment effect" – the observed differential between an individual's willingness to pay to obtain an entitlement and her willingness to accept to part with one. Should endowment effects pervade corporate contexts, they would significantly complicate much common wisdom within business law, such as the presumed optimality of ex ante agreements. Existing research, however, does not adequately address the extent to which people manifest endowment effects within agency relationships. This article presents an experimental test for endowment effects for subjects situated in an …
On The Demise Of Shareholder Primacy ( Or, Murder On The James Trains Express), Eric Talley
On The Demise Of Shareholder Primacy ( Or, Murder On The James Trains Express), Eric Talley
Faculty Scholarship
The hypothetical introduced by Vice Chancellor Leo Strine's Essay exposes an important arena of corporate governance where adherence to the traditional norm of "shareholder primacy" is particularly troublesome. In fact, it is hard to find an analogous domain of corporate governance law that is as jarringly discontinuous as that found in the factual circumstances suggested by Strine's hypothetical. Explicitly, the legal scrutiny accorded to managers who resist a hostile acquisition depends critically on whether a court invokes the Revlon doctrine or the Unocal doctrine as the appropriate governing standard. Under the former (and its progeny), shareholder primacy arguments carry …
Deal Protection Provisions In The Last Period Of Play , Sean J. Griffith
Deal Protection Provisions In The Last Period Of Play , Sean J. Griffith
Faculty Scholarship
The ability to protect mergers is important to both targets and acquirors. A series of recent Chancery Court decisions, however, challenges the validity of deal protection provisions in merger agreements and threatens the stability of Delaware's established change of control paradigm. This article argues that last period concerns animate the Chancery Court's decisions and finds, in the last period problem, a theoretical principle capable of harmonizing these decisions with existing jurisprudence and providing a coherent approach to the practical problems raised by deal protection provisions.
A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg
A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg
Faculty Scholarship
In international commodity transactions, intermediary certifiers of quantity and quality play a crucial role. Sometimes they err, and when they do, the aggrieved party can pursue remedies against the counterparty or against the intermediary, either in contract or tort. The remedy against the intermediary has depended, at least in part, on whether the plaintiff was in privity. Even absent privity, the aggrieved party could possibly recover in tort (or perhaps as a third-party beneficiary). So held Cardozo in the leading New York case Glanzer v. Shepard. Section I of this paper reviews the Glanzer litigation, with special emphasis on how …
Lipton And Rowe's Apologia For Delaware: A Short Reply, Ronald J. Gilson
Lipton And Rowe's Apologia For Delaware: A Short Reply, Ronald J. Gilson
Faculty Scholarship
Three themes animate Martin Lipton and Paul Rowe's thoughtful response to my critical evaluation of Unocal's fifteen-year history. First, they maintain that affording shareholders a primary role in the governance of takeovers depends on a commitment to the stock market's informational efficiency. Second, they claim that allowing shareholders to amend or repeal a poison pill ignores empirical evidence that the existence of a poison pill is associated with higher takeover premiums. Third, they assert that the Delaware General Corporation Law (DGCL) reflects an implicit mega-principle that assigns control over takeovers to managers. This short reply corrects Lipton and Rowe's …
Playing Favorites With Shareholders, Stephen J. Choi, Eric Talley
Playing Favorites With Shareholders, Stephen J. Choi, Eric Talley
Faculty Scholarship
One of the most vexing historical debates in corporate law concerns whether regulations or markets are better equipped to address managerial agency costs within public corporations. Although corporate law scholars have traditionally favored immutable legal imperatives as an elixir for misaligned incentives,an increasing number of commentators place greater faith in market mechanisms to accomplish the same task. While many such mechanisms operate simultaneously (including markets for output, labor, and capital), perhaps none has received more attention than the oft-celebrated "market for corporate control" as a means for achieving deterrence. By providing a constant and credible risk of hostile acquisitions, the …
Persuasion And Resistance: The Use Of Psychology By Anglo-American Corporate Governance Advocate In France, James A. Fanto
Persuasion And Resistance: The Use Of Psychology By Anglo-American Corporate Governance Advocate In France, James A. Fanto
Faculty Scholarship
No abstract provided.
Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.
Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.
Faculty Scholarship
What do we know after Enron's implosion that we did not know before it? The conventional wisdom is that the Enron debacle reveals basic weaknesses in our contemporary system of corporate governance. Perhaps, this is so, but where is the weakness located? Under what circumstances will critical systems fail? Major debacles of historical dimensions – and Enron is surely that – tend to produce an excess of explanations. In Enron's case, the firm's strange failure is becoming a virtual Rorschach test in which each commentator can see evidence confirming what he or she already believed.
What Enron Means For The Management And Control Of The Modern Business Corporation: Some Initial Reflections, Jeffrey N. Gordon
What Enron Means For The Management And Control Of The Modern Business Corporation: Some Initial Reflections, Jeffrey N. Gordon
Faculty Scholarship
The Enron case plays on many different dimensions, but its prominence is not merely part of popular culture's obsession with scandal du jour. Rather, the Enron situation challenges some of the core beliefs and practices that have underpinned the academic analysis of corporate law and governance, including mergers and acquisitions, since the 1980s. These amount to an interlocking set of institutions that constitute "shareholder capitalism," American-style, 2001, that we have been aggressively promoting throughout the world. We have come to rely on a particular set of assumptions about the connection between stock market prices and underlying economic realities; the reliability …
Regulation And Investors' Trust In The Securities Market, Tamar Frankel
Regulation And Investors' Trust In The Securities Market, Tamar Frankel
Faculty Scholarship
The subject of investor confidence in the securities markets has received wide attention recently as details of fraud and avarice continue to emerge. Investors' trust in the securities markets is important for the reasons discussed in Professor Stout's marvelous paper.1 This Comment focuses on the relationship between investors' trust and government regulation of the markets. By regulation I mean congressional legislation and actions by federal agencies. I exclude the courts mainly because their lawmaking is not primarily policy-based, and my aim is to sound the alarm for legislative and regulatory policy-directed actions. Many an economist and academic have argued …