Agency Commons^™

The Dutch Auction Myth, Peter B. Oh

ExpressO

The initial public offering process is under assault. Critics of this process have woven a complex set of interconnected objections to the orthodox method for conducting IPOs, pricing of shares, and allocating them to preferred investors. These critics instead point to online auctions as an alternative IPO method that can provide more equitable access, efficient prices, and egalitarian allocations. These claims rest on Google’s recent IPO and W.R. Hambrecht + Co.’s OpenIPO mechanism, conventionally regarded as impure variants of what is known as a descending-bid or Dutch auction (Dutch IPO).

This article assesses the empirical and theoretical case for Dutch …

Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner

ExpressO

The Delaware General Corporation Law was amended in 1986 to permit shareholder-approved exculpatory charter provisions shielding directors from monetary liability for certain types of fiduciary duty breaches, explicitly excepting breaches of the duty of loyalty and conduct not in "good faith" – evidently distinct concepts in the Delaware legislature’s view. This paper examines the development of corporate fiduciary duty doctrine in Delaware leading up to and following this statutory amendment, focusing particularly on the Delaware courts' evolving conception of the meaning and doctrinal status of good faith. Specifically, the paper argues that Delaware's statutory exculpation regime and good faith case …

Market Impact In The Information Age: Protecting Hotel Owners From Hotel Management Companies, Charles S. Hale Ii

West Virginia Law Review

No abstract provided.

Theorizing Agency, Susan Carle

American University Law Review

Progressive legal scholars today exhibit contrasting views on the scope of legal actors' agency in making "choices" about how to lead their lives. Feminist legal scholar Joan C. Williams, for example, challenges claims that women who leave the paid workforce to stay home with children have made a voluntary choice to take this path. Critical race scholar Ian Haney López, on the other hand, argues that the social construction of racial identity occurs precisely through the many voluntary choices members of both subordinated and dominant racial groups make about matters that implicate racial meanings. Williams contests the idea of voluntary …

How "Mead" Has Muddled Judicial Review Of Agency Action, Lisa S. Bressman

Vanderbilt Law Review

When the Supreme Court decided United States v. Mead Corp. four years ago, Justice Scalia predicted that judicial review of agency action would devolve into chaos. This Article puts that prediction to the test by examining the court of appeals decisions applying the decision. Justice Scalia actually understated the effect of Mead. This Article suggests a remedy for the mess.

In Mead, the Court held that an agency is entitled to deference under Chevron, U.S.A., Inc. v. NRDC only if Congress has delegated to that agency the authority to issue interpretations that carry the force of law, and the agency …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Kruse V. Wells Fargo Home Mortgage, Inc. (Decided September 10, 2004), Jennifer Katehos

NYLS Law Review

No abstract provided.

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

A Reexamination Of Federal Agency Use Of Declaratory Orders, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Rejecting The Myth Of Popular Sovereignty And Applying An Agency Model To Direct Democracy, Glen Staszewski

Vanderbilt Law Review

The use of direct democracy is at its highest level in more than one hundred years.' The direct initiative, which is the primary focus of this Article, allows private citizens to bypass the traditional legislative process and make binding laws, often in highly contentious areas of public policy. The 2000 elections, for example, placed directly before voters the issues of school vouchers, physician-assisted suicide, same- sex marriage and other gay and lesbian rights, gun control, campaign finance reform, bilingual education, gambling, medical use of marijuana, and sentencing for drug offenders, as well as some of the perennial favorites-tax reform and …

A Restatement Or A Redefinition: Elimination Of Inherent Agency In The Tentative Draft Of The Restatement (Third) Of Agency, Matthew P. Ward

Washington and Lee Law Review

No abstract provided.

Conceptions Of Lawyers' Agency In Legal Ethics Scholarship, Susan Carle

Scholarly Articles in Law Reviews & Journals

No abstract provided.

On The Hijacking Of Agencies (And Airplanes): The Federal Aviation Administration, Agency Capture, And Airline Security, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in …

Privatization And The Freedom Of Information Act: An Analysis Of Public Access To Private Entities Under Federal Law, Craig D. Feiser

Federal Communications Law Journal

Congress drafted the Freedom of Information Act to ensure that the public would always be able to keep track of the events happening behind governmental agency doors. In an age of privatization of governmental services in the name of efficiency, the Act needs to be adapted to ensure that its original purpose remains sound. Thus far, courts have not kept pace with this purpose by interpreting agency and agency record under the Act too narrowly. This may very well result in government secrecy as services are farmed out to entities not covered under the Act. This Article analyzes the various …

Monitoring Governmental Disposition Of Assets: Fashioning Regulatory Substitutes For Market Controls, Harold J. Krent, Nicholas S. Zeppos

Vanderbilt Law Review

Each year, the government sells and leases public assets worth billions of dollars. FCC auctions to allocate rights to electromagnetic spectrum generated over twenty billion dollars within a three-year period, and proceeds from mineral leases, timber sales, and disposition of real estate from defaulting thrifts have surpassed several billion dollars annually.

From the taxpayer's perspective, however, government sales and leases have been deplorable. The government has donated valuable resources to preferred claimants, allocated scarce broadcast and oil rights resources by lottery, and sold both public land and mineral rights to private parties at a fraction of the market price. Although …

Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi

Vanderbilt Law School Faculty Publications

This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where …

Agency And The Unincorporated Firm: Reflections On Design On The Same Plane Of Interest, Deborah A. Demott

Washington and Lee Law Review

No abstract provided.

Freedom Of Contract, Fiduciary Duties, And Partnerships: The Bargain Principle And The Law Of Agency, J. Dennis Hynes

Publications

No abstract provided.

The Administrative Law Agenda For The Next Decade, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Corporate Philanthropy, Executives' Pet Charities And The Agency Problem, Jayne W. Barnard

Faculty Publications

No abstract provided.

Unfair Competition Act Enforcement By Agencies, Prosecutors, And Private Litigants: Who's On First?, R. C. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Treatment Of Nominee Corporations For Income Tax Purposes, Norton L. Steuben

Seattle University Law Review

This Article traces the development of the nonentity and agency approaches to the treatment of nominee corporations. The nonentity approach had a short lifespan and is of little use today. The agency approach, in contrast, experienced a period of development that resulted in a complex six-factor test that was employed in at least three circuits. When a conflict in the application of the six-factor test developed, the Supreme Court in Commissioner v. Bollinger enunciated a different approach and established a new, more workable standard. This Article explores the limitations of that standard as well as its practical application for planners.

Hospital Liability Related To Understaffing Of Nursing Services: Walking The Fine Line Between Respondeat Superior And Corporate Negligence, Carmen D. Rasmussen

West Virginia Law Review

No abstract provided.

The Apa Procedural Rule Exemption: Looking For A Way To Clear The Air, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Management Of Federal Agency Adjudication, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Fraud Liability Under Agency Principles: A New Approach, Steven N. Bulloch

William & Mary Law Review

No abstract provided.

Regulating The Regulators In New York State: Part I, Harold I. Abramson

Scholarly Works

In New York State, there is an elaborate system in place for holding regulatory agencies accountable. It appears to be a system developed by happenstance rather than by design. It cannot be discovered by looking it up in our statute books. It can only be found by examining court cases, executive orders, legislative resolutions, bill jackets and governmental reports and by interviewing participants in the system. It is a system with which people knowledgeable of state government is at least familiar. But it is a system of regulation which appears not to be well documented nor well studied. This paper …