Business Organizations Law Commons^™

Beyond Unconscionability: Class Action Waivers And Mandatory Arbitration Agreements, J. Maria Glover

Vanderbilt Law Review

We live in an age of convenience. From financial transactions to electronic correspondence, we frequently deal with large corporations that provide services in our daily lives. One of the prices we pay for the convenience of these transactions, however, is that our commercial relationships increasingly are based on standard form contracts written by large corporations. While these standard form contracts are necessary to an economically efficient society, the growing use of mandatory arbitration provisions and clauses that prohibit class actions in these contracts raises the spectre of corporate abuse.

This reality of modern commercial life brings into conflict two particular …

Corporate Governance And Rational Energy Choices, Steven Ferrey

William & Mary Environmental Law and Policy Review

No abstract provided.

A New Direction For Shareholder Environmental Activism: The Aftermath Of Caremark, Geoffrey C. Rapp

William & Mary Environmental Law and Policy Review

No abstract provided.

Corporate Investigations, Attorney-Client Privilege, And Selective Waiver: Is A Half-Privilege Worth Having At All?, Colin P. Marks

Faculty Works

As the title suggests, this article is an analysis of the selective waiver doctrine, which allows a party to disclose materials protected by the attorney-client and work product privileges to the government during investigations without waiving the privilege as to third-party litigants. Specifically, the article analyzes the development of the selective waiver doctrine and why recent polices adopted by governmental agencies, specifically the Department of Justice and SEC, have made this doctrine a forefront of conversation amongst litigators, legislators and academics. But is a blanket adoption of the selective waiver doctrine wise?

Courts have taken a variety of approaches to …

Introduction To The Symposium: Corporate Governance And Environmental Best Practices, Jayne W. Barnard

William & Mary Environmental Law and Policy Review

No abstract provided.

Conscripting Attorneys To Battle Corporate Fraud Without Shields Or Armor? Reconsidering Retaliatory Discharge In Light Of Sarbanes-Oxley, Kim T. Vu

Michigan Law Review

This Note advocates that federal courts should allow attorneys to bring retaliatory discharge claims under SOX. Traditional rationales prohibiting the claims of retaliatory discharge by attorneys do not apply in the context of Sarbanes-Oxley. This Note contends that the Department of Labor and the federal courts should interpret the whistleblower provisions of § 806 as protecting attorneys who report under § 307. Assuring reporting attorneys that they have protection from retaliation will encourage them to whistleblow and thereby advance SOX's policy goal of ferreting out corporate fraud. Part I explores the legal landscape of retaliatory discharge suits by attorneys. This …

Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett

Scholarly Works

An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely held corporation plagued by intershareholder conflict. This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital (VC) finance, this Article demonstrates how this dichotomy obscures how all firms -- public and private -- often face the same …

Fiction, Form And Substance In Subchapter K -- Approaching Partnership Mergers, Divisions And Incorporations, Heather M. Field

ExpressO

The tax consequences of substantively equivalent partnership mergers, divisions and incorporations can vary dramatically depending on the form of the transaction. This disparate treatment arises because the tax analysis of these partnership transactions inconsistently adheres to the “form” of the transaction and limits the use of legal “fictions”. This part-form, part-fiction approach distorts parties’ incentives about whether and how to undertake such transactions and can make the transactions less efficient, all without materially advancing other policy goals. This result is exacerbated by non-tax business exigencies that restrict parties’ abilities to implement certain transaction forms and by the increase in “formless” …

Shareholder (And Director) Fiduciary Duties And Shareholder Activism, Paula J. Dalley

ExpressO

Recent attention to shareholder activism in the business and academic press has ignored the legal ramifications of that phenomenon. Under current law, shareholders are neither principals nor agents of the corporation, the board of directors, or the other shareholders; those seeking to increase shareholder power must confront this legal reality. Specifically, proposals for increased shareholder power on the one hand and recent investor attempts to gain actual management control on the other must both be considered in light of the shareholders’ lack of fiduciary responsibility. Moreover, all directors, including those representing “activist” shareholders, are obligated to exercise independent judgment about …

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.

Re-Thinking Securities Regulation: A Comparative Study Of Asx, Nyse, And Sgx , Benedict Sheehy

ExpressO

This article approaches the issue of securities regulation starting with an examination of the nature and role of markets and financial markets. It next outlines the various arguments for and against regulation, and then looks at approaches taken by markets and their regulators. The approaches are government regulation, self-regulation and co-regulation, and the structural changes via demutualization and corporate governance. With this background, it turns to examine how these approaches have played out in the markets themselves. The article surveys the regulatory aspects of the ASX, NYSE and the SGX, and reviews the regulatory and financial performance of the markets. …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s …

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by …

Still 'Ain't No Glory In Pain': How The Telecommunications Act Of 1996 And Other 1990s Deregulation Faciliated The Market Crash Of 2002, André Douglas Pond Cummings

Law Faculty Scholarship

This article investigates the various flaws inherent in two short-sighted Congressional enactments, The Telecommunications Act of 1996 and the Commodities Futures Modernization Act of 2000 (CFMA). The article concludes that the Telecommunications Act and the CFMA, together with various 1990s deregulation legislation, led in large part to the collapse of the U.S. capital markets in 2002.

The article continues a comprehensive review undertaken in the recently published Ain't No Glory In Pain: How the 1994 Republican Revolution, the Private Securities Litigation Reform Act of 1995 and Certain 1990s Deregulation Contributed to the Collapse of the Unites States' Capital Markets, 83 …

Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations, Asmara Tekle Johnson

ExpressO

In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court’s decision in …

The Group Dynamics Theory Of Executive Compensation, Michael B. Dorff

ExpressO

The corporate governance debate has focused recently on executive compensation. While defenders of the status quo assert that CEO compensation – and corporate governance generally -- is efficient, critics contend that boards have been captured by powerful CEOs who demand excessive pay unconditioned on their performance. Both sides argue that the evidence garnered from CEO compensation justifies their positions on legal reform of corporate governance as a whole. Defenders of the status quo argue that the system works well as is, as demonstrated by the enormous success of U.S. corporations. Critics concerned about managerial power propose reforms that will increase …

Digital Consumption Tax (D-Ct), Richard Thompson Ainsworth

Faculty Scholarship

Modern technology is dramatically changing the way consumption taxes are collected, but it is also changing the way policymakers assess the operation and impact of these taxes. Whether the design is a standard credit-invoice value added tax (VAT) of European design, or a retail sales tax (RST) of American design, or the credit subtraction VAT without invoices type of consumption tax (CT) of Japanese design, technology is having a profound impact.

Government certified transaction software is in place in the United States. The Streamlined Sales Tax offers taxpayers in 18 states the option of having their retail sales tax determined …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Piercing The Corporate Veil In West Virginia: The Extension Of Laya To All Sophisticated Commercial Entities, J. Jarrod Jordan

West Virginia Law Review

No abstract provided.

Comment On Brian R. Cheffins, Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Lynne L. Dallas

Washington and Lee Law Review

No abstract provided.

Dividends As A Substitute For Corporate Law: The Separation Of Ownership And Control In The United Kingdom, Brian R. Cheffins

Washington and Lee Law Review

No abstract provided.

The Seductive Comparison Of Shareholder And Civic Democracy, Usha Rodrigues

Washington and Lee Law Review

No abstract provided.

Shareholder Democracy And The Economic Purpose Of The Corporation, Donald J. Smythe

Washington and Lee Law Review

No abstract provided.

Personification In Three Legal Cultures: The Case Of The Conception Of The Corporate Unit, Gregory A. Mark

Washington and Lee Law Review

No abstract provided.

The Transplantation Of The Legal Discourse On Corporate Personality Theories: From German Codification To British Political Pluralism And American Big Business, Ron Harris

Washington and Lee Law Review

No abstract provided.

The Relevance Of Corporate Theory To Corporate And Economic Development: Comment On The Transplantation Of The Legal Discourse On Corporate Personality Theories, Lawrence E. Mitchell

Washington and Lee Law Review

No abstract provided.

Comment: Corporate Governance And The "D-Word", Thomas W. Joo

Washington and Lee Law Review

No abstract provided.

Shareholders As Proxies: The Contours Of Shareholder Democracy, Dalia Tsuk Mitchell

Washington and Lee Law Review

No abstract provided.

The Separation Of Ownership And Control In Modem Corporations: Shareholder Democracy Or Shareholder Republic? A Commentary On Dalia Tsuk Mitchell's Shareholders As Proxies. The Contours Of Shareholder Democracy, Lucas E. Morel

Washington and Lee Law Review

No abstract provided.