Law Commons^™

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 …

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 …

The Practical Soul Of Business Ethics: The Corporate Manager's Dilemma And The Social Teaching Of The Catholic Church, Leo L. Clarke, Bruce P. Frohnen, Edward C. Lyons

Edward C. Lyons

This Article focuses on and attempts to dispel an overly narrow view of the moral responsibilities of corporations and their managers. Many businessmen and lawyers, relying on prevailing approaches to business ethics, labor under the misperception that the moral ladder in the business world has only one rung: "Be honest." Americans, however, should, can and do expect more from the managers of our large corporations, and virtually every Fortune 100 company publicly espouses a "social responsibility" far exceeding mere honesty. Further, as is demonstrated, American jurisprudence is consistent with those expectations. This Article's thesis is that Catholic Social Teaching provides …

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 …

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.

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 …

Addressing Gaps In The Dodd-Frank Act: Directors' Risk Management Oversight Obligations, Kristin N. Johnson

University of Michigan Journal of Law Reform

In the years leading to the recent financial crisis, finance theorists introduced innovative methods, including quantitative financial models and derivative instruments, to measure and mitigate risk exposure. During the financial crisis, financial institutions facing insolvency revealed pervasive misunderstandings, misapplications, and mistaken assumptions regarding these complex risk management methods. As losses in financial markets escalated and caused liquidity and solvency crises, commentators sharply criticized directors and executives at large financial institutions for their risk management decisions. By adopting the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress directly and indirectly addresses certain risk management oversight concerns at large, complex financial …

"Patient Capital": Can Delaware Corporate Law Help Revive It?, Jack B. Jacobs

Washington and Lee Law Review

No abstract provided.

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 …

Beyond Territoriality And Deferral: The Promise Of "Managed And Controlled", Reuven S. Avi-Yonah

Articles

In the new version of his Stop Tax Haven Abuse Act, Sen. Carl Levin, D-Mich., once again proposed to modify the definition of residence for domestic corporations (IRC section 7701). Section 103 of the act seeks to: stop companies run from the United States claiming foreign status by treating foreign corporations that are publicly traded or have gross assets of $50 million or more and whose management and control occur primarily in the United States as U.S. domestic corporations for income tax purposes. [Emphasis in original.] This is not a new suggestion. In response to the inversions of the early …

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 …

Eliminating Wall Street's Safety Net: How A Systemic Risk Premium Can Solve "Too Big To Fail", Jason Rudderman

Jason Rudderman

Eliminating Wall Street’s Safety Net: How a Systemic Risk Premium Can Solve “Too Big to Fail” The financial crisis of 2007 – 2009 sent the United States and the global economy into its worst recession since the great depression. Large, interconnected financial and non-financial institutions were at the center of the financial crisis. The institutions highly leveraged positions during the crisis led the government to take extreme measures, including bailing out some of these “too big to fail,” but failing institutions. The crisis led the United States Congress to pass the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank …

“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. …

The Case Against The Dodd-Frank Act’S Living Wills: Contingency Planning Following The Financial Crisis, Nizan Geslevich Packin

Nizan Geslevich Packin

The Dodd-Frank Act’s “living will” requirement mandates that systemically important financial institutions develop wide-ranging strategic analyses of their business affairs, and submit comprehensive contingency plans for reorganization or resolution of their operations to regulators. The goal is to mitigate risks to the financial stability of the US and encourage last-resort planning, which will allow for a rapid and efficient response in the event of an emergency. Beyond the general framework set forth in the Dodd-Frank Act, very little is known about living wills; no legal literature currently exists on what the concept entails, and regulators have not yet created any …

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 …

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 …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …