Business Organizations Law Commons^™

Volkswagen's Bad Decisions & Harmful Emissions: How Poor Process Corrupted Codetermination In Germany's Dual Board Structure, Nicola Faith Sharpe

Michigan Business & Entrepreneurial Law Review

This Article directly challenges the often argued proposition that Ger-many’s two-tier board of directors is superior to America’s single-tier board structure. It argues that regardless of structure, any decision-making body that lacks effective decision-making processes is at signifcant risk of failure, scandal, and ineffectiveness. Legal scholars and policymakers have largely ignored the connection between decision-making processes and the efficacy of corporate leadership. The Article is the first to examine this underexplored relationship in the context of the German dual-board.

Volkswagen’s 2015 emissions scandal provides a vehcicle to critcally assess the relationship between Germany’s two-tiered board and an effec-tive decision-making process. …

Getting To Guilty: The Necessary Shift To Individual Accountability For Corporate Wrongdoing, Paige Wheeler

The Business, Entrepreneurship & Tax Law Review

In September of 2015, Deputy Attorney General, Sally Yates, declared that the Department of Justice would shift its focus to pursuing individual accountability for cases of corporate wrongdoing, This shift reflects a change in directives, as the Department of Justice commonly resolved cases of corporate wrongdoing through the companies themselves prior to what is now commonly known as the Yates Memorandum. The Yates Memorandum centers on the conclusion that one of the most successful ways to tackle corporate misconduct is by making sure that the individuals who are committing the wrongdoing are held accountable for their actions. The Yates Memorandum …

Solving The Corporate Inversion Phenomenon: An Exercise In Free Market Patriotism, Protectionism Through Faciliation, Brian Thompson

The Business, Entrepreneurship & Tax Law Review

The United States government grapples with the right solution to deter corporations from inverting abroad. A corporation’s decision to invert is made in the interest of its shareholders, including many who are United States citizens. However, many have called inverting corporations unpatriotic, traders, and cheaters. These labels shift the blame to an easy scapegoat. In order to quell this recent phenomenon, the United States government must move beyond rhetoric and reevaluate the cause of the exodus. Politicians have no one to blame but themselves and the outdated corporate policy they have left in place. Heavyhanded government policies to punish corporations …

La Incomprensible Vigencia De La Sección De Calificación En El Derecho Concursal Español Del Siglo Xxi, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Spanish Abstract: El sistema de etiquetado o calificación de deudores existente en el Derecho concursal español desde las Ordenanzas de Bilbao de 1737 resulta indeseable por varios motivos. En primer lugar, y desde una perspectiva ex ante, puede perjudicar el emprendimiento, la innovación, la utilización de deuda y la solicitud tempestiva del concurso. En segundo lugar, y desde una perspectiva ex post, puede perjudicar la rehabilitación económica y social de determinados deudores que, en ocasiones, han podido devenir insolventes por causas fortuitas. En tercer lugar, el sistema actual permite que posibles deudores culpables e incluso fraudulentos puedan salir impunes en …

The Corporation As Sovereign, Allison D. Garrett

Maine Law Review

In the past two hundred years, sovereignty devolved from the monarch to the people in many countries; in our lifetimes, it has devolved in several significant ways from the people to the corporation. We are witnesses to the erosion of traditional Westphalian concepts of sovereignty, where the chess game of international politics is played out by nation-states, each governing a certain geographic area and group of people. Eulogies for the nation-state often cite globalization as the cause of death. The causa mortis is characterized by the increase in the power and normative influence of supranational organizations, such as the United …

The "New" Fiduciary Standards Under The Revised Uniform Limited Liability Company Act: More Bottom Bumping From Nccusl, Rutheford B. Campbell Jr.

Maine Law Review

Between 1995 and 2001, the influential National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated iterations of uniform laws pertaining to partnerships, limited partnerships and limited liability companies. One or more of those acts have been widely adopted by state legislatures. Each of the three acts—the Uniform Partnership Act (1997) (hereinafter RUPA), the Uniform Limited Partnership Act (2001) (hereinafter ULPA (2001)), and the Uniform Limited Liability Company Act (1996) (hereinafter ULLCA) —contains identical fiduciary duty provisions. The acts all adopt the same standards for the duty of care and the duty of loyalty, and offer parties the same limited …

The Science Of Private International Law And The Directions Of Its Development, I. Rustambekov

Review of law sciences

In the article, the analysis of value and a role of the international private law, the place of science of the international private law and its entity are carried out. The author discloses the main characteristic features of development of science of the international private law in the Republic of Uzbekistan. In the conclusion, the author makes attempt to define and open the relevant directions and tendencies of development of the international private law in the country.

Actual Issues Of Improving Legislation On Commitments Causes Of Harm, Sh. Ruzinazarov, L. Achilova

Review of law sciences

In this article, the improvement of the legal regulation of the theoretical and legal bases of obligations causing of harm is analysed. In civil law, a special place is occupied by obligations causing of harm. In connection with this, in the modern civil doctrine of obligations causing of the harm, the scientist-jurists carried out general and special studies from the point of view of theoretical and practical significance. Particular attention is paid to the study of the development trend of national legislation and the problem of law enforcement practice in this sphere. Proposals, recommendations, as well as scientific and practical …

The Technology Requirements Of The First Electronic Monitoring Agreement In U.S. For Zappers, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

On August 30, 2017, a plea was entered in the case of case of State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0, and as a result the first electronic monitoring agreement of sales transactions in the US (the “Monitoring Agreement”) was legislatively imposed on a retail business.

The Monitoring Agreement was negotiated between the State of Washington Department of Revenue (the “WA DOR”) and the taxpayer over a period of several months and is comprised of two parts: the basic agreement, which covered the obligations and rights of the parties, and an appendix, which defines the scope of …

Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra

All Faculty Publications

Fiduciary obligation, under both corporate law and the common law, requires directors and officers to identify and address climate-related financial and other risks. In fulfilling their obligations to act in the best interests of the company, directors and officers must directly engage with developments in knowledge regarding physical and transition risks related to climate change and how these risks may impact their corporation. Depending on the firm’s economic activities, the risk may be minor or highly significant, but directors and officers have an obligation to make the inquiries, to devise strategies to address risks, and to have an ongoing monitoring …

Social Enterprise, Law & Legal Education, Lorne Sossin, Devon Kapoor

Osgoode Hall Law Journal

This article examines the relationship between law and social enterprise. More specifically, it explores ways in which the law and the law school can serve to refine and promote the development of social enterprise. The article begins by canvassing the existing conceptions of social enterprise to provide a basis for understanding and to identify points of access for legal intervention. At the end of this analysis, we arrive at a working definition of social enterprise: A legal entity engaged in socially responsible economic activity for the purpose of generating revenue that is to be used to advance a social mission. …

Emerging From Daimler's Shadow: Registration Statutes As A Means To General Jurisdiction Over Foreign Corporations, Nicholas D'Angelo

St. John's Law Review

(Excerpt)

This Note argues for the increased exercise of general jurisdiction based on registration statutes. Carefully drafted state statutes, explicitly stating that corporations registering to do business in a state thereby consent to general jurisdiction, not only solve the consequences of Daimler, but also fully comport with traditional values of fairness.

Part I outlines the jurisprudential history related to general jurisdiction. Section A begins with the concept of territoriality introduced in Pennoyer and the minimum contacts analysis in International Shoe, then discusses the modern doctrine in Perkins, Helicopteros, and Goodyear, culminating with Daimler. Section …

Uas Investments, Llc Order On Cross Motions For Summary Judgment, Elizabeth E. Long

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.

Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, Bruce R. Hopkins

The Catholic Lawyer

No abstract provided.

Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, James J. Mcgovern

The Catholic Lawyer

No abstract provided.

Governance Challenges Of Listed State- Owned Enterprises Around The World: National Experiences And A Framework For Reform, Curtis J. Milhaupt, Mariana Pargendler

Cornell International Law Journal

Despite predictions of their demise in the aftermath of the collapse of socialist economies in Eastern Europe, state-owned enterprises (SOEs) are very much alive in the global economy. The relevance of listed SOEs— firms subject to government ownership, but with a portion of their shares traded on public stock markets— has persisted and even increased around the world, as policymakers have encouraged the partial floating of SOE shares either as a first step toward, or as an alternative to, privatization. In this Article, we evaluate the governance challenges associated with mixed ownership of enterprise, and examine a variety of national …

China's 'Corporatization Without Privatization' And The Late 19th Century Roots Of A Stubborn Path Dependency, Nicholas Howson

Articles

This Article analyzes the contemporary program of “corporatization without privatization” in the People's Republic of China (PRC) directed at China's traditional state-owned enterprises (SOEs) through a consideration of long ago precursor enterprise establishments--starting from the last Chinese imperial dynasty's creation of “government-promoted/-supervised, merchant-financed/-operated” (guandu shangban) firms in the latter part of the nineteenth century. While analysts are tempted to see the PRC corporations with listings on international exchanges that dominate the global economy and capital markets as expressions of “convergence,” this Article argues that such firms in fact show deeply embedded aspects of path dependency unique to the Chinese context …

Uniform Commercial Acts, Samuel Williston

Dickinson Law Review (2017-Present)

No abstract provided.

Alternative Business Structures: Good For The Public, Good For The Lawyers, Jayne R. Reardon

St. Mary's Journal on Legal Malpractice & Ethics

There has been a shift in consumer behavior over the last several decades. To keep up with the transforming consumer, many professions have changed the way they do business. Yet lawyers continue to deliver services the way they have since the founding of our country. Bar associations and legal ethicists have long debated the idea of allowing lawyers to practice in “alternative business structures,” where lawyers and nonlawyers can co-own and co-manage a business to deliver legal services. This Article argues these types of businesses inhibit lawyers’ ability to provide better legal services to the public and that the legal …

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …

Regulating Business Innovation As Policy Disruption: From The Model T To Airbnb, Eric Biber, Sarah E. Light, J.B. Ruhl, James Salzman

Vanderbilt Law Review

Many scholars have invoked the term "disruptive innovation" when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy are surely important, but we argue that recent scholarship focusing on the immediacy and novelty of the platform economy has been ahistorical, and has therefore missed the bigger picture about how to regulate it. History is full of technological and management advances that fundamentally disrupted business models for a brief period of time. When business innovation upends a preexisting business model in a …

Reviving Reliance, Ann M. Lipton

Fordham Law Review

This Article explores the misalignment between the disclosure requirements of the federal securities laws and the private causes of action available to investors to enforce those requirements. Historically, federally mandated disclosures were designed to allow investors to set an appropriate price for publicly traded securities. Today’s disclosures, however, also enable stockholders to participate in corporate governance and act as a check on managerial misbehavior. To enforce these requirements, investors’ chief option is a claim under the general antifraud statute, section 10(b) of the Securities Exchange Act of 1934. But courts are deeply suspicious of investors’ attempts to use the Act …

Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Distributed Governance, Carla L. Reyes, Nizan Geslevich Packin, Ben Edwards

William & Mary Law Review Online

Distributed ledger technology disrupts traditional business organizations by introducing new business entities without the directors and officers of traditional corporate entities. Although these emerging entities offer intriguing possibilities, distributed entities may suffer significant collective action problems and expose investors to catastrophic regulatory and governance risks. Our Article examines key considerations for stakeholders and argues that distributed entities must be carefully structured to function effectively. This Article breaks new ground by critically examining distributed entities. We argue that a distributed model is most appropriate when distributed ledger technology solves a unique corporate governance problem. We caution against ignoring the lessons painstakingly …

Newsroom: From Farm To School 09-21-2017, Jill Rodrigues, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Lewis V. Clarke, Summer L. Carmack

Public Land & Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …

Could The Pay Ratio Disclosure Backfire? Examining The Effects Of The Sec's Pay Ratio Disclosure Rule, Jillian Loh

Texas A&M Law Review

At the signing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), President Barack Obama asserted that, “We all win when investors around the world have confidence in our markets. We all win when shareholders have more power and more information. . . . And we all win when folks are rewarded based on how well they perform, not how well they evade accountability.” After the financial crisis in 2008, the Obama Administration recognized the need to reconstruct the existing American financial regulatory system to ensure that a financial meltdown would never happen again. It …

In Re Dish Network Derivation Litig., 133 Nev. Adv. Op. 61 (Sept. 14, 2017), Joseph K. Fabbi

Nevada Supreme Court Summaries

The Court determined that the Auerbach test should be applied when a Special Litigation Committee (SLC) files a motion to defer a derivative claim. A derivative claim is dismissible if the SLC was independent and conducted a good faith investigation when it concluded litigation would not be in the company’s best interest.