Business Organizations Law Commons^™

Celebrating Markham’S Approach To Financial History: Getting At The Macro One Deal At A Time, José Gabilondo

FIU Law Review

Professor Markham's financial history does an excellent job of reviewing and analyzing financial history for the period from the Great Recession to the COVID pandemic. His granular approach to financial history conveys macro-trends by focusing on the most defining transactions and episodes from this period.

Book Review From The Great Recession To The Covid-19 Pandemic A Financial History Of The United States, Rigers Gjyshi

FIU Law Review

A review of Professor Jerry Markham's book "From the Great Recession to the COVID-19 Pandemic."

Climate-Related Shareholder Activism As Corporate Democracy: A Call To Reform “Acting In Concert” Rules, Dan W. Puchniak, Umakanth Varottil

Research Collection Yong Pung How School Of Law

Climate change is an issue of global importance, which may turn out to be the issue of this century. Companies are at the core of both the problems and solutions for climate change. Given this reality, it is astounding that in virtually all jurisdictions in the world ‘acting in concert rules,’ which were designed decades ago to facilitate an efficient market for corporate control, effectively prevent shareholders who hold a majority of shares from democratically replacing boards of dirty companies. Our Article exposes this overlooked reality by undertaking the first in-depth comparative analysis of acting in concert rules with a …

The Thrusts And Parries Of Policy Arguments, Scott Hirst

Faculty Scholarship

Anyone who has ever put forward a policy proposal has heard the response, “if it ain’t broke, don’t fix it.” But despite the ubiquity of this attack on policy proposals, there has been little sustained inquiry into how the attack works and how it can be defended. The goal of this Article is to identify policy attacks like this, and to show their underlying logical structure, and how they function to attack policy proposals. The Article demonstrates this approach by considering three generic attacks on policy proposals, which I refer to as ain’t broke attacks, partial framing attacks, and dollar …

Outsourcing Voting To Ai: Can Chatgpt Advise Index Funds On Proxy Voting Decisions?, Chen Wang

Fordham Journal of Corporate & Financial Law

Released in November 2022, Chat Generative Pre-training Transformer (“ChatGPT”), has risen rapidly to prominence, and its versatile capabilities have already been shown in a variety of fields. Due to ChatGPT’s advanced features, such as extensive pre-training on diverse data, strong generalization ability, fine-tuning capabilities, and improved reasoning, the use of AI in the legal industry could experience a significant transformation. Since small passive funds with low-cost business models generally lack the financial resources to make informed proxy voting decisions that align with their shareholders’ interests, this Article considers the use of ChatGPT to assist small investment funds, particularly small passive …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

Expanding Mfw: Delaware Law Should Offer A Business Judgment Rule Safe Harbor For All Conflicted Controller Transactions, Alex Lindsey

Fordham Journal of Corporate & Financial Law

While courts usually defer to a board’s business decisions under the business judgment rule, courts will apply a much less deferential standard of review due to loyalty concerns if a conflicted controller is involved in a business decision such as a merger. However, in Kahn v. M & F Worldwide (“MFW”) when a squeeze out merger was challenged by a minority stockholder, the Delaware Supreme Court reviewed the transaction under the deferential business judgment rule standard because the Court found that the structure of the transaction neutralized the controller loyalty concerns. Building on this reasoning, the Court developed a checklist …

The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder

Fordham Journal of Corporate & Financial Law

Until recently, class actions dominated merger objection litigation. However, plaintiff’s lawyers have constructed a “non-class” class where an individual suit can benefit from the leverage of a certified class without ever meeting the stringent class certification requirements of Federal Rules of Civil Procedure 23. This new development has initiated a shift in merger objection litigation where plaintiffs are increasingly filing individual suits instead of class actions. However, this shift has left shareholders vulnerable to collusive settlements because plaintiff’s attorneys have significant control over these suits and a strong incentive to settle quickly for a substantial fee. Additionally, corporate defendants are …

Loophole Entrepreneurship, Brian M. Sirman

Fordham Journal of Corporate & Financial Law

All entrepreneurs seek favorable legal or regulatory treatment for their businesses. Sometimes this leads an entrepreneur to build a business within a gap in the law—a loophole. In so doing, these “loophole entrepreneurs” may avoid steep regulatory compliance costs that otherwise would beset (or perhaps prohibit) their businesses, thereby gaining advantages over competitors. Despite these benefits, loophole entrepreneurship is fraught with risks. Loopholes, by nature, are fragile, and their contours are often uncertain. Moreover, the stigma of “exploiting a loophole” (which connotes unfairness or deception) can provoke ill will among competitors, policymakers, and the public.

The ranks of loophole entrepreneurs …

Whom Is Corporate Esg Integration For?, Ryan Brennan

Brooklyn Journal of International Law

Notions of corporate social responsibility (CSR) and more recently, environmental, social, and governance (ESG) have found their way into the boardrooms of the world’s largest corporations. The prominence of this trend has revived the timeless debate over the true function of for-profit business. Traditional theory calls for a corporation to maximize shareholder’s profits—a view known as “shareholder primacy.” A competing contemporary school of thought finds that corporate purpose naturally extends beyond generating return on the investment of a given shareholder to reflect social objectives and the many dependent constituents of a business. As it stands, US corporate law tracks the …

Nyc Local Law 144: A Failed Attempt At Regulating Ai In Hiring, Christopher Janaro

Capstones

New York City recently passed a law that aims to regulate the use of automated AI tools in hiring. The Problem? Big business helped write it.

Is The Fair Use Doctrine A Viable Argument For Generative Ai?, Olivia Bainbridge

Honors Theses

The purpose of this research paper is to examine whether or not the fair use doctrine, a pivotal piece of copyright law, is a viable argument on behalf of generative artificial intelligence companies that are currently being sued on the basis of accused infringement of copyrighted images that their programs are trained on. By examining whether or not fair use is viable, generative artificial intelligence companies will be able to better gauge the validity of their arguments as well as adjust their practices accordingly if needed. This research is necessary because this research is examining a new field of law …

Clark Memorandum: Fall 2023, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Five Ways Law School Contributes to Life’s True Purpose
• Faith in Law: A Q&A with President Dallin H. Oaks
• Personal Religious Conviction and the Practice of Law

Business Associations, Scott Lowry

Mercer Law Review

This Article surveys a selection of noteworthy cases involving business associations that Georgia courts decided between June 1, 2022 and May 31, 2023. This Article also briefly highlights the 2023 update to the Georgia Nonprofit Corporation Code, sections 14-3-101–1703 of the Official Code of Georgia Annotated, which was signed by Governor Kemp on May 2, 2023, and took effect on July 1, 2023.

Taxing The New With The Old: Capturing The Value Of Data With The Corporate Income Tax In Virginia, Coleman H. Cheeley

University of Richmond Law Review

The Commonwealth of Virginia markets itself as “The Largest Data Center Market in the World.”In 2019, the Northern Virginia market alone was the largest in the United States by inventory, with room to grow. In 2021, data centers in Northern Virginia required an estimated 1,686 megawatts of power; that number is expected to increase by 200 megawatts in the near future, reflecting data centers currently under development. For reference, in 2022, it was estimated that more than 100 homes could be powered by one megawatt of solar power in Virginia. Historically, data centers have been located in the Commonwealth due …

Lendingpoint Consolidated, Inc., Et. Al. V. Bdo Usa, Llp, Et. Al., Order On Motions To Dismiss, Kelly L. Ellerbe

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

No abstract provided.

Galaxy Next Generation Inc. V. Bradley Ehlert, Et Al., Order On Motion For Summary Judgment, Kelly L. Ellerbe

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

No abstract provided.

Ensuring Data Privacy In A Decentralized World: An Analysis Of The Legal Challenges And Implications Of Smart Contracts, Khusbeen Dhillon

Featured Student Work

Advances in blockchain technology have revolutionized what a contract can be: lines of code that are stored on the decentralized network, otherwise known as smart contracts. Smart contracts are self-executing agreements that automatically enforce the terms of the agreement using a series of if-then conditions. They are projected to give a better solution to traditional contracts in terms of reducing risk, reducing costs, and improving the efficiency of corporate processes. However, the transparent and immutable nature of blockchain technology imposes significant challenges regarding an individual’s right to control their personal information in the context of smart contracts. This article examines …

Wandering Mind As Fiduciary Breach: Cognitive Duties Of Corporate Directors, David Yosifon

William & Mary Business Law Review

Drawing on contemporary science and ancient wisdom, this Article assesses the ubiquitous human problem of mind wandering as it relates to the fiduciary obligations of corporate directors. Directors must endeavor to advance shareholder interests carefully and loyally. Boards have extremely wide latitude to determine the substance of corporate policies, but the law imposes certain process obligations on corporate decision-making with particularity. Directors must approach their decision-making in an informed and deliberate way. They must listen to reports, and they must deliberate with their fellow directors before voting on corporate action at board meetings. This Article identifies the duty to concentrate …

Caging The Bored Ape: How The Ftc's Expanded Anti-Monopoly Authority Can Tame "Nfts" For Web 3.0, J. Scott Colesanti

William & Mary Business Law Review

Non-Fungible Tokens, or “NFTs,” ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters—and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency—the technology enabling the life of an NFT—remains beset with, at best, theoretical models for effective regulation a full generation after its emergence.

To propose a rational start …