Law Commons^™

Sustainability In The Boardroom: Reconsidering Fiduciary Duty Under Revlon In The Wake Of Public Benefit Corporation Legislation, Rugger Burke

Rugger Burke

On July 17, 2013, Delaware Governor Jack Markell signed into law legislation establishing the public benefit corporation. This legislation redefines the law of corporate fiduciary duties in Delaware, home to more than 50% of all publicly-traded companies in the United States and 64% of the Fortune 500.

Particularly, this legislation redefines director fiduciary duties within the sale of control context. For the typical Delaware corporation, director fiduciary duties in a sale of control are governed by the seminal corporate law case Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., which narrows the general fiduciary duties of loyalty and care …

The United States, Lawrence A. Hamermesh

Lawrence A. Hamermesh

No abstract provided.

10 Things That Tick Off The Chancellors, And The Ethical Issues They Raise, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

Dodd-Frank’S Confict Minerals Rule: The Tin Ear Of Government-Business Regulation, Henry Lowenstein

Henry Lowenstein

This paper examines an unusual provision included in the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010), Section 1502 known as the Conflict Minerals Rule. This provision, having nothing to do with the subject matter of the act itself, attempts to place a chilling effect on the trade of four identified minerals from the Democratic Republic of Congo. The provision and its subsequent rule, surprisingly delegated to the U.S. Securities and Exchange Commission (an agency lacking subject matter expertise in minrals) presents a case and object lession of almost every cost, procedural and legal error that can take place …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Living With Adr: Evolving Perceptions And Use Of Mediation, Arbitration And Conflict Management In Fortune 1,000 Corporations, Thomas J. Stipanowich

Thomas J. Stipanowich

For the second time in fifteen years, leading counsel at many of the world’s largest corporations participated in a landmark survey of perceptions and experiences with “alternative dispute resolution (ADR)”—mediation, arbitration and other third party intervention strategies intended to produce more satisfactory paths to managing and resolving conflict, including approaches that may be more economical, less formal and more private than court litigation, with more satisfactory and more durable results. Comparing their responses to those of the mid-1990s, significant evolutionary trends are observable. As a group, corporate attorneys have moderated their expectations for ADR. At the same time, more corporations …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Csr And Law As Alternative Regulatory Systems, Benedict Sheehy

Benedict Sheehy

Abstract: CSR (Corporate Social Responsibility) is an increasingly important area of corporate and legal concern. In addition to problems defining the meaning of the term and understanding the implications for, there is a lack of understanding how it can, does and should interact with law. This paper answers this gap using a method used in the sociology of law, systems theory. The paper argues that CSR can be understood as a response to social costs and law’s apparent failure to curb those costs. It focuses the examination on social costs generated by large industrial organisations and how they are regulated …

Recent Developments In Delaware Corporate Law, Lawrence Hamermesh, Faiza Saeed, Mark Gentile

Lawrence A. Hamermesh

No abstract provided.

Redefining Corporate Law, David K. Millon

David K. Millon

None available.

The Law Of Corporate Purpose, David Yosifon

David G. Yosifon

Delaware corporate law requires corporate directors to manage firms for the benefit of shareholders, and not for any other constituency. Delaware jurists have been clear about this in their case law, and they are not coy about it in extra-judicial settings, such as speeches directed at law students and practicing members of the corporate bar. Nevertheless, the reader of leading corporate law scholarship is continually exposed to the scholarly assertion that the law is ambiguous or ambivalent on this point, or even that case law affirmatively empowers directors to pursue non-shareholder interests. It is shocking, and troubling, for corporate law …

Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman P.Q. Johnson

Lyman P. Q. Johnson

This paper, part of a larger scholarly project, addresses one of four areas – i.e., the emergence of corporate personhood – where, historically, law has both influenced and mirrored cultural expectations concerning corporate responsibility. The other areas (treated elsewhere) are corporate purpose, corporate regulation, and corporate governance. Corporate personhood is a subject of longstanding and recurring interest that, notwithstanding it has been a settled concept since the 19th century, continues to vex and excite, as seen in the U. S. Supreme Court’s splintered 5-4 decision in the 2010 case of Citizens United v. Federal Election Commission. The decades-long debates about …

Enduring Equity In The Close Corporation, Lyman P.Q. Johnson

Lyman P. Q. Johnson

This Article develops the theme of change/sameness in corporate law. Written to commemorate the thirty-fifth anniversary of Wilkes v. Springside Nursing Home, Inc., the Article argues that the equitable fiduciary duties so central to Wilkes endure today in the close corporation precisely because equity, by its nature, is so exquisitely adaptive – under constantly changing circumstances − to the ongoing pursuit of a just ordering within the corporation. Unlike fixed legal rules – which are categorical, static, and do not take sufficient account of changes wrought by time or human arationality – equity is malleable and timely as it reckons …

New Approaches To Corporate Law, Lyman P. Q. Johnson

Lyman P. Q. Johnson

No abstract provided.

An Introduction To The Federalist Society's Panelist Discussion Titled "Deregulating The Markets: The Jobs Act", Lawrence Hamermesh, Peter Tsoflias

Lawrence A. Hamermesh

At its 2012 National Lawyers Convention in Washington, D.C., the Corporations, Securities & Antitrust Practice Group of the Federalist Society for Law and Public Policy Studies hosted a panel discussion titled "Deregulating the Markets: The JOBS Act." The panel members were the Honorable Daniel M. Gallagher, Joseph H. Kaufman, Joanne T. Medero, Professor Robert T. Miller, and Professor Robert B. Thompson. The Honorable Frank H. Easterbrook moderated the discussion. This Article begins with a cursory overview of the Jumpstart Our Business Startups Act (the "JOBS Act" or "Act") provisions discussed by the panelists. It then summarizes the positions expressed by …

Revisiting Omnicare: What Does Its Status 10 Years Later Tell Us?, Megan Wischmeier Shaner

Megan Wischmeier Shaner

No abstract provided.

Veil-Piercing Unbound, Peter B. Oh

Peter B. Oh

Veil-piercing is an equitable remedy. This simple insight has been lost over time. What started as a means for corporate creditors to reach into the personal assets of a shareholder has devolved into a doctrinal black hole. Courts apply an expansive list of amorphous factors, attenuated from the underlying harm, that engenders under-inclusive, unprincipled, and unpredictable results for entrepreneurs, litigants, and scholars alike. Veil-piercing is misapplied because it is misconceived. The orthodox approach is to view veil-piercing as an exception to limited liability that is justified potentially only when the latter is not, a path that invariably leads to examining …