Business Organizations Law Commons^™

Moby-Dick As Corporate Catastrophe: Law, Ethics, And Redemption, David Yosifon

University of Cincinnati Law Review

Herman Melville’s Moby-Dick serves here as a vehicle through which to interrogate core features of American corporate law and excavate some of the deeper lessons about the human soul that lurk behind the pasteboard mask of the law’s black letter. The inquiry yields an illuminating vantage on the ethical consequences of corporate capital structure, the law of corporate purpose, the meaning of voluntarism, the ethical stakes of corporate fiduciary obligations, and the role of lawyers in preventing or facilitating corporate catastrophe. No prior familiarity with the novel or corporate law is required.

Protecting The Throne: The Third Circuit's Decision To Preserve Sovereign Immunity In Gentile V. Sec, Ryan Brady, John Reid

Villanova Law Review (1956 - )

No abstract provided.

Publicly Traded Justice, Samuel Ludington

University of Miami Business Law Review

Private prisons, like hotels, are most profitable when they are at maximum occupancy and their guests stay for longer periods of time. Because the business-model for private prisons is predicated on incarceration rates dictated by public policy, one would presume that private prison corporations expend great resources to advocating for stricter criminal laws and sentencing. This note explores the role of political lobbying and campaign contributions of private prison corporations to see if a correlative relationship exists between their advocacy and stricter crime laws. Part I of the note provides a history of private prisons in America and explores the …

Regulation Best Interest: Is The Sec Finally Choosing Main Street Over Wall Street?, Ana Marcos

University of Miami Business Law Review

No abstract provided.

Analysis Of Section 230 Under A Theory Of Premises Liability: A Focus On Herrick V.Grindr And Daniel V. Armslist, Kassandra C. Cabrera

University of Miami Business Law Review

Section 230 of the Communications Decency Act (“CDA”) has been held to give online service providers acting as interactive computer services sweeping immunity for content posted on their platforms. The intention behind the creation of Section 230 was not to immunize online service providers from all liability. Rather, Section 230 was enacted to protect online intermediaries acting as “Good Samaritans” – those who made “good faith” efforts to restrict unlawful or harmful content, but due to the breadth of the internet and advancements in technology over or under-filtered content on their platforms. This note outlines an approach for courts to …

Ftc Enforcement Authority In The Modern Era: A Commission In Crisis?, Brandon Mantilla

University of Miami Business Law Review

This note provides a brief history of the Federal Trade Commission (FTC)’s enforcement authority before analyzing the U.S. Court of Appeals for the seventh Circuit’s circuit-splitting decision in FTC v. Credit Bureau Center, LLC. As the Supreme Court prepares to tackle questions surrounding authority to seek monetary relief, I contextualize how enforcement authority has historically been derived before analyzing how the issue may be resolved. Doing so involves engaging several cases that may prove consequential in determining the outcome and outlines potential legislative solutions to the battle over restitution. Before arriving at the most likely scenarios, a view of the …

Proving Economic Loss For In-And-Out Traders In Light Of First Solar, Daniel Roy Settana Iii

University of Miami Business Law Review

Federal courts have grappled with the issue of whether or not to include in-and-out traders in federal securities class action lawsuits. One set of courts has excluded in-and-out traders on the grounds that they could not prove loss causation, while another set of courts has included in-and-out traders because of the possibility that they could prove that they had suffered a loss. In Mineworker’s Pension Scheme versus First Solar, Inc., the Ninth Circuit recently addressed what should be the correct standard for loss causation. While the Ninth Circuit’s decision resolved its own intra-circuit split, the Court’s decision widened an already …

The Occ Fintech Charter And The Bank Holding Company Act, Lauren Bomberger

University of Miami Business Law Review

The definition of a bank under the Bank Holding Company Act of 1956 (“BHCA”) has changed several times since the statute was first enacted. Congress has identified a number of underlying rationales for applying the BHCA to certain entities thus necessitating a change in the definition. Recent innovations in technology, however, have made it challenging to adapt the U.S. financial regulatory regime to these advances, particularly for the financial technology (“FinTech”) industry. The Office of the Comptroller of the Currency’s (“OCC”) FinTech charter is one example of an attempt by a U.S. financial regulator to grapple with emerging technologies in …

Good Corporate Governance Policies And Disclosure Mechanisms In Startup Companies, Yahel Kaplan

University of Miami Business Law Review

In the past decades, particularly following the collapse of huge corporation such as WorldCom and Enron due to dubious or illegal financial management, countries began gradually increasing the oversight of publicly traded companies with few jurisdictions conjuring recommended corporate governance codes (RCGC) to ensure sufficient oversight, reduce manager’s ability to loot their companies, and ensure that shareholders’ and stakeholders’ interests are monitored effectively by companies. While RCGC was intended namely for public company, several organizations called for the adoption of RCGC in startup companies. Startup companies suffer from various failures which the classic corporate laws are not equipped to address …

Lessons For Today By The Deregulation Of Yesteryear: Analyzing Modern Capital Market Deregulation With Historical Examples, Jordan J. Saddoris

University of Miami Business Law Review

Financial market regulators in the US have proposed cutting down their own rulebooks in recent years. However, when it comes to deregulating modern capital markets, the outcomes of historical alterations of similar natures should serve as lessons in what works and what doesn’t. This comment analyzes three modern-day proposals to deregulate US financial markets, using historical actions to argue for the likely efficacy of each.

With Coronavirus Ravaging The Economy, Congress Shows Highest Tax Priorities: An Exploration Of The Provisions In The Cares Act And Beyond, Paul Nylen, Brian Huels, Shane Wheeler

University of Miami Business Law Review

The virus known as SARS–CoV–21 (Coronavirus) swept over the United States in ways that no other crisis has affected modern society. While the Spanish Flu of 1918 has often been cited for its pandemic similarities to the Coronavirus, from an economic standpoint the attacks of September 11, 2001, and the Great Recession of 2008 are perhaps the Coronavirus’s best analogy for the modern economic carnage that has occurred. In those previous events, Congress responded with sweeping legislation like Dodd–Frank and the Patriot Act. With the Coronavirus, Congress responded with the CARES Act. Within the CARES Act are historical changes to …

Corporations Without Representation: The Constitutionality Of Gender Diversity Mandates, Talley Ransil

Utah Law Review

Biases and structural barriers contribute to the glacial pace at which women are represented on corporate boards. Even though companies with at least one female board of director outperform companies with no female directors, women only held 20% of board of director positions in 2019. Companies nationwide would not reach gender equality in the boardroom for decades without legally enforceable gender diversity requirements. In response, California Senator Jackson proposed SB 826—requiring California-based publicly held corporations to include at least one woman on their board of directors. However, conservative legal organizations filed lawsuits claiming California’s gender diversity mandate violates the California …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Business Associations, Stuart E. Walker

Mercer Law Review

This Article surveys some noteworthy cases involving corporations and limited liability companies decided by the Georgia Court of Appeals between June 1, 2020, and May 31, 2021.

Business Judgment Rule Or Due Diligence? How To Reduce Vicarious Liability For Spac Directors And Officers, Beau Duty

University of Arkansas at Little Rock Law Review

No abstract provided.

Roberta Karmel And The "Brooklyn School", Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this contribution, Professor Janger describes Roberta Karmel’s extraordinary contributions to the intellectual, scholarly, and institutional life of Brooklyn Law School.

Full Of Questions And Wonder: Roberta Karmel's Legacy, Alan R. Palmiter

Brooklyn Journal of Corporate, Financial & Commercial Law

Roberta Karmel has been perhaps the keenest observer and commentator on the securities industry and its regulation for the past five decades. Her observations about securities regulation—during the SEC’s precocious adolescence and into its young adulthood—have framed the academic inquiry of all of us who have written on the subject during this period. But more valuable to us than her observations have been her questions, full of wonder and penetrating insight. We securities academics, the enterprise of securities regulation, and especially market capitalism, all owe an enormous debt of gratitude to Professor Karmel.

“The Eu Challenge To The Sec”: A View From 2021, Howell E. Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

This essay offers a retrospective appreciation of Professor Roberta Karmel’s scholarship exploring the influence of securities regulation in the United States on developments in European capital markets regulation in the late 1990’s and early 2000’s. Professor Karmel’s writings document a fascinating evolution in this trans-Atlantic relationship as the Securities and Exchange Commission transitioned from the world’s dominant capital market regulator throughout most of the post-World War II era into a more collaborative posture by the end of the first decade of the Millennium. The essay concludes by suggesting that the trends that Professor Karmel chronicled in her scholarship have persisted …

Regulating Mobility Limitations In The Franchise Relationship As Dependency In The Joint Employment Doctrine, Andrew Elmore

Faculty Scholarship

Franchisors often impose exhaustive operational standards on franchisees, and enforce those standards by restricting the mobility of their franchisees and their franchisees' employees. But courts often ignore mobility limits when applying joint employer doctrine. This Article argues that courts and agencies should be more likely to find, and presume, that franchisors and their franchisees are joint employers under federal and state employment law based on proof that a franchisor restricts the mobility of franchisees or their employees. In so doing, this Article traces how the Chicago School's efficiency arguments in favor of relaxing antitrust law enforcement of vertical restraints developed …

Reexamining The Vicarious Criminal Liability Of Corporations For The Willful Crimes Of Their Employees, Evan Tuttle

Cleveland State Law Review

Corporate compliance programs in the United States have evolved substantially in the past several decades, expanding exponentially in both number and scope. Yet, our legal standard of corporate criminal liability for the acts of employees has remained largely unchanged for the past fifty years. United States v. Hilton Hotels established that a corporation can be held liable for the acts of its employee, even though the employee’s conduct may be contrary to their actual instructions or contrary to the employer’s stated policies. That holding, cited with favor by the Supreme Court, was based on a deeply flawed interpretation of precedent, …

From Loyalty To Conflict: Addressing Fiduciary Duty At The Officer Level, Usha Rodrigues

Florida Law Review

Conflicts of interest are the quintessential agency cost—the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interests. This ignorance facilitated the kind of fraud seen in Enron, WorldCom, and the options backdating scandals, and may help explain the out-sized payouts that many high-level corporate officers received even as the financial institutions they headed verged on self-destruction, Each case required not only affirmative fraudulent behavior on the part of a few, but also the tacit acceptance of …

Beyond The Public Square: Imagining Digital Democracy, Mary Anne Franks

Articles

To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic clich6 of the unregulated public square and commit to the hard work of designing for democracy.

When we say 'public square,' ... we need to ask- who or what is this public? Who owns this space, what makes it public? . . . This is the essence of democracy: the ability to question power, and the power to do so. - Tom Wilkinson

Appendix: Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

William & Mary Law Review Online

Appendix to article in William & Mary Law Review vol. 63, no. 2 (2021), "Board Gender Diversity: A Path to Achieving Substantive Equality in the United States" by Kimberly A. Houser and Jamillah Bowen Williams.

The Personification Of The Partnership, Harwell Wells

Vanderbilt Law Review

What does it mean to say a business association is a legal person? The question has shadowed the law of business organizations for at least two centuries. When we say a business is a legal person we may be claiming that the law distinguishes its assets, liabilities, and obligations from those of its owners; or that it has a “real will” and personality apart from its owners; or that it in some way can carry or assert rights generally ascribed to natural persons. This Article sheds new light on these old questions by looking at an oft-overlooked business form, the …

Assessing The Liability Exposure Of Public Joint-Stock Companies' Directors Under The Liability Rules In Saudi Arabia, Ahad Ali Alomran

Maurer Theses and Dissertations

Historically, the business environment in Saudi Arabia has been considered low risk. However, with the introduction of Vision 2030 in 2016, the socioeconomic transition and regulatory evolution witnessed in Saudi Arabia have reshaped the business environment and redefined the risk landscape faced by public companies and their boards. The increase in the market regulator’s monitoring and penalizing activities, the legislative reforms of management liability rules, the approval of securities class action, and the unprecedented rise in shareholder activities against their board of directors are recent developments that directly affect directors’ exposure to liability. Generally, operating in a legal system with …

The Use And Misuse Of Fiduciary Duties: Corporate Social Responsibility And The Standard Of Review, Jonathan R. Povilonis

William & Mary Business Law Review

This Article provides a crucial corrective to the “corporate social responsibility” debate, which concerns whether corporations have the obligation to protect or serve the interests of groups other than their shareholders, like employees or customers (often called “stakeholders”). Scholars on one side of the debate have repeatedly presumed that corporate directors’ fiduciary duties to shareholders play an important role in protecting shareholders from decisions that favor stakeholders at their expense. Scholars on the other side agree that fiduciary duties provide meaningful protection against unfavorable conduct but argue that directors should also owe fiduciary duties to stakeholders so they may be …

Regulatory Competition And State Capacity, Martin W. Sybblis

William & Mary Business Law Review

This Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to …

Unep And Marine & Environmental Law Institute, "Plastics Toolbox: Business, Human Rights, And The Environment" (Last Updated November 2021) (Dalhousie University, Schulich School Of Law), Marine And Environmental Law Institute

Human Rights-based Approaches to Plastic Pollution

The Plastics Toolbox: Business, Human Rights, and the Environment, compiles good practices and cross-cutting guidance on a human rights-based approach to plastic pollution prevention and management with a focus on capacity building of governments and businesses in the East Asian Seas region. This compilation of resources, guidance, tools and trainings was prepared by a team of researchers at Dalhousie University's Marine and Environmental Law Institute under the direction of project lead Dr Sara L Seck, with funding from the United Nations Environment Programme. The materials in the toolbox were gathered from May to August 2021 and updated in November 2021. …

Team Production Revisited, William Wilson Bratton

Articles

This Article reconsiders Margaret Blair and Lynn Stout's team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by …

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowen Williams

William & Mary Law Review

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …