Courts Commons^™

Confusion And Unpredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann M. Scarlett

All Faculty Scholarship

The Delaware courts responded to the recent wave of corporate scandals, exemplified by Enron and WorldCom, by changing their approach to shareholder derivative litigation. This Article analyzes the Delaware courts' response to these scandals and concludes that the courts have created doctrinal confusion and introduced unpredictability into derivative litigation. This Article also analyzes the future negative consequences for shareholders, corporations, directors, investors, and other litigants. Finally, this Article proposes improvements for derivative litigation that may alleviate the confusion and unpredictability created by the Delaware courts' response to the recent scandals.

A Closer Look At Veil Piercing In Federal District Courts, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

In this project, we utilize six years of original federal district court data to identify the first representative sample of corporate veil piercing litigation. This study will provide a more nuanced understanding of the process of litigation of piercing claims than previous studies, which have been modeled on Robert Thompson's (1991) groundbreaking work on this topic. Our method first identifies veil piercing litigation through Westlaw's trial pleadings database, and proceeds to code each case through detailed examination of PACER records.

We identify and model the differing types of success plaintiffs achieve when they seek to pierce the veil, including those …

The State Of The Judiciary: A Corporate Perspective, Larry D. Thompson, Charles J. Cooper

Scholarly Works

The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner. This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

The State Of Judiciary: A Corporate Perspective, Larry D. Thompson

Scholarly Works

The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

Who Is Entitled To Survivor Benefits From Erisa Plans?, 40 J. Marshall L. Rev. 919 (2007), Albert Feuer

UIC Law Review

No abstract provided.

Expert Testimony Disclosure Under Federal Rule 26: A Proposed Amendment, 41 J. Marshall L. Rev. 117 (2007), Keith H. Beyler

UIC Law Review

No abstract provided.

The Fda Preamble: A Backdoor To Federalization Of Prescription Warning Labels?, 41 J. Marshall L. Rev. 161 (2007), Cristina Rodríguez

UIC Law Review

No abstract provided.

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Scholarly Works

This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller

ExpressO

We study a data set of 2,858 contracts contained as exhibits in Form 8-K filings by reporting corporations over a six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. Because 8-K filings are required only for material events, these contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. These contracts, therefore, provide evidence of efficient ex ante solutions to contracting problems. The vast majority of contracts did not require arbitration. Only about 11 percent of the contracts included binding arbitration clauses. The rate …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

ExpressO

As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …

Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch

ExpressO

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Hybrid Class Action As Judicial Spork: Managing Individual Rights In A Stew Of Common Wrong, 39 J. Marshall L. Rev. 231 (2006), Jon Romberg

UIC Law Review

No abstract provided.

Resolving The Judicial Paradox Of "Equitable" Relief Under Erisa Section 502(A)(3), 39 J. Marshall L. Rev. 827 (2006), Colleen E. Medill

UIC Law Review

No abstract provided.

Always Low Prices, Always At A Cost: A Call To Arms Against The Wal-Martization Of America, 40 J. Marshall L. Rev. 267 (2006), Justin R. Watkins

UIC Law Review

No abstract provided.

Developing Trends With The Class Action Fairness Act Of 2005, 40 J. Marshall L. Rev. 115 (2006), Steven M. Puiszis

UIC Law Review

No abstract provided.

The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's …

Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The "Duty" To Be A Rational Shareholder, David A. Hoffman

ExpressO

How and when do courts determine that corporate disclosures are actionable under the federal securities laws? The applicable standard is materiality: would a (mythical) "reasonable investor" have considered the disclosures important. As I establish through empirical and statistical testing of 500 cases analyzing the materiality standard, judicial findings of immateriality are remarkably common, and have been stable over time. Materiality's scope results in the dismissal of a large number of claims, and creates a set of cases in which courts attempt to explain and defend their vision of who is, and is not, a "reasonable investor." Thus, materiality provides an …

"Who's The Boss?": An Analytical And Practical Approach To Determine The "Employer" In A Defined Contribution Qualified Retirement Plan, 38 J. Marshall L. Rev. 1011 (2005), Megan Mccoy

UIC Law Review

No abstract provided.

Injunctions Against Liquidation In Trade Remedy Cases: A Petitioner's View, 39 J. Marshall L. Rev. 45 (2005), Jeffrey M. Telep

UIC Law Review

No abstract provided.

Adjudicating International Trade Cases At The U.S. Commerce Department: Endless Remand Or Balanced Resolve?, 39 J. Marshall L. Rev. 59 (2005), Elizabeth C. Seastrum, Matthew D. Walden

UIC Law Review

No abstract provided.

Patients Beware: Preemption Of Common Law Claims Under The Medical Device Amendments, 39 J. Marshall L. Rev. 75 (2005), Michael P. Dinatale

UIC Law Review

No abstract provided.

Erisa: Re-Thinking Firestone In Light Of Great-West - Implications For Standard Of Review And The Right To A Jury Trial In Welfare Benefit Claims, 37 J. Marshall L. Rev. 629 (2004), Donald T. Bogan

UIC Law Review

No abstract provided.

The Cash Balance Plan: An Integral Component Of The Defined Benefit Plan Renaissance, 37 J. Marshall L. Rev. 753 (2004), Barry Kozak

UIC Law Review

No abstract provided.

The Boundary Of Personal Jurisdiction: The "Effects Test" And The Protection Of Crazy Horse's Name, 38 J. Marshall L. Rev. 381 (2004), Scott Fruehwald

UIC Law Review

No abstract provided.

Separations, Blow-Outs, And Fallout: A Treadise On The Regulatory Aftermath Of The Ford-Firestone Tire Recall, 37 J. Marshall L. Rev. 1073 (2004), Kevin M. Mcdonald

UIC Law Review

No abstract provided.