Business Organizations Law Commons^™

From Institutional Misalignments To Socially Sustainable Governance: The Guiding Principles For The Implementation Of The United Nations Protect, Respect And Remedy And The Construction Of Inter-Systemic Global Governance, Larry Cata Backer

Faculty Scholarship

Once upon a time, and for a very short time, there was something that people in authority, and those who manage collective memory, considered a stable system of political and economic organization. It was grounded on a complex division of authority between states, economic entities and social collectives. Contemporary economic globalization has destabilized this traditional system. Corporations are no longer completely controlled by the states that chartered them or within complex enterprises, even by those in which they operate. Social collectives now operate to change the political cultures that affect the public policy of states and the economic behavior of …

Delaware Court Of Chancery: Change, Continuity – And Competition, John C. Coffee Jr.

Faculty Scholarship

For Delaware, it is the best of times and the worst of times. The institutional prestige of the Delaware Court of Chancery has never been higher. Under the leadership of Chancellors Allen, Chandler and Strine, the court has converted many (and possibly most) of the academics, who once tended to be skeptical of Delaware. Academics and practitioners alike have been impressed by both the depth and thoughtfulness of the court of chancery's decisions and the hardworking style of its vice chancellors (who regularly seem able to turn out lengthy decisions in days that would take many federal circuit courts months …

Facebook, The Jobs Act, And Abolishing Ipos, Adam C. Pritchard

Articles

Initial public offerings (IPOs)-the first sale of private firms' stock to the public-are a bellwether of investor sentiment. Investors must be bullish if they are putting their money into untested start-ups. IPOs are frequently cited in the business press as a key barometer of the health of financial markets. Politicians, too, see a steady flow of IPOs as an indicator that capital is fueling the entrepreneurial initiative that sustains the growth of new businesses. Growing businesses create jobs, so Republicans and Democrats can find common ground on the importance of promoting IPOs. That bipartisan consensus was on display this spring …

The Effective Tax Rate Of The Largest Us And Eu Multinationals, Reuven S. Avi-Yonah, Yaron Lahav

Articles

The United States has the second highest statutory corporate tax rate in the Organization for Economic Co-Operation and Development (OECD) (after Japan).1 This has not always been the case. After the Tax Reform Act of 1986 lowered the U.S. rate from 46% to 34%,2 the United States had one of the lowest statutory corporate tax rates in the OECD.3 In the past twenty-five years, however, the U.S. rate has remained essentially unchanged (it was raised to 35% in 1993),4 while most other OECD countries reduced their statutory rate so that the OECD average statutory corporate tax rate is 25.1%.

The Effect Of Franchisor Bankruptcy On Executory Supply Contracts: Does The Franchisee Have A Remedy?, Matthew J. Burne

Barry Law Review

No abstract provided.

New Thinking On "Shareholder Primacy", Lynn A. Stout

Cornell Law Faculty Publications

By the beginning of the twenty-first century, many observers had come to believe that U.S. corporate law should, and does, embrace a "shareholder primacy" rule that requires corporate directors to maximize shareholder wealth as measured by share price. This Essay argues that such a view is mistaken.

As a positive matter, U.S. corporate law and practice does not require directors to maximize "shareholder value" but instead grants them a wide range of discretion, constrained only at the margin by market forces, to sacrifice shareholder wealth in order to benefit other constituencies and the firm itself. Although recent "reforms" designed to …

Answering To A Higher Authority: Sovereign-Mandated Oversight In The Board Room And The C-Suite, Thomas F. O’Neil Iii, T. Brendan Kennedy

Fordham Journal of Corporate & Financial Law

The relationship between business organizations and the sovereign agencies that regulate them is being redefined domestically and abroad. In the context of corporate enforcement proceedings, a critical challenge is how to achieve, most effectively, the timehonored public sector objectives of punishment, deterrence, financial restitution and rehabilitation. At issue are important policy considerations and at stake are the integrity and security of the commercial marketplace. The public sector increasingly must balance the pressures of limited resources against the need to ensure that corporate citizens behave not only lawfully, but ethically and responsibly. One solution that has been adopted is the imposition …

Creatively Financed Legal Education In A Marketized Environment: How Faculty Leveraged Buyouts Can Maximize Law Schools’ Stakeholder Values, David Groshoff

Fordham Journal of Corporate & Financial Law

“This [financial aid] money is not necessarily going to educate more students or to improve education. It’s a scholarship ultimately going into profits.”1

The Foreign Corrupt Practices Act: Taking A Bite Out Of Bribery In International Business Transactions, Carl Pacini

Fordham Journal of Corporate & Financial Law

Enforcement of the Foreign Corrupt Practices Act (“FCPA”) has reached an all-time high. FCPA violations can result in many significant costs, both monetary and non-monetary. FCPA compliance has become a top corporate governance issue and has triggered shareholder litigation, tax investigations, and money laundering probes. While many corporate managers, financial officers, board members, internal and external auditors, and forensic accountants are aware of the FCPA’s basic objectives and mandates, many may not do an adequate job of protecting their firms and/or clients from the dangerous consequences that can result from FCPA non-compliance. The purposes of this paper are to: (1) …

The New Section 1202 Tax-Free Business Sale: Congress Rewards Small Businesses That Survived The Great Recession, Beckett G. Cantley

Fordham Journal of Corporate & Financial Law

On September 27, 2010, President Barack Obama signed the Creating Small Business Jobs Act of 2010 (“SBJA”) that contains a temporary amendment to Internal Revenue Code (“IRC”) § 1202. The amendment permits original shareholders of eligible corporation stock to sell the stock without being taxed on the sale. The temporary amendment initially only applied to certain stock acquired after the enactment of the SBJA and before January 1, 2011, but the amendment was extended on December 17, 2010 for another year ending January 1, 2012. With the impending sunset of the 15% capital gains rate at the end of 2012, …

Partners Without Partners: The Legal Status Of Single Person Partnerships, Robert W. Hillman, Donald J. Weidner

Fordham Journal of Corporate & Financial Law

Is it possible to have a partnership consisting of one person, a partner without a partner? The question will arise when all but one of the members leaves a partnership. The Revised Uniform Partnership Act attempts to give greater stability to partnerships by narrowing the circumstances under which dissolutions occur, but it also fails to address the fundamental and important question of whether a partnership may be continued by a sole surviving partner. In this Article, we explore the issues raised by a single person partnership. In particular, we address the central issue of whether the departure of the penultimate …

The Eleventh Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center: Are Federal Judges Competent? Dilettantes In An Age Of Economic Expertise, The Honorable Jed Rakoff

Fordham Journal of Corporate & Financial Law

The title of my little talk here tonight is “Are

Federal Judges Competent?” This naturally raises the question of whether I am competent to answer that question. I put this question to myself, and, after careful consideration of both sides of the argument, concluded that I am competent to determine whether I am competent. As H. L. Mencken once said, “A judge is a law student who grades his own exams.”

Toward A Nexus Of Virtue, Ronald J. Colombo

Washington and Lee Law Review

Corporate law, like all law, should be directed toward the common good. The common good requires that corporate activity be restrained, if not actively directed, by human virtue. An analysis of the corporate enterprise suggests that those corporate actors with the greatest stake in the exercise of virtue, and best positioned to influence corporate activity via the exercise of virtuous judgment, are the corporation’s officers. Thus, one of the primary objectives of corporate law should be to promote virtue among corporate officers. Contrary to what some might assume, the promotion of virtue among corporate officers need not entail a promulgation …

Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott

Washington and Lee Law Review

No abstract provided.

Agency And The Ontology Of The Corporation, Christopher M. Bruner

Washington and Lee Law Review

No abstract provided.

Protecting Minority Shareholders In Civil And Common Law Systems: Canadian, Ukrainian And German Examples, Iushchenko Igor Sergiiovych

LLM Theses

This thesis analyses minority shareholder protection in common law and civil law systems. Principally, this is done by examining closely-held corporations created under Canadian, Ukrainian and German laws. It examines minority shareholder protection by critically analyzing voting and related rights, the right to information; withdrawal from the company, expulsion right, the dissolution of a company, derivative action and direct action. The thesis also summarizes problems in the civil law system that cannot be solved in favor of minority shareholders. In addition to the above-mentioned, it provides possible solutions to the problems of minority shareholder protection in the civil law system, …

Going Native: Incentive, Identity, And The Inherent Ethical Problem Of In-House Counsel, Pam Jenoff

West Virginia Law Review

No abstract provided.

What Were They Thinking? Insider Trading And The Scienter Requirement, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

On its face, the connection between insider trading regulation and the state of mind of the trader or tipper seems intuitive. Insider trading is a form of market abuse: taking advantage of a secret to which one is not entitled, generally in breach of some kind of fiduciary-like duty. This chapter examines both the legal doctrine and the psychology associated with this pursuit. There is much conceptual confusion in how we define unlawful insider trading—the quixotic effort to build a coherent theory of insider trading by reference to the law of fraud, rather than a more expansive market abuse standard—which …

Can An Old Dog Learn New Tricks? Applying Traditional Corporate Law Principles To New Social Enterprise Legislation, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

Seven U.S. states have recently adopted the benefit corporation or the flexible purpose corporation—two novel corporate forms intended to house social enterprises, i.e., those ventures that pursue social and environmental missions along with profits. And yet, these corporate forms are not viable or sustainable if they do not attract social entrepreneurs or social investors due to the lack of understanding and inquiry into how traditional corporate law principles will be applied to them. This article begins this necessary examination. As a first approach, this article assesses shareholder primacy and the shareholder wealth maximization norm in the context of the sale …

Alien Tort Claims And The Status Of Customary International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was …

Incorporating Litigation Perspectives To Enhance The Business Associations Course, Ann M. Scarlett

All Faculty Scholarship

This Article discusses having students in a Business Associations course think about the potential risks of a business decision, including consideration of the multiple perspectives that might produce litigation, as a method for enhancing students understanding of the new legal norms for businesses and the process for advising businesses.

The Post-Revolutionary Period In Corporate Law: Returning To The Theory Of The Firm, Matthew T. Bodie

All Faculty Scholarship

Law and economics revolutionized the study of corporate law. However, while modern finance theory and attendant empirical research continue to explore the effects of law on shareholder value, the theory of the firm literature has been underutilized. This paper, presented as part of the Berle III: Theory of the Firm Symposium at Seattle University School of Law, argues that corporate law scholars should turn their attention back to this literature and develop a deeper understanding of the corporation as firm.

The Bizarre Law & Economics Of 'Business Roundtable V. Sec', Grant M. Hayden, Matthew T. Bodie

All Faculty Scholarship

Corporations are legal entities designed to foster certain kinds of collective economic activity. The decisionmaking power within a corporation ultimately rests with a board of directors elected by shareholders. Shareholders, however, do not use anything like a conventional ballot in these elections; instead, they fill out a “proxy ballot,” delivered to them by the incumbent board. This proxy ballot lists only the incumbent board’s chosen nominees, very often the board members themselves. If a shareholder wants to run for director or propose another nominee for the board, she needs to provide all other shareholders with a separate proxy ballot — …

American Legal History Survey: Syllabus, Anders Walker

All Faculty Scholarship

This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

The Use Of Federal Law To Curb Excessive Executive Compensation: Lessons In Past Failures And Lessons For The Future, Kathryn J. Kennedy

Villanova Law Review (1956 - )

No abstract provided.

Bright-Line Rules And Inefficient Markets: The Third Circuit's 10b-5 Materiality Doctrine Is Ripe For Revision, Brian J. Boyle

Villanova Law Review (1956 - )

No abstract provided.

Terrorism Financing Indicators For Financial Institutions In The United States, Richard K. Gordon

Faculty Publications

At least since the Financial Action Task Force (FATF) first published its Forty Recommendations, financial institutions in FATF-compliant jurisdictions have been required to implement preventive measures that require FIs to identify customers, establish client profiles, monitor for unusual transactions, review those transactions to see if there was suspicion that they involved the proceeds of crime and, if so, report the transaction to the authorities in the form of a suspicious transaction report (STR). When these requirements were first established, neither financial institutions nor their supervisors/regulators had much experience as to what in a client's profile and the client's patterns of …

Regulation Llc, Raymond P. Girnys

NYLS Law Review

No abstract provided.

Turning The Lights On: An Analysis Of The Fiduciary Duty Provisions Of The New York State Public Authority Reform Act, Adam Paul Gordon

NYLS Law Review

No abstract provided.

Green Building Liability: Considering The Applicable Standards Of Care And Strategies For Establishing A Different Level By Agreement, Darren A. Prum

UC Law Business Journal

Many in the construction industry have begun adopting green building practices, leading owners to demand specialists in this area to meet sustainable building goals. In taking on these projects, the parties may overlook the standard of care for disputes concerning green building liability. No case law has definitively resolved the appropriate standard of care for such projects, but through analysis of existing common law and approved strategies for creating contractual relationships, a likely standard for court treatment begins to emerge. The article recommends particular strategies that parties to green building contracts should undertake to avoid future disputes and set an …