Law Commons^™

Cancellazione Delle Società Di Capitali E Responsabilità Di Soci E Liquidatori, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

"Because That's Where The Money Is": A Theory Of Corporate Legal Compliance, William Bradford

william bradford

Upon his capture in 1934, the legendary bank robber Willie Sutton was asked by FBI agents, Why do you rob banks, Willie? Sutton, who believed the question to be rhetorical, replied, dryly, Because that's where the money is. In other words, Sutton understood his interrogator to be inquiring as to why he robbed banks rather than, say, homes, or gas stations, or church offering plates. Had he understood the query as intended - i.e., what was it about Willie Sutton the impelled Willie Sutton to crime when many others, struggling to survive the Great Depression, were not? - Sutton could …

Investing In Distressed Italian Companies Under The Reformed Italian Bankruptcy Law - A Comparison With The Us Bankruptcy Code, Pierantonio Musso

Pierantonio Musso

This article presents a scheme to profitably invest in distressed Italian companies by taking advantage of the Italian Bankruptcy Law in comparison with the US Bankruptcy Code. The risks connected to the insolvency proceeding are analyzed under their economic effects and foreseen in their general appearance. Specific remedies to avoid or mitigate the potential risks are provided. Singular advantages, available only in the proposed investment scheme under the Italian Law, are described. As a result the investment produces a less risky and more profitable outcome than an investment in a non-distressed and non-Italian target company.

When Parallel Tracks Cross: Applying The New Insider Trading Regulations Under Dodd-Frank Derails, Gregory J. Melus

Gregory J Melus

Abstract: When Parallel Tracks Cross: Applying the New Insider Trading Regulations under Dodd-Frank Derails On March 11, 2011, the U.S. Securities and Exchange Commission (SEC) brought an administrative proceeding against former Goldman Sachs Director, Rajat Gupta for participating in the insider trading scheme of Raj Rajaratnam. The complaint was the first application of the SEC’s expanded authority under the Dodd-Frank Act to charge an unregistered entity for securities violations in an SEC enforcement hearing. This Comment argues that bringing an SEC administrative proceeding against Rajat Gupta would not succeed because the retroactive application of the Dodd-Frank law would fail the …

Fannie Mae And Freddie Mac; Legal Implications For A Successor Cooperative, Michael E. Murphy

Michael E Murphy

A financial cooperative of mortgage originators is capable of assuming the core securitization functions of Fannie Mae and Freddie Mac as part of a scheme to dismantle these institutions. Such a cooperative would offer advantages in maintaining adequate capitalization and in providing an effective governance structure. A federally chartered, Subchapter T cooperative appears preferable for this purpose.

Fannie Mae And Freddie Mac; Legal Implications For A Successor Cooperative, Michael E. Murphy

Michael E Murphy

A financial cooperative of mortgage originators is capable of assuming the core securitization functions of Fannie Mae and Freddie Mac as part of a scheme to dismantle these institutions. Such a cooperative would offer advantages in maintaining adequate capitalization and in providing an effective governance structure. A federally chartered, Subchapter T cooperative appears preferable for this purpose.

Fannie Mae And Freddie Mac: Legal Implications Of A Successor Cooperative, Michael E. Murphy

Michael E Murphy

A financial cooperative of mortgage originators is capable of assuming the core securitization functions of Fannie Mae and Freddie Mac as part of a scheme to dismantle these institutions. Such a cooperative would offer advantages in maintaining adequate capitalization and in providing an effective governance structure. A federally chartered, Subchapter T cooperative appears preferable for this purpose.

Rating The Regulation Of Rating Agencies: Credit Rating Agency Reform In The Aftermath Of The Global Financial Crisis, Nan S. Ellis

Nan S Ellis

In this article, we identify five issues related to performance of credit rating agencies and consider the Dodd-Frank Act in light of these five interrelated issues. Others have commented on credit rating agency performance and offered proposed solutions. Our article is unique, however, in that it offers a comprehensive examination of these interrelated issues. We recognize that any regulatory reform must consider all aspects of the issue rather than to deal with isolated, incremental reform. Moreover, we offer an interdisciplinary approach which considers the relevant finance literature as well as legal commentary.

Electronic Discovery: A Survey Of E-Discovery, Its Effect On Corporate Constitutional Rights And Why Corporations May Receive The Fifth Amendment Privilege Against Self-Incrimination During Parallel Civil And Criminal Litigation, Percy Arnell King

Percy Arnell King Esq.

Advancing technology has created more places to seek out relevant information than ever before which, has created a burden for corporations tasked with retaining this information to comply with applicable laws and the prospect of civil or criminal litigation. This article explores how the modern trend of storing information electronically and subsequent electronic discovery allowed in parallel civil and criminal trials is inherently unfair to corporations. Furthermore, corporations have been granted several rights derived from the Bill of Rights, and should also receive the Fifth Amendment privilege against self-incrimination.

Delaware’S Relevance In Chapter 22: Who Is “Courting Failure” Now?, Ruth S. Lee

Ruth S Lee

This study presents surprising new statistical evidence that contributes to the current “over-heated” academic debate about the Delaware courts’ role in Chapter 11 failure. In 2001, Professor LoPucki published an influential article suggesting that when large corporations file for bankruptcy under Chapter 11, they fail at a dramatically higher rate in Delaware courts than in other jurisdictions. He attributed this to corruption. His article enraged many academics and practitioners, and ignited many articles in the past two decades. This study presents startling evidence that while Chapter 11s filed in Delaware courts did have much higher failure rates from 1991-1996, after …

The Stakeholder Principle, Corporate Governance And Theory – Evidence From The Field And The Path Onward, P M Vasudev

Palladam M Vasudev

The article provides an overview of the development of the stakeholder idea, and presents the results from a survey of the American, British and Canadian corporations included in the Fortune 500 Global Corporations (2009) for their adoption of the stakeholder principle. The survey finds near-unanimous acceptance of the stakeholder vision. 97 percent of the US, UK, and Canadian companies included in the survey acknowledge the stakeholder principle in some form. The trend of adoption of the stakeholder model is unmistakable, and this has significant implications for corporate theory. The article also examines how the emerging ideas about stakeholders and the …

Analysis Of Organizational Ethics, Evan Slavitt

Evan Slavitt

Whether an organization is ethical or not has become an increasingly important question both in public and legislative discourse as well as in the application of tort and criminal law. Historical approaches to organizational ethics have either attempted to evade the problem or sought to use paradigms developed for individuals. This Article reviews the various models that have already been proposed and explains why those models are unsatisfactory, focusing particularly on the attempts to articulate an organizational substitute for individual intent. The article then proposes a new framework that differentiates the various aspects of organizations and clarifies how ethical questions …

Strategic Management And The Role Of Legal Norms In Creating Corporate Value, Nadelle Grossman

Nadelle Grossman

Delaware corporate law currently requires that directors oversee their firm’s systems to monitor risk so that they can limit their firm’s losses from such risks. Corporate law does not, however, require either directors or officers to oversee the interrelated process of managing that firm’s strategy for gains. Yet managing both risk and strategy are essential to a firm in creating value. In fact, as I argue in the paper, the current focus by business courts and academic commentators only on risk management oversight to prevent losses could actually undermine a firm’s management of its strategy for gains. I therefore propose …

What Shapes Controlling Party’S Behavior?: Factors Behind Private Benefits Of Control, Federico Pastre

Federico Pastre

Several legal and non-legal factors determine and shape controlling party’s behavior and its ability of extracting private benefits of control through opportunistic conducts that harm minority shareholders.

Initially, the paper briefly focuses on the concept of PBC and on the ways its magnitude can be assessed. Starting from the quality of the laws enacted and the level of enforcement granted to them in a given law environment (“law matter” thesis), to other law-related factors such as the level of competition, the labor in the firm, reputational constraints upon management, disclosure standards and the attitude of the judiciary, the paper analyzes …

Codifying Bankruptcy Law's Fastpass: New Value And The Absolute Priority Rule, David P. Hamm Jr

David P Hamm Jr

The notion behind the absolute priority rule is not novel to any of us. We all learned at a very young age that if someone is in front of you in line—they get served first. This basic notion of fairness affects our lives in several everyday contexts—including bankruptcy. The people in the “bankruptcy” line are the holders of interests in the debtor. If the interest held by party A is “senior” to that of party B, then party A is in front of party B in line. The absolute priority rule essentially provides that the party A must be paid …

Keep Your Friends Close But Your Auditors Closer: Corporations Risk Waiver When Independent Auditors Request Work Product, Daniel Reach

Daniel Reach

In the current transparency-driven regulatory environment, corporations’ efforts at compliance are rife with uncertainty. The work product doctrine is a core safeguard of a lawyer’s work, which may contain sensitive information that corporations would not want disclosed to opposing parties. Meanwhile, independent auditors serve in a perilous capacity as they provide necessary services to their corporate clients while risking potentially adverse exposure of the information these clients and their counsel disclose to them. The work product doctrine is a time-honored and rule-driven protection that guards the mental impressions and work efforts of lawyers from discovery by opposing parties. Public accounting …

Corporate Leadership And The Unfinished Diversity Movement, Evan M. Roberts Mr.

Evan M Roberts Mr.

This comment explores topics relating to diversity in the board room. It begins by covering the benefits a diverse board brings to firm, focusing on the business case rationales of saving firms money, strengthening core business concepts and corporate governance and increasing shareholder value. Next, the comment explores why, despite the apparent value a divers e board brings to a firm, corporations remain largely homogenized at the highest levels. Current legal, social and economic principles such as tournament theory and labor market externalities appear to shed light on what specific problems diversity advocates must contend with if they hope to …

How Shareholder Litigations Deter Directors And Officers. U.S. And Italy, A Comparative Analysis, Federico Pastre

Federico Pastre

This paper focuses on the issue of whether shareholder litigations brought in the U.S. - namely, derivative suits and securities class actions – and their equivalent in the Italian law system, achieve their principal regulatory goal of deterring corporate directors and officers from engaging in unlawful conduct, in addition to compensating shareholders and investors for the harm they suffered.

In the U.S., effective derivative suits and securities class actions, contingency fees, and the rule concerning legal expenses, create an entrepreneurial system in which directors and officers are ultimately deterred by the private enforcement of the law. Nevertheless, the presence of …

Strategic Management And The Role Of Legal Norms In Creating Corporate Value, Nadelle Grossman

Nadelle Grossman

Delaware corporate law currently requires that directors oversee their firm’s systems to monitor risk so that they can limit their firm’s losses from such risks. Corporate law does not, however, require either directors or officers to oversee the interrelated process of managing that firm’s strategy for gains. Yet managing both risk and strategy are essential to a firm in creating value. In fact, as I argue in the paper, the current focus by business courts and academic commentators only on risk management oversight to prevent losses could actually undermine a firm’s management of its strategy for gains. I therefore propose …

Held Hostage: How The Banking Sector Has Distorted Financial Regulation And Destroyed Technological Progress, Aaron Greenspan

Aaron Greenspan

In 2008, a global financial crisis second only to the Great Depression shed light on the utterly dysfunctional system of financial regulation governing the United States. A cacophony of laws and agencies, charged with regulating retail and investment banks, ultimately failed to prevent (and ultimately accelerated) an epic economic disaster that required enormous taxpayer bailouts of private enterprise, sunk two investment banks (Lehman Brothers and Bear Stearns), imploded an enormous insurance provider (A.I.G.), leveled the American auto industry (General Motors and Chrysler), and destroyed the student loan and mortgage industries, among many, many others. Drafted quickly amidst the wreckage, the …

“The End Of The Beginning?” A Comprehensive Look At The U.N.’S Business And Human Rights Agenda From A Bystander Perspective, Jena Martin Amerson

Jena Martin Amerson

Abstract With the endorsement of Special Representative John Ruggie’s Guiding Principles regarding the issue of business and human rights, an important chapter of this subject has come to a close. Beginning with the then U.N. Secretary General’s “global compact” speech in 1999, the international legal framework for business and human rights has undergone tremendous change and progress. Yet, for all these developments, there has been no exhaustive examination in the legal academy of all of these events; certainly there is no one piece that discusses or analyzes all the major instruments that have been proposed and endorsed by the U.N. …

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Of Declining Prosecution Of Elite Crime, Mary Kreiner Ramirez

mary k ramirez

Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their position of power results in massive deadweight losses for the entire economy as a result of their crimes. Further, this undermines the legitimacy of the rule of law and encourages …

"Systemic Poverty As A Cause Of Recessions", Robert Ashford

Robert Ashford

This article argues that the failure to address and ameliorate systemic poverty is a major cause of recessions. Recessions occur (and sub-optimal employment and growth persist) when a critical mass of market participants come to believe that the distribution of future earning capacity is not sufficient to purchase what can be produced despite the physical and technological capacity to employ available labor and capital to produce more over the same period even at lower unit cost. The essence of systemic poverty is widespread inadequate earning capacity. In recessionary periods, with rising unemployment, the problem of inadequate earning capacity (which perennially …

Fannie Mae And Freddie Mac: Legal Implications Of A Successor Cooperative, Michael E. Murphy

Michael E Murphy

A financial cooperative of mortgage originators is capable of assuming the core securitization functions of Fannie Mae and Freddie Mac as part of a scheme to dismantle these institutions. Such a cooperative would offer advantages in maintaining adequate capitalization and could provide an effective governance structure. A federally chartered, Subchapter T cooperative appears preferable for this purpose.

The Availability Of Takeover Defenses And Deal Protection Devices For Anglo-American Target Companies, Albert "Chip" Saulsbury Iv

Albert "Chip" Saulsbury IV

On July 21, 2011 the U.K.’s Panel on Takeovers and Mergers (the “Panel”) released amendments to the City Code on Takeovers and Mergers (the “Takeover Code”). These amendments, which take effect on September 19, 2011, will have a significant impact on the manner in which companies in the U.K. engage in mergers and acquisitions (“M&A”) and will amplify the differences between British and American deal activity. Because of these amendments to the Takeover Code within the last month, the following Article, The Availability of Takeover Defenses and Deal Protection Devices for Anglo-American Target Companies, is especially timely and will provide …

Voice Without Say: Why More Capitalist Firms Are Not (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuinely employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive or efficient and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the …

Towards A Nexus Of Virtue, Ronald J. Colombo

Ronald J Colombo

Corporate law, like all law, should be directed toward the common good. The common good requires that corporate activity be restrained, if not actively directed, by human virtue. An analysis of the corporate enterprise suggests that those corporate actors with the greatest stake in the exercise of virtue, and best positioned to influence corporate activity via the exercise of virtuous judgment, are the corporation’s officers. Thus, one of the primary objectives of corporate law should be the promotion of virtue among corporate officers.

Contrary to what some might assume, the promotion of virtue among corporate officers need not entail a …

A Pattern Of Unaccountability: Rating Agency Liability, The Dodd-Frank Act, And A Financial Crisis That Could Have Been Prevented, Stephen P. Alicanti

Stephen P Alicanti

By opining on the credit quality of structured debt products, credit rating agencies guide investment decisions and facilitate the debt capital markets. In the years leading up to the financial crisis of 2007, loans were commonly issued to individuals with poor credit histories and insufficient income. After those loans were originated, investment banks packaged them into securitized debt products and sold sections (tranches) to investors. Many of those products received credit rating agencies’ highest endorsement of creditworthiness. Despite their high ratings, those products failed during the financial crisis and devastated individual investors, investment banks, and insurance companies. The financial shockwaves …

A Pattern Of Unaccountability: Rating Agency Liability, The Dodd-Frank Act, And A Financial Crisis That Could Have Been Prevented, Stephen P. Alicanti

Stephen P Alicanti

By opining on the credit quality of structured debt products, credit rating agencies guide investment decisions and facilitate the debt capital markets. In the years leading up to the financial crisis of 2007, loans were commonly issued to individuals with poor credit histories and insufficient income. After those loans were originated, investment banks packaged them into securitized debt products and sold sections (tranches) to investors. Many of those products received credit rating agencies’ highest endorsement of creditworthiness. Despite their high ratings, those products failed during the financial crisis and devastated individual investors, investment banks, and insurance companies. The financial shockwaves …

Who Sits On Texas Corporate Boards? Texas Corporate Directors: Who They Are And What They Do, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Corporate directors play an important role in governing American business, in the capital formation process, and are key to economic growth. Texas businesses play a disproportionately important role among the states in aggregate U.S. job creation, responsible for 37% of all net new American jobs since the recovery began. It is the job of the board of directors to govern the corporation. Director’s duties and responsibilities include: the duty of care; duty of loyalty; and duty of good faith. The recently published Trautman’s Guide™ to Texas Corporate Directors, provides biographical data for most of the approximately 20,000 for-profit corporate directors …