Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- Publication Type
Articles 181 - 210 of 271
Full-Text Articles in Business Organizations Law
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher C. French
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher C. French
UC Law Business Journal
A common misconception that insurance coverage is not available for intentional injuries or damage is, in fact, untrue. This myth is based in the “fortuity doctrine” that provides insurance should only cover losses by chance, and public policy that disfavors insurance for intentional harms. In reality, many types of liability insurance policies cover intentional torts ranging from trademark infringement to defamation and employment discrimination. These policies also cover punitive damage awards in most jurisdictions. Furthermore, public policy actually favors insurance recoveries for intentional torts because no empirical data exists to support the proposition that liability insurance increases policy holder misconduct. …
California License To Be Sued: A Critique Of Strict Liability Imposed On Business Owner Licensees From The Perspective Of The Smog Check Industry, Zachary Young
UC Law Business Journal
This article criticizes strict liability when used in disciplinary actions by regulatory agencies. The article examines the strict liability theory from the perspective of the automotive smog check industry, where the law is relatively new, to set forth principles that should be applied to a number of industries. The article also discusses the background of the smog check industry and its governing law and critiques the current state of the law by discussing the burdensome effect it places on business owners including smog station owners. The article proposes a bright line rule to limit strict liability and more effectively pursue …
The Creation And Destruction Of Price Cartels: An Evolutionary Theory, William Bradford
The Creation And Destruction Of Price Cartels: An Evolutionary Theory, William Bradford
UC Law Business Journal
Why are gas stations able to charge price premiums above competitive price and how are companies arrive at identical supracompetitive price? The article describes the causes and effects of supracompetitive pricing, explains the inability of antitrust law to suppress some instances of supracompetitive pricing, establishes the importance of trust between firms as a necessary condition for supracompetitive pricing, and illustrates how the strategic exchange of information is crucial to the creation and destruction of trust and thus to the evolution and devolution of price cartels. The author develops a "positive theory" that explains and predicts the evolution and devolution of …
The Bonds That Tie: Will A Performance Bond Require That A Surety Deliver A Certified Green Building?, Darren A. Prum, Lorilee A. Medders
The Bonds That Tie: Will A Performance Bond Require That A Surety Deliver A Certified Green Building?, Darren A. Prum, Lorilee A. Medders
UC Law Business Journal
In 2006, the legislators of Washington, D.C. passed landmark legislation introducing green building requirements for various types of structures into the jurisdiction over a five-year period. A noteworthy aspect of the legislation is that it directed construction projects within the district to purchase green performance bonds up to $3 million to guard against a privately owned project’s failure to meet its green building aspirations. Outside of the regulatory requirements, lawsuits may also occur between the participants of a project if the finished structure fails to attain a third party certification. Given the need by project participants to address the risks …
What’S Good In Theory May Be Flawed In Practice: Potential Legal Consequences Of Poor Implementation Of A Theoretical Sample, A. Lynn Phillips, G. Michael Phillips, Melanie Stallings Williams
What’S Good In Theory May Be Flawed In Practice: Potential Legal Consequences Of Poor Implementation Of A Theoretical Sample, A. Lynn Phillips, G. Michael Phillips, Melanie Stallings Williams
UC Law Business Journal
This article discusses the problems with the use of statistical sampling in litigation. Sample-based research is increasingly used in a diverse array of cases including products liability, antitrust, intellectual property, and criminal law. Sample-based research provides objective evidence upon which decisions, damages, and liability may rest. Despite its importance, however, statistical evidence is often misused and misunderstood by attorneys unfamiliar with the underlying form of analysis. This article explores common errors when using litigative samples, comments upon best practices for the use in law of sample-based research, and demonstrates the importance of sound statistical sampling and data collection in a …
The Jobs Act: Unintended Consequences Of The “Facebook Bill”, Tyler Adam
The Jobs Act: Unintended Consequences Of The “Facebook Bill”, Tyler Adam
UC Law Business Journal
The Jumpstart Our Business Startups Act (“JOBS Act”), in part, amended § 12(g) of the Securities Exchange Act of 1934. Originally enacted to impose mandatory disclosure requirements on non-reporting companies with a significant volume of trading, § 12(g) became dysfunctional due to changes in the market landscape. The JOBS Act amended § 12(g), first, by raising the shareholders of record threshold, and second, by excluding from the threshold number persons who received securities pursuant to certain employee compensation plans. This note argues that the JOBS Act’s retooling of § 12(g) fails to adequately resolve fundamental problems with the rule. Specifically, …
The Case Against Statutory Menus In Corporate Law, Daniel M. Häusermann
The Case Against Statutory Menus In Corporate Law, Daniel M. Häusermann
UC Law Business Journal
The author challenges the view among corporate law scholars that state legislatures should enact menus of predefined statutory rules from which corporations may select the governance terms of their choice. The private sector has produced menus of contract terms, such as standard form contracts and model documents, long before the idea of statutory menus became fashionable. There is no evidence that the market for private menus has failed, and legislatures are unlikely to be efficient menu producers. Advocates of statutory menus have suggested a number of rationales, most notably considerations based on transaction costs, network and learning effects, bounded attention, …
Fair Copyright Litigation: The Reverse Class Action Lawsuit, Brian Noh
Fair Copyright Litigation: The Reverse Class Action Lawsuit, Brian Noh
UC Law Business Journal
By some estimates, more than 40 billion songs were downloaded illegally in 2008. In recent years, some copyright holders seeking to curtail copyright infringement have filed thousands of claims against individual end-users and peer-to-peer network operators. The resulting scenario, in some instances, has required plaintiffs to prepare settlement strategies against thousands of individual defendants who are often ill equipped to deal with such suits. This note addresses the inability of the copyright law regime to resolve such scenario, one of the growing problems of the information age. Specifically, the author proposes that the solution to these problems is found in …
Webcaster Ii: A Case Study Of Business To Business Rate Setting By Formal Rulemaking, Andrew D. Stephenson
Webcaster Ii: A Case Study Of Business To Business Rate Setting By Formal Rulemaking, Andrew D. Stephenson
UC Law Business Journal
This note argues that The Copyright Royalty and Distribution Reform Act of 2004 is unsuccessful at achieving its goal of an effective administrative system for determining copyright royalty rates between the private parties that make up copyright owners and copyright users. To prove this, the note analyzes the Copyright Royalty Board's rate-setting in the proceeding, coined Webcaster II, announced February 16, 2005, the final rule and order determined on May 1, 2007, and the subsequent decision of the D.C. Circuit Court of Appeals issued on August 7, 2009.
Paying For Daniel Webster: Critiquing The Contract Model Of Advancement Of Legal Fees In Criminal Proceedings, Regina Robson
Paying For Daniel Webster: Critiquing The Contract Model Of Advancement Of Legal Fees In Criminal Proceedings, Regina Robson
UC Law Business Journal
This article examines the contract paradigm used to structure the advancement of legal fees to employees facing criminal investigation. It posits that the current contract model does little to advance the traditional goals of advancement and prevents consideration of the legitimate purpose of advancement: to support fair and efficient prosecution of white-collar crimes. The article proposes adoption of a duty paradigm as an alternative to the contract analysis of advancement. It argues that the use of a duty model will allow for a reevaluation of the purpose of advancement in whitecollar criminal proceedings and will encourage conscious consideration of legitimate …
Can The Rich Fend For Themselves?: Inconsistent Treatment Of Wealthy Investors Under The Private Fund Investment Advisers Registration Act Of 2010, Vijay Sekhon
UC Law Business Journal
In this comment, the author analyzes the inconsistent regulation of wealthy investors under the federal securities laws in light of the passage of the Private Fund Investment Advisers Registration Act of 2010. After summarizing the exemptions in the federal securities laws for wealthy investors and providing an overview of private equity and hedge funds, the author summarizes the regulation of private equity and hedge funds under the Private Fund Registration Act of 2010 and analyzes this regulation in light of the exemptions in the federal securities laws for wealthy investors. The author concludes with policy recommendations to eliminate the inconsistent …
Towards A Stakeholder-Shareholder Theory Of Corporate Governance: A Comparative Analysis, Katharine V. Jackson
Towards A Stakeholder-Shareholder Theory Of Corporate Governance: A Comparative Analysis, Katharine V. Jackson
UC Law Business Journal
This article sets forth an argument as to why the empowerment of stakeholder investors presents the only currently viable means for stakeholders to influence the behavior of the American public corporation. The article explores the history of corporations in America, Germany, and the United Kingdom and analyzes the disparate theories of corporate governance between the countries. Through this analysis, it will become clear that: (1) of the various interests having control over corporate decision-making, shareholders can best accommodate stakeholder interests; (2) stakeholder interests can be represented in corporate management and decisionmaking; and (3) the empowerment of stakeholder-shareholders can reform corporate …
Creditor Claims In Arbitration And In Court, Christopher R. Drahozal, Samantha Zyontz
Creditor Claims In Arbitration And In Court, Christopher R. Drahozal, Samantha Zyontz
UC Law Business Journal
This article compares debt collection cases brought by business claimants in arbitration-both individual AAA debt collection arbitrations and cases brought under a program of debt collection arbitrations administered by the AAA-to debt collection cases brought in court. This research adds new information to the policy debate over consumer arbitration. The differing win rates for business claimants and consumer claimants appear to result from two factors, neither of which provides evidence of bias in favor of business claimants. First, the types of claims businesses bring in arbitration tend to differ from the types of claims consumers bring. Second, business claims are …
Protecting Title In Continental Europe And The United States - Restriction Of A Market, Peter Soskin
Protecting Title In Continental Europe And The United States - Restriction Of A Market, Peter Soskin
UC Law Business Journal
Out of the many issues facing homebuyers, arguably, the most important is ensuring that title to their property is free and clear of encumbrances. The buyer must follow prescribed protocols in order to ensure and protect ownership rights over property and avoid later claims. This note will compare title protection procedures and costs for residential real estate in United States and Continental Europe. The concludes by explaining how the different procedures for ensuring transfer of good title, or at least financial protection from third party claims, are the result of each region's unique historical development.
Implementation Of China's 2007 Open Government Information Regulation, Nolan R. Shaw
Implementation Of China's 2007 Open Government Information Regulation, Nolan R. Shaw
UC Law Business Journal
This note reviews the implementation of China's 2007 Open Government Information Regulation both in and outside the courts. Increased information about the workings of government promotes fairness, improved government work, civic participation, and faith in government. This note reviews the unsurprising hiccoughs in the initial implementation of the OGI Regulation, but also notes that most government offices are making positive efforts to comply with the OGI Regulation. The note concludes that the law is an important step in China's move towards greater transparency, but needs broader judicial application to be effective.
The Fabricated Unwind Doctrine: The True Meaning Of Penn V. Robertson, John Prebble, Chye-Ching Huang
The Fabricated Unwind Doctrine: The True Meaning Of Penn V. Robertson, John Prebble, Chye-Ching Huang
UC Law Business Journal
The Tax Unwind Doctrine allows taxpayers, who are parties to a prior taxable transaction, to effectively "undo" the transaction and return to the status quo as if the transaction never occurred. This article finds that Penn v. Robertson is not authority for the unwind doctrine, contrary to the routine assertions of the Internal Revenue Service, practitioners, taxpayers, and legal academics. This article shows that the unwind doctrine, and the large structure of tax practice built upon it, has no foundation in case law. The article considers the practical significance of the misunderstanding of Penn v. Robertson in Revenue Ruling 80-85 …
Sunlight On Iran: How Reductive Standards Of Materiality Excuse Incomplete Disclosure Under The Securities Laws, Amy Deen Westbrook
Sunlight On Iran: How Reductive Standards Of Materiality Excuse Incomplete Disclosure Under The Securities Laws, Amy Deen Westbrook
UC Law Business Journal
U.S. federal securities law protects investors by requiring companies to disclose information that is "material," information that would be significant to a reasonable person making an investment decision. This article examines the doctrine of materiality as it is currently being used by reporting companies to avoid disclosure of activities in Iran. The Securities and Exchange Commission's reductive standard relies on notions of informational efficiency made implausible after the financial crisis, undercuts crucial U.S. foreign policy, and fails to protect investors. Consequently, this article argues that the Securities and Exchange Commission should use a broader understanding of materiality.
Why Can't We Be Friends?: Why California Needs A Lifestyle Discrimination Statute To Protect Employees From Employment Actions Based On Their Off-Duty Behavior, Jean M. Roche
UC Law Business Journal
This note explores the employment implications that social networking has on private employees and discusses the need for a lifestyle discrimination statute in California. The note begins with an overview of the increasing use of social networking, both within the employment context as well as within society as a whole. The note then analyzes current privacy protections under federal and California law and contrasts those protections with lifestyle discrimination statutes adopted in Colorado and New York. Ultimately, the note concludes that California should adopt a statute that would provide protection to employees who are terminated for off-duty, off-site behaviors which …
An Unstoppable Force: The Offshore World In A Modern Global Economy, Michael J. Burns, James Mcconvill
An Unstoppable Force: The Offshore World In A Modern Global Economy, Michael J. Burns, James Mcconvill
UC Law Business Journal
Offshore financial centres ("OFCs") are often labelled "tax havens" due to a misconception that they only serve to avoid tax liability. This comment focuses on the many other practical reasons for using OFCs in international business. Reducing tax liability is just one of many reasons why structures utilise products from OFCs. The authors argue that OFCs are not simply "tax havens," but are a positive, unstoppable force in their own right.
Access To United States Courts By Purchasers Of Foreign Listed Securities In The Aftermath Of Morrison V. National Australia Bank Ltd., Roger W. Kirby
Access To United States Courts By Purchasers Of Foreign Listed Securities In The Aftermath Of Morrison V. National Australia Bank Ltd., Roger W. Kirby
UC Law Business Journal
This article evaluates and critiques the Morrison decision, which precluded access to United States federal courts for purchasers of securities listed on foreign exchanges bringing claims arising under section 10(b) of the Securities Exchange Act of 1934. The article also identifies alternative methods by which those purchasers may pursue claims for securities related fraud in United States courts.
Litigation And Recoupment Of Executive Compensation, Stephanie L. Soondar, Allen Major, Candace Hines
Litigation And Recoupment Of Executive Compensation, Stephanie L. Soondar, Allen Major, Candace Hines
UC Law Business Journal
Merrill Lynch suffered fourth quarter losses of $9.8 billion dollars in 2008. Simultaneous to its $50 billion federally aided acquisition by Bank of America, Merrill was given the green light by Bank of America to pay as much as $5.6 billion dollars in incentive compensation. The legal fallout regarding the losses and the bonuses has been dramatic by any standard. As a separate drama, Troubled Asset Relief Program Special Master Kenneth Feinberg has been a constant presence in the media throughout 2009, ruling on compensation proposals at companies that received federal financing. Contemporaneously, the legal and business communities are curiously …
The 1996 Arbitration And Conciliation Act: A Step Toward Improving Arbitration In India, Harpreet Kaur
The 1996 Arbitration And Conciliation Act: A Step Toward Improving Arbitration In India, Harpreet Kaur
UC Law Business Journal
This paper evaluates India's 1996 Arbitration and Conciliation Act and makes three points. First, it demonstrates that the Act improved the arbitration process since judicial intervention only occurs when necessary to police the process and to resolve and interpret ambiguities about Parliament's intent. Second, in spite of being a substantial improvement, the process can be even more effective in expediting the process with a few revisions. Arbitration in India can further improve if the arbitral tribunal had a more active role in dispute resolution. Finally, revising the act to only allow institutional arbitration is crucial for parties and attorneys to …
The Sound Of Silence: The Continuing Legal Debate Over Class Action Rescission Under Tila, Jo Carrillo, Paul Kofoed
The Sound Of Silence: The Continuing Legal Debate Over Class Action Rescission Under Tila, Jo Carrillo, Paul Kofoed
UC Law Business Journal
This paper analyzes federal law on the issue of whether consumers of mortgage products can sue as a class to rescind a mortgage loan under the Truth in Lending Act. Embedded in this question are deeper economic issues about the cost and availability of credit in the United States, and about who should bear the risk of faulty mortgage disclosures. The Truth in Lending Act governs these matters as an existing statutory scheme that provides pre-bankruptcy and pre-default remedies to consumers of credit.
A Crumbling Pyramid: How The Evolving Jurisprudence Defining Employee Under The Adea Threatens The Basic Structure Of The Modern Large Law Firm, Jessica Fink
UC Law Business Journal
Under the Age Discrimination in Employment Act, as well as other federal anti-discrimination laws, only "employees" as defined by the statute are permitted to sue. In recent years, the U.S. Supreme Court and lower courts have provided guidance regarding when partners in large law firms might be deemed "employees" protected by these laws. What has emerged from the courts' decisions in these cases is a test that places significant emphasis on the amount of power and control that a partner has within a firm: Partners deemed to lack a sufficient amount of power and control within their firms may be …
Should I Stay Or Should I Go - Covenants Not To Compete In A Down Economy: A Proposal For Better Advocacy And Better Judicial Opinions, Kate O'Neill
UC Law Business Journal
This article is an effort to think about covenants not to compete from a theoretical and practical standpoint. Employee covenants not to compete generate a lot of legal disputes perhaps, in part, because they often bite when an employment relationship is already on the rocks and then they extend their restraints out past the time of any productive exchange between the parties. Employee covenants not to compete also generate scores of academic articles because there are always new cases to write about and because covenants dwell on a fault line that runs between freedom of contract and substantive control over …
Repeat Player Vs. One-Shotter: Is Victory All That Obvious, Bahaar Hamzehzadeh
Repeat Player Vs. One-Shotter: Is Victory All That Obvious, Bahaar Hamzehzadeh
UC Law Business Journal
This study tests Marc Galanter's theory in his work entitled Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change. In his article, Galanter argues that classes of litigants with the greatest resources and the lowest relative risk in litigation have the highest rates of success in court. Galanter explains his theory by categorizing litigants as either repeat players or oneshotters. Repeat players consist of litigants who generally have the most resources and the lowest relative risk, and one-shotters consist of litigants who generally have the least resources and the greatest relative risk. To test his theory, …
The Governance Of Contemporary Sovereign Wealth Funds, Yvonne C. L. Lee
The Governance Of Contemporary Sovereign Wealth Funds, Yvonne C. L. Lee
UC Law Business Journal
Recent contemporary sovereign wealth funds developments, viewed against the historical backdrop of international law and practice, particularly foreign investment law and practice, underscore the inter-action between economics, law and politics. This article first introduces the issues that have emerged as a result of sovereign wealth funds contemporary investments and observes how sovereign wealth funds and recipient countries have reacted to these developments. It proposes a model of sovereign wealth fund governance based on consultation, cooperation and coordination. This model draws on the experience of current deliberative fora such as the G20 summits and the International Working Group of Sovereign Wealth …
Every Rose Has Its Thorn: A New Approach To Deaccession, Andrew W. Eklund
Every Rose Has Its Thorn: A New Approach To Deaccession, Andrew W. Eklund
UC Law Business Journal
In January 2009, Brandeis University announced that it planned to sell off the entire art collection of the Rose Art Museum. The purpose of this Note is to compare the situation at Brandeis against three previously-suggested methods of dealing with "deaccession," the sale of artwork by museums, and to suggest a fourth, hybrid approach to deaccession. The approach takes elements of the other models, and based on the American Association of Museum's Code of Ethics for Museums, proposes a new standard. Part I gives an overview of the American Association of Museum's Code of Ethics for Museums and a brief …
Lights, Camera, Sanction - Whether A Proposed Anti-Paparazzi Ordinance Would Limit Investigative Journalism In The News Business, Shelly Rosenfeld
Lights, Camera, Sanction - Whether A Proposed Anti-Paparazzi Ordinance Would Limit Investigative Journalism In The News Business, Shelly Rosenfeld
UC Law Business Journal
While the value of paparazzi-driven journalism is very low, it would be a detriment to the public if paparazzi regulations would potentially limit, or even have a chilling effect on valuable investigative news, merely because there were similar ways the two acquired information. Certain newsgathering torts permit one to consider the newsworthiness, and hence public interest of the stories in question in evaluating the claim. Just as a driver who runs a red light on the way to visit a sick relative in the hospital has still broken the law, if a reporter breaks the more stringent regulations imposed on …
Evolution And Effectiveness Of Independent Directors In Indian Corporate Governance, Umakanth Varottil
Evolution And Effectiveness Of Independent Directors In Indian Corporate Governance, Umakanth Varottil
UC Law Business Journal
The purpose of this Article is two-fold: (i) to identify the rationale for the emergence of independent directors by tracing their evolution in the U.S. and the U.K. where they originated; and (ii) to examine the transplantation of that concept into India with a view to evaluating the effectiveness of independent directors in that country. This Article finds that there are significant differences in the corporate ownership structures and legal systems between the countries of origin of independent directors on the one hand and India on the other. Due to the diffused shareholding structures in the U.S. and the U.K., …