Business Organizations Law Commons^™

The Case For Accountability & Transparency: How Corporate Asset Forfeiture Creates A Conflict Of Interest, Tiffany J. Klinger

Fordham Journal of Corporate & Financial Law

Asset forfeiture is a tool used by law enforcement to seize property or profits related to criminal activity. Due to the public's growing distain of asset forfeiture, congressional and state reform has attempted to curtail the use of civil asset forfeiture over the past twenty years. However, little attention has been given where asset forfeiture is used against corporations. This Note sheds light as to how asset forfeiture is used against the organizational defendant and makes the following observations: First, asset forfeiture is a powerful tool in corporate criminal proceedings; however, forfeiture lacks the procedural restraints that are placed on …

Providing For Victim Redress Within The Legislative Scheme For Tackling Foreign Corruption, Joanna Harrington

Dalhousie Law Journal

This article examines the prospects for victim redress for the corporate commission of foreign corruption, using Canada as a case study. Such cases are typically addressed by negotiated settlements, with Canada’s new “remediation agreement” regime embracing an intention to provide “reparations for harm done to victims or to the community.” Further work, however, needs to be done on defining who is a victim, with the SNC-Lavalin affair having focussed much attention on employees, pensioners and shareholders, with barely a mention of the overseas victims of the alleged crimes. To this end, the article examines comparable efforts undertaken in England to …

Diversity And The Board Of Directors: A Comparative Perspective, Darren Rosenblum

Faculty Publications

(Excerpt)

In 2003, Norwegian feminists, frustrated by intractably stark sex inequality in the private sector, initiated sex quotas to mandate inclusion of women on corporate boards. In the short span of our nascent century, this legislation established that diversity – sex diversity in particular – is a mark of legitimate corporate governance. When Norway adopted a corporate board quota in 2003, it appeared to be an extreme example of Scandinavian overreach. Within eight years, France had followed suit and other leading countries copied the regulation in some form. Now six of the top ten economies mandate sex diversity on corporate …

Business Associations, Stuart E. Walker

Mercer Law Review

This Article surveys a handful of noteworthy cases involving corporations and limited liability companies decided by the Georgia Supreme Court and the Georgia Court of Appeals between June 1, 2018 and May 31, 2019.

From Corporate Responsibility To Corporate Accountability, Min Yan, Daoning Zhang

UC Law Business Journal

Corporate responsibility, or CSR, which has become a heated topic over recent decades, concerns a broader range of interests than shareholders by focusing on companies’ voluntary approaches to engage with social/environmental issues. In contrast, corporate accountability is more about a confrontational or enforceable framework of influencing corporate behavior through clear means for sanctioning failure. On the ground that voluntary CSR is inadequate to deliver the necessary change and to secure more socially responsible activities, this Article proffers a framework for corporate accountability based on existing institutional systems. Different from the neoclassical version of corporate accountability, this Article argues stakeholders, other …

Human Rights And The Impact Assessment Act: Proponents And Consultants As Duty Bearers, Adebayo Majekolagbe, Sara L. Seck, Penelope Simons

Responsible Business Conduct and Impact Assessment Law

This chapter is the pre-publication version of a contribution to a book on the new federal Impact Assessment Act (IAA), and builds upon the research conducted for the SSHRC KSG on responsible business conduct and the IAA. We highlight the role of proponents and their consultants as human rights duty bearers and recommend the integration of human rights approaches into impact assessment processes under the IAA.

Privately Ordered Fiduciaries, Megan Wischmeier Shaner

Faculty Articles

There exists a disconnect in corporate law between the outsized role officers play in managing the corporation and the scant attention these actors receive in statutes and case law. Out of the doctrinal void, a proposal by the ABA’s Officer Liability Task Force has emerged. Seizing on the private ordering movement in corporate law, the Task Force proposes contractual means for addressing the uncertainty surrounding the duties of officers. The Task Force’s proposal extends private ordering in a radical new direction, taking aim at bedrock principles of corporate law – fiduciary duties and the business judgment rule. This article takes …

The Corporate Chameleon, Megan Wischmeier Shaner

Faculty Articles

Who is an “officer” of a corporation? That is the straightforward, yet complex, question this Article seeks to examine and answer. Corporate law contemplates three distinct actors involved in the governance of the corporation–directors, stockholders, and officers. State corporate statutes make clear the identities of the first two actors, yet “officer” is left relatively undefined. The definitional uncertainty surrounding “officer” results in individuals moving in and out of officer status in a chameleon-like fashion. The variable nature of “officer” in corporate law is problematic because officer status carries with it distinct legal consequences. Linguistic precision is vital to the development, …

Family Limited Partnerships: Are They Still A Viable Weapon In The Estate Planner’S Arsenal?, Matthew Van Leer-Greenberg Esq., Llm

Roger Williams University Law Review

No abstract provided.

Three Conceptions Of Corporate Crime (And One Avenue For Reform), Miriam H. Baer

Faculty Scholarship

No abstract provided.

Uniform International Tax Collection And Distribution For Global Development, A Utopian Beps Alternative, Henry Ordower

All Faculty Scholarship

Under the guise of compelling multinational enterprises (MNEs) to pay their fair share of income taxes, the OECD and other multinational agencies have introduced proposals to prevent MNEs from eroding the income tax base of developed economies by continuing to shift income artificially to low or zero tax jurisdictions. Some of the proposals have garnered substantial multinational support, including recent support from the new U.S. presidential administration for a global minimum tax. This Article reviews many of those international proposals. The proposals tend to concentrate the incremental tax revenue from the prevention of base erosion into the treasuries of the …

Global Investor-Director Survey On Climate Risk Management, Kristin Bresnahan, Jens Frankenreiter, Sophie L'Helias, Brea Hinricks, Nina Hodzic, Julian Nyarko, Sneha Pandya, Eric L. Talley

Faculty Scholarship

Changes in the global climate are having profound impacts on business operations, governance, and organizational management around the world. Boards of directors are searching for ways to account for these changes as they help guide their organizations, and investors are increasingly concerned about how these changes might impact their portfolios. This global survey, conducted by a team of researchers at the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School and experts at LeaderXXchange, seeks to understand how – if at all – institutional investors and board directors incorporate climate-related issues in their investment decision …

Corporate Control, Dual Class, And The Limits Of Judicial Review, Zohar Goshen, Assaf Hamdani

Faculty Scholarship

Companies with a dual-class structure have increasingly been involved in high-profile battles over the reallocation of control rights. Google, for instance, sought to entrench its founders’ control by recapital­izing from a dual-class into a triple-class structure. The CBS board, in contrast, attempted to dilute its controlling shareholder by distributing a voting stock dividend that would empower minority shareholders to block a merger it perceived to be harmful. These cases raise a fundamental question at the heart of corporate law: What is the proper judicial response to self-dealing claims regarding reallocations of corporate control rights?

This Article shows that the reallocation …

Schrodinger's Corporation: The Paradox Of Religious Sincerity In Heterogeneous Corporations, Catherine A. Hardee

Faculty Scholarship

Consider a corporation where one group of shareholders holds sincere religious beliefs and another group of shareholders does not share those beliefs but, for a price, will allow the religious shareholders to request a religious exemption to a neutrally applicable law on behalf of the corporation. The corporation is potentially both religiously sincere and insincere at the same time. A claim by the corporation for a religious accommodation requires the court to solve the paradox created by this duality and to declare the corporation, as a whole, either sincere or insincere in its beliefs. Although the Supreme Court and scholars …

Mission Critical: How Fiduciary Duties Of Oversight Can Aid Corporations In Managing Stakeholder Interests, Krishna P. Pathak

Upper Level Writing Requirement Research Papers

After several public tragedies, corporate missteps, and catastrophes; politicians, certain investors, and other stakeholders have called for accountability in capitalism, proactive action to alleviate climate change, and performance of social obligations from corporations. The Business Roundtable and World Economic Forum have come out with proposals that signify a paradigm shift to the stakeholder approach to capitalism. Delaware, a haven for shareholder primacy, has permissive standards that allow a corporation to engage in any lawful business activity. However, concerns about fiduciary duties, especially the implied duties of good faith, legal compliance, and oversight, have created obligations for directors to engage in …

Pushing The Envelope: Salzberg V. Sciabacucchi And Delaware's Evolving View Of The Internal Affairs Doctrine, Mark J. Loewenstein

Publications

In January, 2020, the Delaware Supreme Court handed down its decision in Salzberg v. Sciabacucchi, upholding a provision in a certificate of incorporation that designated the federal courts as the exclusive jurisdiction for the litigation of claims under the federal Securities Act of 1933. The inclusion of these provisions in Delaware charters and bylaws – often referred to as “Federal Forum Provisions” or FFPs – raised important questions as to the reach of the internal affairs doctrine. This doctrine provides that the jurisdiction of incorporation regulates the internal affairs of its corporations: the relationship among and between the corporate …

Gillis V. Miller, Anna Tichy

NYLS Law Review

No abstract provided.

Masthead

UC Law Business Journal

No abstract provided.

One Duty To All: The Fiduciary Duty Of Impartiality And Stockholders’ Conflict Of Interest, Shachar Nir

UC Law Business Journal

Delaware precedent, primarily Trados and ODN, holds that corporate boards of directors owe fiduciary duties to holders of corporation common stock and not to holders of preferred stock. This precedent, however, fails to address a broad range of complex but commonly occurring potential conflicts between and among holders of common stock and multiple classes of preferred stock.

Rarely analyzed or applied in an intra-corporate context, the fiduciary duty of impartiality allows a fiduciary to exercise discretion while having a duty to act bona fide in the best interests of the beneficiaries as a whole. Mostly derived from U.S. common law …

Policy Analysis: The Ndrc’S Reg. No. 11, China’S New Capital Control, Yumeng Xu

UC Law Business Journal

Trade disputes between the United States and China have caught momentary worldwide attention. However, because the world’s two largest economies are interlocked in various aspects, it is hard to cut these connections, despite Washington and Beijing’s constant effort to dwindle each other’s impact. As one of the major sources of foreign investment for the U.S., China has been adjusting its capital control policies for years in response to development needs and in order to address the changing investment environment in foreign countries. This Note spotlights China’s latest outbound capital control regulation, NDRC Regulation No. 11 (“Reg. No. 11”), and how …

The Janus Decision And The Future Of Private- Sector Unionism, Michelle Quach

UC Law Business Journal

In order for a union to represent a group of workers, a petition to start the election process must first be filed with the National Labor Relations Board (“NLRB”) and it must receive support from 30% of the employees. Once the NLRB determines that the 30% threshold is met, the NLRB will conduct an election to determine if a majority of employees want union representation. If the union is certified by the NLRB, through a majority vote, the union becomes the exclusive bargaining representative of the employees. That is, the union becomes the sole representative of the employees and may …

California Cannabis Regulations And The Federal Food, Drug & Cosmetic Act: A Product Liability Perspective Of Edible Cannabis, Alexis Lazzeri

UC Law Business Journal

From the passage of Proposition 215 to present day, California’s cannabis industry has transformed from access solely for medical patients to a nearly three billion dollar a year industry with legal medicinal and adult-use consumption. With this rise in accessibility, edible cannabis products are being consumed more than ever. “Edibles” are food and drink products infused with cannabis, a mix of THC (i.e., delta 9 - tetrahydrocannabinol) and CBD (i.e., cannabidiol)—with varying levels of each, depending on the desired effect. CBD is a non-intoxicating compound often used to treat physical ailments and chronic conditions, while THC delivers a euphoric high. …

Politicians As Fiduciaries: Public Law V. Private Law When Altering The Date Of An Election, Steven Cleveland

Faculty Articles

In the 2019 decision Rucho v. Common Cause, the U.S. Supreme Court concluded that federal challenges to partisan gerrymandering-a practice yielding election results that "reasonably seem unjust"-were non-justiciable. If partisan gerrymandering claims are not federally justiciable, and if that conclusion emboldens politicians, how else might incumbents manipulate election mechanics to preserve their political advantage? This Article explores one possibility that was briefly mentioned by the Rucho majority: the strategic advancement or delay of the date of a federal election. The strategic shift of election day is not simply a theoretical problem. Foreign politicians have strategically altered their election days for …

Income Taxation Of Small Business: Toward Simplicity, Neutrality And Coherence, David G. Duff

All Faculty Publications

Among the many contributions that Judith Freedman has made to tax law and policy in the United Kingdom and around the world, one of the most sustained and significant involves the regulation and taxation of small business. This article reviews Professor Freedman’s contributions to tax law and policy regarding small business, and evaluates Canadian experience with the taxation of private companies and their shareholders in light of Professor Freedman’s work. Part II summarizes Professor Freedman’s main conclusions regarding the taxation of small business, addressing both the taxation of similar economic activities conducted through different legal forms and the rationale and …

Criminal Usury And Its Impact On New York Business Transactions, Christopher Basile

Touro Law Review

No abstract provided.

Land Of The Falling "Poison Pill" Understanding Defensive Measures In Japan On Their Own Terms, Alan K. Koh, Masafumi Nakahigashi, Dan W. Puchniak

Research Collection Yong Pung How School Of Law

Embraced by United States ("U.S.") managers in the 1980s as a lifeline in a sea of hostile takeovers, the poison pill fundamentally altered the trajectory of American corporate governance. When a hostile takeover wave seemed imminent in Japan in the mid-2000s, Japanese boards appeared to embrace this American invention with equal enthusiasm. Japan's experience should have been a ringing endorsement for the utility of American corporate governance solutions in foreign jurisdictions -but it was not to be. Japan's unique interpretation of the "poison pill" that was so eagerly adopted by Japanese companies in the mid-to-late 2000s has turned out to …

We Three Kings: Disintermediating Voting At The Index Fund Giants, Caleb N. Griffin

Maryland Law Review

No abstract provided.

Global Investor-Director Survey On Climate Risk Management, Jens Frankenreiter, Kristin Bresnahan, Sophie L'Helias, Brea Hinricks, Nina Hodzic, Julian Nyarko, Sneha Pandya, Eric Talley

Scholarship@WashULaw

Changes in the global climate are having profound impacts on business operations, governance, and organizational management around the world. Boards of directors are searching for ways to account for these changes as they help guide their organizations, and investors are increasingly concerned about how these changes might impact their portfolios. This global survey, conducted by a team of researchers at the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School and experts at LeaderXXchange, seeks to understand how — if at all — institutional investors and board directors incorporate climate-related issues in their investment decision …

Venture Capital In China And India: Does Business Form Matter?, Lin Lin, Umakanth Varottil

Vanderbilt Journal of Transnational Law

This Article reevaluates the importance of business organizational forms with regard to venture capital funds by exploring two major Asian markets, China and India. Evidence suggests that the limited partnership is the leading business form among Chinese venture capital funds. On the other hand, Indian venture capital funds are predominantly organized as private noncharitable trusts. These findings challenge the orthodox view that the limited partnership is the preferred business form for venture capital funds. Instead, Indian venture capital funds have used the trust vehicle effectively and regard it as a functional equivalent to limited partnerships. This Article argues that the …

The Corporate Chameleon, Megan Wischmeier Shaner

University of Richmond Law Review

This Article seeks to address what is currently missing from corporate law—a clear way of determining “officer” status as that distinct legal role is contemplated in corporate jurisprudence. Part I discusses the three primary actors involved in the internal governance of the corporation—directors, stockholders, and officers—and how the law defines each one. While corporate law clearly contemplates officers as a distinct role, a quick comparison of the three reveals a failure to identify with any precision the bounds of “officer” status. Part II looks to other areas of the law for guidance in defining and identifying the officers of the …