Common Law Commons^™

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

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 …

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 …

Putting The Substance Back Into The Economic Substance Doctrine, Nicholas Giordano

Brooklyn Journal of Corporate, Financial & Commercial Law

The foreign tax credit, which saves U.S. taxpayers from paying both foreign and domestic income taxes on the same income, is critical to facilitating global commerce. However, as savvy taxpayers discover increasingly complicated ways to abuse the foreign tax credit regime through the structuring of business transactions, courts have become increasingly skeptical of the validity of those transactions. Using the economic substance doctrine, a common law doctrine codified in 2010 at I.R.C. § 7701(o), courts will disallow tax benefits stemming from a transaction that is not profitable absent its tax benefits, and which the taxpayer had no incentive to undertake …

Foreign Nation Judgments - If State Law Provides For The Enforceability Of Foreign Judgments, The Judgment Is Enforceable Without Determination Of Whether The Arbitration Award On Which It Is Based Is Independently Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, John W. Kindt

Georgia Journal of International & Comparative Law

No abstract provided.

The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern

Seattle University Law Review

The English East India Company was first chartered in 1600, endured until the late nineteenth century, and, in a clever act of corporate resurrection, has even recently returned as a global, upmarket retail outlet selling fine foods and commemorative coins. It has also endured in the popular imagination and culture, churning out heroes and villains alike in film, television, and video games. The script writer for a forthcoming BBC miniseries, in which the East India Company stars as the prime antagonist, even noted recently that the Company was like “the CIA, the NSA, and the biggest, baddest multinational corporation on …

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Provisions Denying A Deduction For Illegal Expenses And Expenses Of An Illegal Business Should Be Repealed, Douglas A. Kahn, Howard Bromberg

Articles

Currently, the tax law denies a deduction for business expenses that violate a federal or state law (but only if the state law is generally enforced). In addition, losses, including business losses, cannot be deducted if they arise out of an illegal activity. For example, medical expenses are denied a deduction if they are illegal. Kickbacks, bribes, and rebates given in connection with the Medicaid or Medicare program are nondeductible. Any expenses, legal or not, incurred in connection with the conduct of a business of selling a controlled substance that is prohibited by federal law (or by the law of …

A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine

Brooklyn Journal of Corporate, Financial & Commercial Law

Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that …

The Role Of The Profit Imperative In Risk Management, Christopher French

Faculty Scholarship

Risks in the world abound. Every day there is a chance that each of us could be in a car accident. Or, one of us could be the victim of a tornado, flood or earthquake. Every day someone becomes deathly ill from an insidious disease. Our properties are in constant peril—one’s house could catch fire at any time or a tree could fall on it during a storm. Any one of these events could have devastating financial consequences, and they are just a few of the many risks that impact our daily lives. One of the principal ways we manage …

A Canadian Model Of Corporate Governance, Carol Liao

All Faculty Publications

What is Canada’s actual legal model to govern its corporations? Recent landmark judicial decisions indicate Canada is shifting away from an Anglo-American definition of shareholder primacy. Yet the Canadian securities commissions have become increasingly influential in the governance sphere, and by nature are shareholder-focused. Shareholders’ rights have increased well beyond what was ever contemplated by Canadian corporate laws, and the issue of greater shareholder vs. board control has now become the topic of live debate. The future of Canada's overall model seems to rest on what will be more compelling: the constancy of the corporate statutes and trajectory of the …

The Role Of Unfair Competition In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky

Faculty Scholarship

Does the idea of “unfair competition” present the law with a viable alternative to thinking about the regulation of information and informational resources, independent of the traditional categories of the common law (e.g., property/tort) and the assumptions that these categories entail? In this chapter, we argue that, although the answer to that question is no, unfair competition nevertheless plays an important role in complementing the categories of property and torts as they apply to competitive settings. Specifically, unfair competition allows courts to both broaden and narrow the traditional notions of property and torts – especially as they apply to the …

The Supreme Court, Rule 10b-5, And The Federalization Of Corporate Law, Mark J. Loewenstein

Publications

This Article examines Supreme Court jurisprudence since 1997 under the federal securities laws in light of the Court's earlier securities law decisions and in light of its recent decisions construing the Constitution and federal statutes as they relate to the regulation of business. These post-1977 cases strongly suggest that the much-heralded new federalism philosophy of the Supreme Court is not a factor in securities law cases or in business cases generally. Indeed, the opposite seems to be the case. In this context, new federalism cases appear to be an anomaly, with the reality being that the Court is still as …

No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan

Faculty Works

No abstract provided.

Revamping Veil Piercing For All Limited Liability Entities: Forcing The Common Law Doctrine Into The Statutory Age, Rebecca J. Huss

Law Faculty Publications

No abstract provided.

Should State Corporate Law Define Successor Liability - The Demise Of Cercla's Federal Common Law, Bradford Mank

Faculty Articles and Other Publications

During the 1980s and early 1990s, a series of decisions broadly interpreting the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCIA) appeared destined to transform corporate law practice. CERCIA does not directly address successor liability, but the statute's complex and contradictory legislative history arguably implies that Congress wanted federal courts to apply broad liability principles to achieve the statute's fundamental remedial goal of making polluters and their successors pay for cleaning up hazardous substances.

Notably, a number of courts rejected state corporate law principles that usually limit the liability of successor corporations and instead …

Corporate Life After Death: Cercla Preemption Of State Corporate Dissolution Law, Audrey J. Anderson

Michigan Law Review

This Note discusses CERCLA's preemption of state corporate dissolution law. Although CERCLA contains a preemption clause intended to specify CERCLA's relationship with other laws, this clause addresses only state laws that impose stricter standards than those contained in CERCLA, and does not address state laws that, like dissolution laws, remove liability from a party otherwise liable under CERCLA. Courts, therefore, have also looked to section 107 of CERCLA, which imposes liability against specified parties "[n]notwithstanding any other provision or rule of law," to determine CERCLA's general relationship with state law. Through such an analysis, courts have agreed that CERCLA does …

Legal Factors In The Acquisition Of A United State Corporation: Litigation By Hostile Targets, Johan E. Droogmans

LLM Theses and Essays

Acquisitions of United States corporations have become increasingly complex takeover contests, where bidders and target corporations are forced into offensive and defensive litigation strategies to protect their respective interests. Targets often assert that the bidders have violated federal or state securities laws, federal antitrust laws, federal margin regulations, federal and state regulatory systems, and federal anti-racketeering laws. These lawsuits are primarily based on the principal federal regulation of takeovers in section 14(a) of the Securities and Exchange Act of 1934 and the Williams Act. Target litigation is customary, but entails certain disadvantages; a lawsuit rarely stops an offer, is expensive, …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

Allocation Of Scarce Goods Under Section 2-615 Of The Uniform Commercial Code: A Comparison Of Some Rival Models, James J. White

Articles

Section 2-615 of the Uniform Commercial Code authorizes a contract seller to allocate goods in short supply when full performance has become commercially impracticable. Most of the cases under and commentary on that section have focused on the issue of commercial impracticability. The allocation aspects of the section have attracted much more modest attention in the cases and in the scholarly journals. The purpose of this article is to examine critically the allocation rule set out in section 2-615(b). That subsection authorizes a seller, upon a finding of commercial impracticability, to allocate "in any manner which is fair and reasonable." …

Tingle: The Stockholder's Remedy Of Corporate Dissolution, Hugh L. Sowards

Michigan Law Review

A Review of The Stockholder's Remedy of Corporate Dissolution. By James O'Malley Tingle

Corporations-Right Of Hostile Stockholder And Director To Examinethe Books And Records Of Corporation, Charles R. Gibson S.Ed.

Michigan Law Review

Plaintiff was a minority stockholder and director in Pascal Company. She sought to inspect the books and records of the corporation relating to marketing practices, sales and customers, but was prevented from doing so by the defendant, who is the president and majority stockholder of the corporation. Plaintiff thereupon brought an action for a writ of mandamus to compel the defendant to permit such inspection. The defense was that plaintiff had a scheme to interfere with, harass and sabotage the business by contacting distributors and customers, and by making information regarding the business available to competitors. The lower court dismissed …

Corporation-Officers And Directors-Relationship Between Cumulative Voting And Removal Provisions, John W. Hupp S.Ed.

Michigan Law Review

Respondent corporation adopted a bylaw providing for removal of a director, with or without cause, by majority vote of the stockholders. The corporation subsequently amended its charter to provide for cumulative voting at all elections of directors. At a meeting of the stockholders and directors, one director was removed without cause by majority vote of the stockholders and another director elected in his place over the objection of petitioner, a minority stockholder owning 40% of the outstanding stock. On petitioner's application to have the election set aside, held, election invalidated and set aside. Adoption of the cumulative voting provision …

Corporations-Dissolution -Rights Of Members Of Nonprofit Corporation On Distribution Of Assets, John W. Hupp S.Ed.

Michigan Law Review

Defendant association was incorporated in 1921 on a nonstock basis for the purpose of maintaining a club for social enjoyment. The association never maintained such a club, however, but rather operated a plan whereby "funeral benefits" were paid to the heirs of deceased members. At a special meeting on March 7, 1946, a plan was adopted for final distribution of the assets of the association among its members "on a basis for each month a member has been a member of the association." At a subsequent meeting, the members unanimously adopted a resolution to divide the association funds among its …

Advertising And The Buyer's Remedies, Ronald A. May, John C. Nowell Jr.

Vanderbilt Law Review

The institution of advertising is of comparatively ancient origin.'Indeed, many of the features of modern advertising and many of its abuses were present in the formative period of the common law of sales. However, when the total national expenditure for advertising exceeds five and a half billion dollars, as it did in 1950, there is evidence that this institution has grown beyond the imaginations of the 17th and 18th century jurists. Particularly is this true when we consider the continent-wide scope of present-day advertising. It seems self-evident that the contact which existed between producers and consumers in earlier economic systems …

Corporations-Elections-Judicial Actions Of Inspectors Of Elections, Colvin A. Peterson, Jr. S. Ed.

Michigan Law Review

If the modern cases are to be judged in light of what the courts say, it is probable that Judge Tilghman's views are the weight of authority. While a few courts frankly admit that inspectors do act judicially at times, most of the courts continue to define the actions of the inspectors in ministerial terms. However, there are two areas within which the inspectors may exercise such unusual powers that they may be called judicial, namely, those relating to the ascertainment of (1) the validity of proxies and (2) title to stock. The scope of this comment is confined to …

Corporations-Appraisal Statutes-What Constitutes A Written Objection To Corporate Merger Scheme, Daniel A. Isaacson

Michigan Law Review

Plaintiff sent a letter to the president of a corporation, in which he held stock, revoking his proxy and stating that he would vote against a proposed merger with defendant corporation. Later, plaintiff demanded payment of the fair value of his shares pursuant to an appraisal statute which so permitted if a stockholder, dissatisfied with a merger plan," . . . objected thereto in writing . . . . " Held, the letter constituted a sufficient written objection for purposes of this statute. Wiswell v. General Waterworks Corporation, (Del. Ch. 1949) 66 A. (2d) 424.

Corporations-Appraisal Statutes-Exclusiveness Of Statutory Remedy, William R, Worth

Michigan Law Review

Defendant corporation's charter provided for retirement 'of preferred stock at par plus accumulated dividends, before payment could be made to common stockholders, in the event of dissolution or "recapture" of its assets by the enfranchising city. Under authority of a majority vote of its stockholders, the corporation conveyed all its assets to defendant City of Quincy, the enfranchising city. Defendants offered to pay preferred stockholders only $150 per share, although par plus accumulated dividends amounted to $205 and some common stockholders had already received $5 per share. Plaintiffs, preferred stockholders, sued to secure full payment, but the trial court held …

Corporations - Liability Of Directors For Failure To Enforce Corporate Right By Section 16b Of Securities Exchange Act, Bernard Goldstone

Michigan Law Review

Plaintiff brought a stockholder's derivative suit against the directors of X corporation, alleging that they wilfully failed to demand short term profits made in the sale of the corporation's securities by an officer of the corporation. These profits were recoverable by the corporation pursuant to section 16B of the Securities Exchange Act of 1934. Plaintiff further alleged that as a result of the directors' failure to sue, the statute of limitations barred recovery of these profits, giving rise to a common law action against the directors for waste. Defendants moved to dismiss. Held, motion granted. Directors were not liable …