Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Corporations

2013

Discipline
Institution
Publication
Publication Type
File Type

Articles 1 - 30 of 135

Full-Text Articles in Law

The Go-Shop “Lure”: Go-Shop V. No-Shop In Merger And Acquisition In Public Company, Yilei Zhou Dr. Dec 2013

The Go-Shop “Lure”: Go-Shop V. No-Shop In Merger And Acquisition In Public Company, Yilei Zhou Dr.

Yilei Zhou Dr.

In March 2013, one of the world biggest PC retailers, Dell, announced its privatization plan, in which adopted the go-shop clause. Although used by many public companies in merger and acquisition, the go-shop clause in fact developed from Revlon duty, that board of director must act in good faith to maximize the shareholders’ interests in the deal. Generally speaking, since traditional no-shop clause without “fiduciary out” provision in merger agreement conflict with board’s Revlon duty, consequently, if running successfully, the go-shop clause is the best tool for shareholders to maximize their interests. However, court imputes many restrictions on the board …


Why Y? Reflections On The Baucus Proposal, Reuven S. Avi-Yonah Dec 2013

Why Y? Reflections On The Baucus Proposal, Reuven S. Avi-Yonah

Articles

The international tax reform proposal introduced by Sen. Max Baucus, D-Mont., on November 19 contains several significant innovations that promise to define the terms of the debate for the foreseeable political future. (Prior coverage: Tax Notes Int’l, Nov. 25, 2013, p. 691.) It is therefore worth examining in detail even if it seems unlikely that progress toward meaningful reform can be achieved very soon.


Concentration On The Las Vegas Strip: An Exploration Of The Impacts, David G. Schwartz Nov 2013

Concentration On The Las Vegas Strip: An Exploration Of The Impacts, David G. Schwartz

Library Faculty Publications

Looking at two snapshots, albeit from a distance, gives an overview of how concentrated the gaming industry in Nevada has become:

  • In 1998, 23 publicly held corporations owned 65 casinos that grossed more than $12 million that year from gaming. These casinos grossed 75.48% of the state’s total gaming revenue that fiscal year.
  • In 2012, 22 publicly held corporations owned 70 casinos that grossed more than $12 million that year from gambling, pulling in 78.0% of that state’s total gaming revenue that fiscal year.


Putting Stockholders First, Not The First-Filed Complaint, Leo Strine, Lawrence Hamermesh, Matthew Jennejohn Oct 2013

Putting Stockholders First, Not The First-Filed Complaint, Leo Strine, Lawrence Hamermesh, Matthew Jennejohn

Lawrence A. Hamermesh

The prevalence of settlements in class and derivative litigation challenging mergers and acquisitions in which the only payment is to plaintiffs’ attorneys suggests potential systemic dysfunction arising from the increased frequency of parallel litigation in multiple state courts. After examining possible explanations for that dysfunction, and the historical development of doctrines limiting parallel state court litigation—the doctrine of forum non conveniens and the “first-filed” doctrine—this article suggests that those doctrines should be revised to better address shareholder class and derivative litigation. Revisions to the doctrine of forum non conveniens should continue the historical trend, deemphasizing fortuitous and increasingly irrelevant geographic …


Sustainability In The Boardroom: Reconsidering Fiduciary Duty Under Revlon In The Wake Of Public Benefit Corporation Legislation, Rugger Burke Oct 2013

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 Commons, Capitalism, And The Constitution, George Skouras Oct 2013

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.


E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman Oct 2013

E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …


Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven J. Willis Oct 2013

Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven J. Willis

South Carolina Law Review

No abstract provided.


A Capital Market, Corporate Law Approach To Creditor Conduct, Mark J. Roe, Frederico Cenzi Venezze Oct 2013

A Capital Market, Corporate Law Approach To Creditor Conduct, Mark J. Roe, Frederico Cenzi Venezze

Michigan Law Review

The problem of creditor conduct in a distressed firm—-for which policymakers ought to have the distressed firm’s economically sensible repositioning as a central goal—-has vexed courts for decades. Because courts have not come to coherent, stable doctrine to regulate creditor behavior and because they do not focus on building doctrinal structures that would facilitate the sensible repositioning of the distressed firm, social costs arise and those costs may be substantial. One can easily see why developing a good rule here has been hard to achieve: A rule that facilitates creditor intervention in the debtor’s operations beyond the creditor’s ordinary collection …


Why Does Executive Greed Prevail In The United States And Canada But Not In Japan? The Pattern Of Low Ceo Pay And High Worker Welfare In Japanese Corporations, Alberto R. Salazar V. Sep 2013

Why Does Executive Greed Prevail In The United States And Canada But Not In Japan? The Pattern Of Low Ceo Pay And High Worker Welfare In Japanese Corporations, Alberto R. Salazar V.

Alberto R. Salazar V.

According to a list of the 200 most highly-paid chief executives at the largest U.S. public companies in 2013, Oracle’s Lawrence J. Ellison remained the best paid CEO and earned $96.2 million as total annual compensation last year. He has received $1.8 billion over the past 20 years. The lowest paid on the same list is General Motors’ D. F. Akerson who earned $11.1 million. The average national pay for a non-supervisory US worker was $51,200 last year and a CEO made 354 times more than an average worker in 2012. Hunter Harrison, Canadian Pacific Railway Ltd., was the best …


Privacy On The Books And On The Ground, Kenneth A. Bamberger, Deirdre K. Mulligan Sep 2013

Privacy On The Books And On The Ground, Kenneth A. Bamberger, Deirdre K. Mulligan

Kenneth A. Bamberger

No abstract provided.


Lessons From Metaethics, Cognitive Neuroscience, Moral Psychology, And Behavioral Economics: The Use Of Ethical Intuition In Legal Compliance For Business Entities, Eric C. Chaffee Sep 2013

Lessons From Metaethics, Cognitive Neuroscience, Moral Psychology, And Behavioral Economics: The Use Of Ethical Intuition In Legal Compliance For Business Entities, Eric C. Chaffee

Eric C. Chaffee

This article challenges the widely held view in legal education and in practice that what lawyers should be doing in providing legal advice consists solely of engaging in legal research and analytic reasoning. This article suggests that ethical intuition—i.e., the unconscious recognition that a specific action is good, evil, or morally neutral—may have a useful role to play in making legal compliance decisions for business entities.

Although largely ignored by the legal academy, scholars in numerous disciplines have acknowledged the role that intuition plays in decision making. Philosophers and religious scholars initially recognized role of intuition in moral decision making …


The Siren Call Of Equity Crowdfunding, Michael B. Dorff Sep 2013

The Siren Call Of Equity Crowdfunding, Michael B. Dorff

Michael B Dorff

The JOBS Act opened a new frontier in start-up financing, for the first time allowing small companies to sell stock the way Kickstarter and RocketHub have raised donations: on the web, without registration. President Obama promised this novel form of crowdfunding would generate jobs from small businesses while simultaneously opening up exciting new investment opportunities to the middle class. While the new exemption has its critics, their concern has largely been confined to the limited amount of disclosure issuers must provide. They worry that investors will lack the information they need to separate out the Facebooks from the frauds. This …


Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú Sep 2013

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church should operate to …


Freedom Of Establishment And The Effective Participation Of Companies In Economic Life, Michala Meiselles Ms Aug 2013

Freedom Of Establishment And The Effective Participation Of Companies In Economic Life, Michala Meiselles Ms

Michala Meiselles Ms

Though the freedom of establishment has its roots in the provisions of the Treaty of Rome, it is the work of the Court of Justice of the European Union (the Court) that has been instrumental in the evolution of this freedom. In a succession of cases, the Court has transformed this otherwise largely theoretical concept into a functional tool responsive to the needs of business. By so doing, the Court has transformed this freedom into one that is attractive not only to businesses based in the European Union (EU) but also to those based outside it. This paper starts off …


The Plaintiffs' Lawyer's Transaction Tax: The New Cost Of Doing Business In Public Company Deals, Neva Browning Jeffries Aug 2013

The Plaintiffs' Lawyer's Transaction Tax: The New Cost Of Doing Business In Public Company Deals, Neva Browning Jeffries

Neva B Jeffries

This article addresses the proliferation of frivolous litigation in the context of public company deals. In 2012 93% of public company mergers and acquisitions valued at over $100 million and 96% of such transactions valued over $500 million incurred litigation. Through these “merger objection suits,” plaintiffs’ attorneys have successfully attached a transaction tax – in the form of attorneys’ fees – as the cost of doing business for public company mergers and acquisitions. Armed with the knowledge that time is of the essence in these transactions, plaintiffs’ attorneys understand the leverage they have to force a quick settlement with a …


Moving Money: International Financial Flows, Taxes, Money Laundering & Transparency, Richard Gordon, Andrew P. Morriss Aug 2013

Moving Money: International Financial Flows, Taxes, Money Laundering & Transparency, Richard Gordon, Andrew P. Morriss

Andrew P Morriss

Recent publicity over enormous estimates of “missing” wealth and the use of sophisticated tax strategies by companies like Apple, Google, and Starbucks have produced a demand that the wealthy pay a “fair” amount of tax regardless of their compliance with the letter of tax laws. In particular, the Tax Justice Network’s claim that $21-$32 trillion of “hidden” wealth remains untaxed has garnered considerable attention. In this paper we argue that these claims rest on poor data and analysis and mistakes about how financial transactions work. We further argue that the disputes are about fundamentally conflicting visions of how financial transactions …


Systemic Harms And Shareholder Value, Jeffrey N. Gordon Aug 2013

Systemic Harms And Shareholder Value, Jeffrey N. Gordon

Jeffrey N Gordon

The financial crisis has demonstrated serious flaws in the corporate governance of systemically important financial firms. In particular, the Shareholder Value norm, which has guided corporate governance reform for a generation, proves to be a faulty guide for managerial action in systemically important firms. This is not only because the failure of such firms will have spillovers that defy the cost-internalization of the tort system but also because these spillovers will harm their own majoritarian shareholders. The interests of diversified shareholders fundamentally diverge from the interests of managers and other controllers because the failure of a systemically important financial firm …


Financial Armageddon Routs Law Again, Nicholas L. Georgakopoulos Aug 2013

Financial Armageddon Routs Law Again, Nicholas L. Georgakopoulos

Nicholas L Georgakopoulos

This essay, after highlighting the unique aspects of financial markets, offers a mostly rational account for financial crises, centering on the 2008 crisis as an example. The thesis is that market participants overestimate the duration of high productivity growth due to new technologies and produce occasional—and likely unavoidable—bubbles. Considering potential changes in the regulation of financial markets, the conclusion is grim. Regulators appear to have exhausted the effective legal levers against overestimations of continued high growth. The legislative responses to the last few crises were likely unproductive. The sole (but still unrealistic) effective protection would be the constitutional development of …


The Underutilized Foreign Investor, Griffin Weaver Aug 2013

The Underutilized Foreign Investor, Griffin Weaver

Griffin Weaver

For most states, if not all, the push for economic advancement is at the front of every administration’s agenda. This is especially true for developing countries in the Middle East whose standard of living and international power is largely tied to its economic condition. An important indicator, if not condition, of a state’s economic health is the level of foreign direct investment (FDI) received by the state. This inflow of money is essential for the growth and stability of a state’s economy. As one U.S. official once noted, the United States “need[s] a net inflow of capital of $3 billion …


Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz Aug 2013

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine 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 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 rarity of genuine …


The Problem Of Nonprofit Executive Pay?: Evidence From U.S. Colleges And Universities, Brian D. Galle, David I. Walker Aug 2013

The Problem Of Nonprofit Executive Pay?: Evidence From U.S. Colleges And Universities, Brian D. Galle, David I. Walker

Brian D. Galle

Nonprofit organizations suffer from agency problems that are similar to or perhaps even more severe than those observed at for-profit companies. As a result, one might expect the executive pay setting process in the two sectors to reflect similar deficiencies. This Article explains why the managerial power theory that was developed to help explain for-profit executive pay is plausibly applicable to nonprofits. More importantly, this Article offers new evidence based on data from a large panel of colleges and universities collected across a nine year period that supports the idea that potential stakeholder outrage plays a role in limiting nonprofit …


The Need For Federal Preemption Of Executive Compensation Reform: How Corporate Governance And Economic Justice Objectives Are Only Achievable Through Comprehensive Federal Regulation Of Executive Compensation, Cory Howard Jul 2013

The Need For Federal Preemption Of Executive Compensation Reform: How Corporate Governance And Economic Justice Objectives Are Only Achievable Through Comprehensive Federal Regulation Of Executive Compensation, Cory Howard

Cory Howard

Since the beginning of the most recent economic downturn, there has been an increased level of attention on the pay that executives at publicly traded companies have received. Numerous reforms, including the Dodd-Frank Act and the Troubled Asset Relief Program (TARP), imposed transient, although included some permanent limitations, on executive compensation packages. However, given the importance of executive compensation reform to both corporate governance and economic/social justice initiatives, it is imperative that the federal legislature do more. This article will explore some of the patchwork of regulations that the federal government has enacted and the methods that the states use …


Re-Envisioning The Controlling Shareholder Regime: Why Controlling Shareholders And Minority Shareholders Embrace Each Other, Sang Yop Kang Jul 2013

Re-Envisioning The Controlling Shareholder Regime: Why Controlling Shareholders And Minority Shareholders Embrace Each Other, Sang Yop Kang

Sang Yop Kang

According to conventional corporate governance scholarship, controlling shareholder regimes exist in jurisdictions where minority shareholders are not well protected by controlling shareholders’ expropriation. However, Professor Ronald Gilson raises a critical point against the conventional view; if laws are inefficient and do not protect investors, as the conventional view explains, why do we observe any minority shareholders at all in such “bad-law” countries? One possible reason is that in response to controlling shareholders’ expropriation, minority shareholders discount severely shares that corporations issue. Then, a related question is: if it is true, why do some controlling shareholders in bad-law countries have many …


The Underutilized Foreign Investor, Griffin Weaver Jul 2013

The Underutilized Foreign Investor, Griffin Weaver

Griffin Weaver

No abstract provided.


Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman Jul 2013

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …


Insider Trading Law In East Asia And Enforcement: Japan, China, Hong Kong And Taiwan Visite, Chien-Chung Lin Jul 2013

Insider Trading Law In East Asia And Enforcement: Japan, China, Hong Kong And Taiwan Visite, Chien-Chung Lin

Chien-Chung Lin

No abstract provided.


A Corporation Has No Soul - The Business Entity Law Response To Challenges To The Contraceptive Mandate Under The Ppaca, Thomas E. Rutledge Jul 2013

A Corporation Has No Soul - The Business Entity Law Response To Challenges To The Contraceptive Mandate Under The Ppaca, Thomas E. Rutledge

Thomas E. Rutledge

The most contentious matter in the implementation of the Patient Protection and Affordable Care Act (the “PPACA”) is not a question of health care, but rather one of the law of business organizations. The dispute has been over the requirement that group health insurance plans provide, on a no-cost sharing basis, coverage for a variety of procedures and prescription medicines involving contraception and what are described as “abortificants.”

The class of suits subject to this discussion were filed by what are not religious organizations but rather for-profit business ventures, asserting that they should be exempt from the requirements of the …


Unions, Corporations, And The First Amendment: A Response To Professors Fisk And Chemerinsky, Todd E. Pettys Jul 2013

Unions, Corporations, And The First Amendment: A Response To Professors Fisk And Chemerinsky, Todd E. Pettys

Todd E. Pettys

In this response to Professor Fisk and Chemerinsky’s critique of the Supreme Court’s ruling in Knox v. SEIU Local 1000, I make two arguments. First, I challenge the premise of shareholder-employee equivalency that undergirds key portions of Fisk and Chemerinsky’s analysis. Second, I contest the claim that Knox contributes to incoherence in the Court’s First Amendment jurisprudence. Specifically, I challenge Fisk and Chemerinsky’s argument that Knox is difficult to reconcile with the Court’s leading precedents on the speech rights of government employees, and I raise doubts about their reading of the Court’s compelled-speech cases involving complaints that one’s resources are …


Lessons From Metaethics, Cognitive Neuroscience, Moral Psychology, And Behavioral Economics: The Use Of Ethical Intuition In Legal Compliance Decision Making For Business Entities, Eric C. Chaffee Jul 2013

Lessons From Metaethics, Cognitive Neuroscience, Moral Psychology, And Behavioral Economics: The Use Of Ethical Intuition In Legal Compliance Decision Making For Business Entities, Eric C. Chaffee

Eric C. Chaffee

This article challenges the widely held view in legal education and in practice that what lawyers should be doing in providing legal advice consists solely of engaging in legal research and analytic reasoning. This article suggests that ethical intuition—i.e., the unconscious recognition that a specific action is good, evil, or morally neutral—may have a useful role to play in making legal compliance decisions for business entities.

Although largely ignored by the legal academy, scholars in numerous disciplines have acknowledged the role that intuition plays in decision making. Philosophers and religious scholars initially recognized role of intuition in moral decision making …