Law Commons^™

Contracting In The Modern World, Enrico Baffi

enrico baffi

In this paper I try explore some of the basic features of modern mass contracting. In my opinion, there are basically four characteristics of modern mass contracting: a)he reduced negotiations; b) the dissemination of standard form contracts; c) the presence of abusive clauses; d) and the recapitulation of the contract and its execution in a single act of stipulation. All the changes are the consequences in the changes of relative costs of activities: a) The reduction in negotiations is the result first of all of the costs that this activity requires and of the costs required to manage personalized contracts; …

Keeping Secrets: An Alternative To The Economic Penalty Enhancement Act, Brittani N. Baldwin

Brittani N. Baldwin

No abstract provided.

Between Law And Markets: Is There A Role For Culture And Ethics In Financial Regulation, Robert David, Daniel Awrey, |William Blair

robert david

The limits of markets as mechanisms for constraining socially suboptimal behavior are well documented. Simultaneously, conventional approaches toward the law and regulation are often crude and ineffective mechanisms for containing the social costs of market failure. So where do we turn when both law and markets fail to live up to their social promise? Two possible answers are culture and ethics. In theory, both can help constrain socially undesirable behavior in the vacuum between law and markets. In practice, however, both exhibit manifest shortcomings.

To many, this analysis may portend the end of the story. From our perspective, however, it …

How Statistical Sampling Can Solve The Conundrum Of Compensation Disclosures Under Dodd-Frank, Michael Ohlrogge

Michael Ohlrogge

One of the more controversial measures of the Dodd-Frank bill is its requirement that companies report the ratio of their CEO’s compensation to that of their median employee. Critics of this provision have claimed that for large companies with employees and subsidiaries throughout the world, compliance with this measure alone could cost millions of dollars a year, due to the difficulties in identifying the median employee. This paper demonstrates that the Securities and Exchange Commission, which is charged with implementing this provision, has the latitude to direct companies to calculate the figure using a statistical sampling procedure which would greatly …

Collaborating With Students As Co-Authors, Wendy B. Davis

Wendy B. Davis

The purpose of this article is to describe the process of collaborating with students enrolled in a course to produce a casebook to be published after the conclusion of the course. I have written two published casebooks, with significant portions of each book written by students as contributing authors. Utilization of a variety of teaching methods facilitates learning by our students. While this article only describes one end- result, the creation of a casebook, the process of creating that book involves many different teaching methods, thus many different opportunities to address students’ differing learning styles. Students learn best when they …

We Want Our Lives Back Too: Expanding Absolute Liability To Include A Recovery For The Victims Of Ecological Catastrophies, Prentice L. White

Prentice L White

WE WANT OUR LIVES BACK TOO: EXPANDING THE COVERAGE OF ABSOLUTE LIABILITY TO INCLUDE A RECOVERY FOR THE VICTIMS OF ECOLOGICAL CATASTROPHES BY PRENTICE L. WHITE No one could have anticipated that the worst ecological disaster in history would take place near Louisiana’s coastline. The morning of April 20, 2010, started like any other spring day, but less than ten hours after the sun rose that morning there would be an explosion that would kill 11 oil workers. The first from the explosion would be seen from outer space and millions of gallons of crude oil would spew into the …

The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi Jiyoung Bang

Naomi J Bang

ABSTRACT: THE GLOBAL SUPPLY CONTRACT CHARADE

HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR

Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to …

The Rebirth Of Dependence: Offering An Alternative Understanding Of Financial Crisis, Ciara Hackett

Ciara Hackett

Dependency theory situated within the broader field of development studies draws on Marxist inspired theories of development and tends to oppose the neo-liberalism interpretation of the markets that is prevalent today. In considering the global system as a mixture of dependent relationships, it goes beyond inter-dependence, suggesting that such relationships are unequal.

The financial crisis of 2007 – 2010 has provided academics and commentators with a unique environment to debate, discuss and analyse our current understanding of the global financial system, the relationships within and the role of entities such as the multi-national corporation (MNC). This article takes dependency theory …

Default Fiduciary Duties In Delaware Llcs: Why The Highly Adaptive Llc Form Calls For A Flexible Default Fiduciary Duty Rule, Richard D. Lahey

Richard D Lahey

No abstract provided.

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Caremark's Irrelevance, Mercer E. Bullard

Mercer E Bullard

In re Caremark Int’l Inc. Derivative Litig. is commonly held out as the iconic corporate law case on liability for a failure of legal compliance, but the true source of corporate law as to legal compliance is the higher standard established by other sources of law. The expected cost of liability, both criminal and civil, for violations of federal healthcare regulations, for example, is a far stronger determinant of corporate compliance systems than potential liability under Caremark. Other areas of industry-specific regulation, such as for financial services, telecommunications and energy, similarly play a greater role than state corporate law in …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Nadelle Grossman

Under federal securities laws and related regulations, public companies must disclose a host of information about their risk management processes to protect firm value. By contrast, these companies need not disclose virtually anything about their strategic management processes to generate firm value. As a result, investors are given a lopsided picture of firm processes to create value, undermining one of the federal securities laws’ central purposes of ensuring that investors receive complete information about public firms.

To address this concern, I propose that the Securities and Exchange Commission require public firms to disclose those qualities of their strategic management processes …

A Right To Speak And Spend: Citizens United And Its Consequences For Objective Journalism, Michael Ellement

Michael Ellement

• Article puts forth two concerns for the future of journalism following the Supreme Court's decision in Citizens United v. F.E.C. First, Citizens United blurred the line as to what the "press" is. Prior to Citizens United, press entities were traditionally exempt from campaign finance regulations because of their status as non-partisan information sources. This gave the press a unique status to participate in political process not enjoyed by other groups. Such a distinction has been eviscerated by Citizens United. All corporations now have the equal right to disseminate unlimited amounts of advocacy for a candidate or political position. Second, …

Dodd-Frank's Inappropriate Treatment Of Insurance Companies: A 'Sifi' Situtation, Mark M. Makhail

Mark M Makhail

Abstract available upon request.

Corporate Tax Risks: A Call For Greater Audit Committee Involvement, Thomas F. Larson

Thomas F Larson

This paper addresses recent turn of the century changes to how the government, the general public, and shareholders view corporate tax risk. The advent of new regulatory regimes necessitates a change in corporate boardroom behavior. This paper advocates a greater and more direct approach to be taken by the audit committee. Specifically, the committee should take control of certain aspects of the evaluation and appropriate levels of tax risk through a number of different ways.

The Illusion Of The Enhanced Unocal Standard, Adebukola A. Mabadeje

Adebukola A Mabadeje

From the time of the Delaware Supreme Court’s 1985 decision in the case of Unocal Corporation v. Mesa Petroleum Co., the word ‘Unocal’ has taken on a meaning of its own. Once simply the name of a corporation, it now signifies the test or principle developed in that case to wit: because of the omnipresent spectre of self-interest where the board of directors of a corporation adopts a defensive response to a hostile takeover offer, in order to be afforded the protection of the business judgment rule, the directors of such a company must have clearly identified that the offer …

The Taxonomy Of Global Securities: Is The U. S. Definition Of A Security Too Broad?, Frederick H. C. Mazando

Frederick H. C. Mazando

This Article compares the scope of the notoriously broad U.S. federal securities laws definitions of a “security” with its counterparts in four major global financial jurisdictions to illustrate the nature and extent of the disparate global securities definitions that profoundly shape international financial rules and potential areas of harmonizing global securities definitions. The global trade in securities developed and grew exponentially in the last three decades without a securities treaty or effective global securities rules largely because there is no global consensus on what securities are or how best to regulate them. The disparate global securities definitions are sine qua …

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

mary k ramirez

Recent financial scandals and the relative paucity of criminal prosecutions against elite actors that benefitted from the crisis in response suggest a new reality in the criminal law system: some wrongful actors appear to be 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 incumbency in power results in massive deadweight losses due to the distorted incentives they now face. Further, this undermines the …

Whatever Happened To The Prudent Man? The Case For Limiting The Influence Of Proxy Advisors Through Fiduciary Duty Law, Jodi Slaght

Jodi Slaght

Proxy advisors are third-party consultants that charge investment advisers for advice about specific companies, and provide “for” or “against” recommendations on shareholder voting issues. Currently, proxy advisors are not regulated by the SEC or any other government agency. At least one commentator has noted that the influence of proxy advisors is so substantial that it “cannot be overstated.” Additionally, proxy advisors are not required to disclose the methodologies used to render their recommendations.

The influence and lack of accountability of proxy advisors has become a cause for concern. In response, the SEC issued a concept release in 2010 addressing possible …

The Duty To Think Strategically, Nadelle Grossman

Nadelle Grossman

Under Delaware corporate law, directors and officers have a duty to oversee their firm’s management of risk to limit losses. Corporate law does not, however, require directors or officers to oversee their firm’s management of strategy to create 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 courts and commentators only on risk management to prevent losses could actually undermine a firm’s management of its strategy for gains. I therefore propose a model for how Delaware corporate law can drive firms to …

The End Of Shareholder Litigation? Allowing Shareholders To Customize Enforcement Through Arbitration Provisions In Charters And Bylaws, Paul D. Weitzel

Paul D. Weitzel

Shareholder litigation has been heavily criticized for its inability to compensate harmed shareholders or deter managerial misconduct. While some have suggested abolishing shareholder litigation altogether, this article takes a more moderate approach. I propose allowing shareholders to enforce charter and bylaw provisions that require arbitration of certain disputes. For example, an acquisitive company may require arbitration of merger-related suits, while allowing non-merger suits to proceed in court. Likewise, a company in an industry known for volatile stock prices could require a price drop of three or four standard deviations before the suit could be brought in court, rather than arbitration. …