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Articles 31 - 60 of 82
Full-Text Articles in Law
Re-Evaluating Declaratory Judgment Jurisdiction In Intellectual Property Disputes, Lorelei Ritchie De Larena
Re-Evaluating Declaratory Judgment Jurisdiction In Intellectual Property Disputes, Lorelei Ritchie De Larena
Lorelei Ritchie de Larena
The Declaratory Judgment Act of 1934 was quickly tagged by the U.S. Supreme Court as a simple procedural measure. Whether simple or procedural, the addition of the declaratory judgment option has dramatically increased the rights of would-be defendants. This is of special interest in patent law, where without the ability to initiate legal action, an alleged infringer would typically have no recourse but to either drop a lucrative business and lose a massive investment, or to languish in legal limbo while potentially accruing liability for treble damages. The option of a mirror-image lawsuit removes the patentee’s ability to unilaterally decide …
Developing Governance And Regulation For Emerging Capital And Securities Markets, Ali Adnan Ibrahim
Developing Governance And Regulation For Emerging Capital And Securities Markets, Ali Adnan Ibrahim
Ali A Ibrahim
This paper discusses various legal and regulatory issues for developing strong capital and securities markets in the transition economies. Toward this end, the paper analyses the available literature, and emphasizes that: (i) the development of corporate governance should be gradual and must take into consideration the customary laws that impact on the ownership structures and related preferences for doing business in the emerging markets; and (ii) the foreign investment policies should be consistent with the development of corporate governance and vice versa.
The Evolution And Endpoint Of Responsibility: The Fcpa, Sox, Leftist Leaders, Gratuitous Promises, And A Novel Csr Code, Aaron N Einhorn
The Evolution And Endpoint Of Responsibility: The Fcpa, Sox, Leftist Leaders, Gratuitous Promises, And A Novel Csr Code, Aaron N Einhorn
Aaron N Einhorn
Over the past thirty years, multinational corporations have emerged as engines of global development and have enjoyed increased political and economic power. In order to control this power, states and intergovernmental organizations have placed greater and greater responsibilities upon corporations. Passage of the Foreign Corrupt Practices Act in 1977, for example, required corporations to establish internal controls and imposed vicarious liability for third parties acts of bribery. Amendments to the Foreign Corrupt Practices Act in 1998 expanded corporate responsibility under the Act even further. Subsequently, in 2002, the United States passed the Sarbanes-Oxley Act, restructuring the very systems of governance …
The Case For For-Profit Charities, Anup Malani, Eric Posner
The Case For For-Profit Charities, Anup Malani, Eric Posner
Anup Malani
Nonprofit firms may earn profits, but they may not distribute them to any affiliated persons. If a nonprofit firm has a “charitable” purpose under § 501(c)(3) of the tax code, the firm receives numerous tax advantages. For example, donors may deduct their donations to the firm from their taxable personal income. For-profit firms may distribute profits to affiliated persons, but receives no tax advantages for engaging in “charitable” activities. We argue that the law should not link tax benefits to corporate form in this way. There may be good arguments for recognizing the nonprofit form and good arguments for providing …
Unofficial Official Comments, Nigel Stark
Unofficial Official Comments, Nigel Stark
Nigel Stark
My Note examines Justice Antonin Scalia’s “plain meaning” theory and asks whether, assuming that theory is correct, whether official comments should be used to interpret a statute. Specifically, I examine the use of the UCC’s Official Comments and its various state variations. I conclude that, under Justice Scalia’s theory, the use of official comments is to interpret the statute is improper and should be avoided.
The Fetishization Of Independence, Usha Rodrigues
The Fetishization Of Independence, Usha Rodrigues
Usha Rodrigues
According to conventional wisdom, a supermajority independent board of directors is the ideal corporate governance structure. Debate nevertheless continues: empirical evidence suggests that independent boards do not improve firm performance. Independence proponents respond that past studies reflect a flawed definition of independence. Remarkably, neither side in the independence debate has looked to Delaware, the preeminent state source for corporate law. Comparing Delaware’s notions of independence with those of Sarbanes-Oxley and its attendant reforms reveals two fundamentally different conceptions of independence. Sarbanes-Oxley equates independence with outsider status: an independent director is one who lacks financial ties to the corporation and is …
Dr. Jones And The Raiders Of Lost Capital: Hedge Fund Regulation, Part Ii, John W. Verret
Dr. Jones And The Raiders Of Lost Capital: Hedge Fund Regulation, Part Ii, John W. Verret
John W Verret
Hedge funds can sometimes achieve remarkable returns. The market fees exceed that of other asset classes, leading some fund managers to engage in illicit behavior, including fraud, that violates their duty to their investors and tempts institutional investors to violate their fiduciary duty to their principals. I will examine the hedge fund registration requirement struck down during the summer of 2006, as well as the tools used by other regulators to oversee institutional investors. This study relies on a survey of literature on financial regulation, commentary on the hedge fund registration rule, models of self-regulation, and examples in other areas …
New Governance, Compliance, And Principles-Based Securities Regulation, Cristie L. Ford
New Governance, Compliance, And Principles-Based Securities Regulation, Cristie L. Ford
Cristie L. Ford
The UK securities regulator, the Financial Services Authority, claims that its "principles-based" approach to securities regulation is simply "better" than what it characterizes as the prescriptive, rules-based American approach. The striking shift in financial sector business from New York to London over the last two years has brought the question of the wisdom of principles-based regulation into sharp relief. In fact, an FSA-style regulatory approach may also be taking hold in Canada, through the agency of the province of British Columbia. This paper examines BC's innovative proposals for a principles-based securities regime through the lens of New Governance theory. I …
Corporate Governance, Director Liability, And Good Faith, Elizabeth Nowicki
Corporate Governance, Director Liability, And Good Faith, Elizabeth Nowicki
Elizabeth Nowicki
Corporate directors are obligated to act “in good faith,” and directors face personal monetary liability to their shareholders for acts “not in good faith.” Yet no modern court has imposed liability accordingly. Every time the issue of a director’s good faith comes up in court, the court forces the complaining shareholder to prove that her directors acted affirmatively in bad faith as opposed to merely in the absence of good faith. The judiciary completely misses the point that acts lacking good faith are not always the same as acts affirmatively taken in bad faith. A director can act in the …
Arbitrating Human Rights, Roger P. Alford
Arbitrating Human Rights, Roger P. Alford
Roger P. Alford
Currently domestic human rights litigation against corporations appears to be a proxy fight in which the accomplice is pursued while the principal evades punishment. Typically the principal malfeasor—the sovereign—is immune from suit because of foreign sovereign immunity. But corporations can be found liable for aiding and abetting those violations. This article suggests a solution to this problem, drawing on principles from contract law and arbitration. If a corporation is found liable for aiding and abetting sovereign abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not …
The Limits Of Hedge Fund Activism, Robert Thompson
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
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 …
Pandora's Ballot Box, Or A Proxy With Moxie? The Majority Voting Amendment To Delaware Corporate Law, John Verret
Pandora's Ballot Box, Or A Proxy With Moxie? The Majority Voting Amendment To Delaware Corporate Law, John Verret
ExpressO
The Delaware General Assembly has recently adopted an amendment to the Delaware General Corporation Law which provides that where shareholders have adopted a majority voting bylaw for corporate elections over the traditional plurality scheme, a corporation may not subsequently amend its bylaws to return to plurality voting without shareholder approval. I will compare this provision to other approaches and try to explain the reasons underlying its adoption. I will also briefly summarize the evolving shareholder empowerment debate and analyze the majority voting provision in the context of that discussion. I will describe some unique and unanticipated interactions between majority voting …
Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson
Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson
ExpressO
The Law and Finance account of the ubiquity of controlling shareholders in developing markets is based on conditions in the capital market: poor shareholder protection law prevents controlling shareholders from parting with control out of fear of exploitation by a new controlling shareholder who acquires a controlling position in the market. This explanation, however, does not address why we observe any minority shareholders in such markets, or why controlling shareholders in developing markets are most often family-based. This paper looks at the impact of “bad law” on shareholder distribution in a very different way. Developing countries typically provide not only …
Can Corporate Governance Reforms Increase Firms' Market Values: Evidence From India, Bernard S. Black, Vikramaditya Khanna
Can Corporate Governance Reforms Increase Firms' Market Values: Evidence From India, Bernard S. Black, Vikramaditya Khanna
Law & Economics Working Papers Archive: 2003-2009
A central problem in studying the valuation effects of corporate governance reforms is that most reforms affect all firms in a country. Thus, if share prices move when governance reforms are announced, the price changes may reflect the reforms, but could also reflect other new information. We address this identification issue by studying India’s adoption in 2000 of major governance reforms (Clause 49), a number of which resemble and predate Sarbanes Oxley. Clause 49 requires, among other things, audit committees, a minimum number of independent directors, and CEO/CFO certification of financial statements and internal controls. The reforms were sponsored by …
Developing Governance And Regulation For Emerging Capital And Securities Markets, Ali Adnan Ibrahim
Developing Governance And Regulation For Emerging Capital And Securities Markets, Ali Adnan Ibrahim
Ali A Ibrahim
This paper discusses various legal and regulatory issues for developing strong capital and securities markets in the transition economies. Toward this end, the paper analyses the available literature, and emphasizes that: (i) the development of corporate governance should be gradual and must take into consideration the customary laws that impact on the ownership structures and related preferences for doing business in the emerging markets; and (ii) the foreign investment policies should be consistent with the development of corporate governance and vice versa.
Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson
Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson
Ronald J. Gilson
The Law and Finance account of the ubiquity of controlling shareholders in developing markets is based on conditions in the capital market: poor shareholder protection law prevents controlling shareholders from parting with control out of fear of exploitation by a new controlling shareholder who acquires a controlling position in the market. This explanation, however, does not address why we observe any minority shareholders in such markets, or why controlling shareholders in developing markets are most often family-based. This paper looks at the impact of “bad law” on shareholder distribution in a very different way. Developing countries typically provide not only …
The Sec Regulation Of Takeovers: Some Doubts From A Game Theory Perspective And A Proposal For Reform, Sharon Hannes, Omri Yadlin
The Sec Regulation Of Takeovers: Some Doubts From A Game Theory Perspective And A Proposal For Reform, Sharon Hannes, Omri Yadlin
Sharon Hannes
In theory, a hostile tender offer poses a threat to the target shareholders who, for strategic reasons, may tender their shares in response to an inferior bid. It has therefore been suggested that the decision to tender be made separately from the shareholder vote on the actual merits of the bid. While the regulator has never adopted this proposal, market forces in the poison pill era did generate a mechanism with a similar effect. To overcome a poison pill (a mechanism implemented by managers to thwart bids), the bidder must win the shareholders’ vote in a proxy contest that is …
To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz
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
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
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 Application Of Tax Treaties To Investment Funds, Niccolo Pallesi
The Application Of Tax Treaties To Investment Funds, Niccolo Pallesi
ExpressO
Among financial investors, investment funds are the ones that mostly have increased their importance in capital markets where the regulation on investment funds is still incipient. By using investment funds, individual investors can have the possibility to participate in various companies as well as in market places worldwide without the need of specific and elaborated knowledge of the same companies and markets. After an introductory chapter I start analyzing the definition and activity of an investment fund, attention is also paid to the UCITS regulation for European investment funds. In the next chapter I analyze how investment funds are taxed …
The Yukos Money Laundering Case: A Never-Ending Story, Dmitry Gololobov
The Yukos Money Laundering Case: A Never-Ending Story, Dmitry Gololobov
Michigan Journal of International Law
The Yukos case has unveiled the possible dangers of money laundering legislation in the hands of governments with transitional economies and weak democratic traditions. Even if the anti-money laundering laws of the country comply with international pronouncements to the letter, there are still a number of ways the laws could be used for the sole purpose of persecuting political opponents. In the Yukos case, the money laundering charges were interrelated with the charges of corporate tax evasion, which, taken separately, in Russia, represent a rather weak tool for suppressing the political opponents, but taken together they are perfect for the …
The Ideal Deal: How Local Governments Can Get More For Their Economic Development Dollar, Rachel Weber, David Santacroce
The Ideal Deal: How Local Governments Can Get More For Their Economic Development Dollar, Rachel Weber, David Santacroce
Books
This handbook is designed to provide local economic development practitioners with an important tool. It takes the reader step-by-step through the different elements of contracts that treat public incentive packages as a quid pro quo for public benefits. Each section discusses a different element of the ideal deal: valuation of public costs and benefits, performance standards, disclosure and oversight, and enforcement. In each section we provide detailed examples of model provisions used by local governments in their incentive legislation, ordinances, and contracts -- information that has not before been obtained or recorded in any systematic way. These examples are meant …
Efficient And Inefficient Debt Restructuring: A Comparative Analysis On Voting Rules In Workouts, Hyun Chul Lee
Efficient And Inefficient Debt Restructuring: A Comparative Analysis On Voting Rules In Workouts, Hyun Chul Lee
Hyun-Chul Lee
Two jurisdictions, Korea and America, have contrasting legal rules governing voting in workouts: Voting Mandating Rule and Voting Prohibition Rule. Voting in a bond workout has long been prohibited in the Trust Indenture Act of the United States. In stark contrast, Korea enacted a unique statute that mandated a voting scheme in workout in an effort to resolve corporate insolvencies crisis and incompetent bankruptcy institutions. Voting facilitates the completion of workouts, but it gives majority creditors an opportunity to disproportionately benefit from workouts. I explore the contrariness of the two seemingly unrelated statutes, and bring their respective implications for efficiency …
Legal Deterrence: The Foundation Of Corporate Governance—Evidence From China, Zhong Zhang Dr
Legal Deterrence: The Foundation Of Corporate Governance—Evidence From China, Zhong Zhang Dr
Zhong Zhang Dr
To evaluate the Chinese government’s recent market-orientated efforts to promote good corporate governance, this paper conducts a re-examination of the working mechanics for market competition and other market-based governance mechanisms to ensure good corporate governance. The finding is that the utility of market mechanisms may have been overstated. Not only are they not effective in disciplining serious one-off managerial misbehaviour which offers managers more gains than losses, even their limited value to discourage such misbehaviour as managerial shirking is also conditioned upon a successful curb on one-off misbehaviour. On the contrary, the importance of deterrence from legal liability may have …
How We Make Law In Delaware, And What To Expect From Us In The Future, Lawrence A. Hamermesh
How We Make Law In Delaware, And What To Expect From Us In The Future, Lawrence A. Hamermesh
Lawrence A. Hamermesh
No abstract provided.
Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors In Troubled Companies, Royce De R. Barondes, Lisa Fairfax, Lawrence A. Hamermesh, Robert Lawless, Jonathan C. Lipson, Russell C. Silberglied
Twilight In The Zone Of Insolvency: Fiduciary Duty And Creditors In Troubled Companies, Royce De R. Barondes, Lisa Fairfax, Lawrence A. Hamermesh, Robert Lawless, Jonathan C. Lipson, Russell C. Silberglied
Lawrence A. Hamermesh
No abstract provided.
To Disclose Or Not To Disclose. That Is The Question For The Corporate Fiduciary Who Is Also A Pension Plan Fiduciary Under Erisa: Resolving The Conflict Of Duty, Shelby D. Green
Elisabeth Haub School of Law Faculty Publications
This Article examines the seeming irreconcilable conflict faced by the pension plan fiduciary, who is a corporate insider, to disclose or not to disclose material, inside information to plan participants, who would use the information to divest investments in company stock, without disclosing the same information to persons on the other side of these trades. The Article begins with a general discussion of the regulation of trade in securities and the history of the insider trading laws under the Securities Exchange Act of 1934. Part III discusses the soundness of the prohibition against insider trading. Part IV explains the duties …
Dividend Policy Inside The Multinational Firm, Mihir A. Desai, C. Fritz Foley, James R. Hines Jr.
Dividend Policy Inside The Multinational Firm, Mihir A. Desai, C. Fritz Foley, James R. Hines Jr.
Articles
This paper examines the determinants of profit repatriation policies for US multinational firms. Dividend repatriations are surprisingly persistent and resemble dividend payments to external shareholders. Tax considerations influence dividend repatriations, but not decisively, as differentially-taxed entities feature similar policies and some firms incur avoidable tax penalties. Parent companies requiring cash to fund domestic investments, or to pay dividends to common shareholders, draw on the resources of their foreign affiliates through repatriations. Incompletely controlled affiliates are more likely than others to make regular dividend payments and to trigger avoidable tax costs through repatriations. The results indicate that traditional corporate finance concerns …