Commercial Law Commons^™

More Meaningful Ethics, Veronica Root Martinez

Faculty Scholarship

Firms have exponentially increased their investment in the creation and implementation of ethics and compliance programs over the past fifteen years. The convergence of more robust corporate enforcement actions and more sophisticated industry standards and practices surrounding compliance efforts has created a booming compliance industry with commonly accepted standards and responsibilities. Within these efforts is a formal acknowledgment by the government, industry leaders, and academics that ethics has a role to play in helping to prevent misconduct within firms and that compliance without concern for ethics is insufficient. The reality, however, is that within firms’ efforts to implement effective ethics …

Competing For Votes, Kobi Kastiel, Yaron Nili

Faculty Scholarship

Shareholder voting matters. It can directly shape a corporation’s governance, operational and social policies. But voting by shareholders serves another important function—it produces a marketplace for votes where management and dissidents compete for the votes of the shareholder base. The competition over shareholder votes generates ex ante incentives for management to perform better, to disclose information to shareholders in advance, and to engage with large institutional investors.

Traditional corporate law has looked to a variety of “market forces” as a means of curbing the agency costs of public corporations. Yet, for various reasons, these market forces are, at best, an …

The Law Of Corporate Investigations And The Global Expansion Of Corporate Criminal Enforcement, Jennifer Arlen, Samuel W. Buell

Faculty Scholarship

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of …

Soft Law As Governing Law, Steven L. Schwarcz

Faculty Scholarship

International business transactions increasingly are being conducted under “soft law”—a term referring to non-state rules that may be aspirational or reflect best practices but are not yet legally enforceable. In part, this shift reflects a decline in cross-border treaty-making, which needs widespread consensus and is subject to lengthy negotiations. Soft law’s lack of enforceability, however, is creating uncertainty and undermining predictability. To increase predictability, this Article argues for an innovative use of soft law: as a set of rules to choose as the governing “law” of business contracts. This use of soft law would be transformational, making the soft law …

Stay In The Fight With Civility And Professionalism, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Are Publicly Traded Corporations Disappearing?, Margaret Blair

Vanderbilt Law School Faculty Publications

Corporate law scholars and economists have expressed concern recently about the fact that the number of publicly traded corporations in the United States has declined significantly since a peak in the late 1990s. In this Essay, in honor of the late Professor Lynn Stout, who devoted much of her career to the study of large publicly traded corporations, I show that despite a decline in the number of such corporations in the last two decades, they collectively account for about the same share of total economic activity as they have for the last six decades. While there has been turnover …

Fossil Fortunes: Regulating Commercial Paleontology & Incentivizing Fossil Discovery, Ashlee A. Paxton-Turner

Faculty Scholarship

No abstract provided.

Declining Corporate Prosecutions, Brandon L. Garrett

Faculty Scholarship

In the aftermath of the Global Financial Crisis, people across the United States protested that "too big to jail" banks were not held accountable after the financial crisis. Little has changed. Newly collected data concerning enforcement during the Trump Administration has made it possible to assess what impact a se­ries of new policies has had on corporate enforcement. To provide a snapshot comparison, in its last twenty months, the Obama Administration levied $I4.15 billion in total corporate penalties by prosecuting seventy-one financial institu­tions and thirty-four public companies. During the first twenty months of the Trump Administration, corporate penalties declined to …

Tuition As A Fraudulent Transfer, David G. Carlson

Articles

Bankruptcy trustees are suing universities because the insolvent parent of an adult student has written a tuition check while insolvent. The theory is that the university is the initial transferee of a fraudulent transfer that has provided benefit to the student but not to the parent debtor. This article claims that the university is never the initial transferee of tuition dollars. Rather, the student is. Where the university has no knowledge of parent insolvency, the university can count educating the student as a good faith transfer for value, thus immunizing the university from liability. The unpleasant side effect is that …

The Paradox Of Contracting In Markets, Robert E. Scott

Faculty Scholarship

Traditional economic analysis distinguishes economic organization along three dimensions: firm, contract, and market. This categorization is misleading in any number of respects, but none more so than the assumption that contract and market are separate modes of exchange. In fact, other than barter, which is almost unknown in contemporary commercial transactions, every market transaction is implemented by contract. Thus, in markets the two modes of exchange are inextricably combined. Moreover, the vast majority of contract activity occurs in some form of market, so it does not require much loss of generalization to say that not only are contracts in all …

Driver For Contactless Payments, Ronald J. Mann

Faculty Scholarship

As a consumer, my primary experience with cash before the virus was standing in checkout lines observing the sluggish pace of cash transactions in front of me. Like so many things in our lives, the advent of the virus has changed the situation markedly. From the earliest days of infection, it has been far more unsettling to observe cash transactions knowing that the virus persists on paper and metal surfaces for days.

The dynamic that has driven the choices merchants offer in face-to-face retail transactions will change as well. Driven by the private exigencies of the retail environment, the last …

Bali Mawacara: Is A Quasi-Common Law System Developing In Balinese Customary Law?, Danial Kelly, Wayan P. Windia

Indonesia Law Review

The Indonesian island of Bali is internationally renowned as a popular tourist destination. Tourists from around the world have been attracted to Bali’s rich and colourful displays of culture and its friendly people for many decades. Intertwined with the predominately Hindu culture that is so readily visible is the invisible customary legal system of Bali that regulates much of the daily life of the Balinese. This autochthonous legal system exists in plurality with the Indonesian state legal system. As with all legal systems, the Balinese customary law system is in a state of flux. This article will examine the foundational …

Corporate Social Responsibility Sebagai Promosi Perseroan Terbatas, Chandra Yusuf, Endang Purwaningsih

Jurnal Hukum & Pembangunan

The application of Corporate Social Responsibility (CSR) and Fiduciary Duty in Law No. 40 of 2007 concerning Limited Liability Companies creates a conflict of interest. The problem that arises is the placement of CSR in the company's income statement that will reduce the company's dividend distribution. This violates the principle of "fiduciary duty". Directors of Limited Liability Company must maximize shareholder prosperity. So far, CSR is considered a social activity. To avoid conflicts of interest, CSR must be classified into a promotional account in the financial statements, especially the Balance Sheet. The method used to assess CSR refers to the …

Reducing The Governance Gap For Corporate Complicity In International Crimes, Seunghyun Nam

Brooklyn Journal of International Law

With increasing reports of corporations involved in serious human rights abuses that amount to international crimes, there are greater calls for states to hold these corporations accountable. Still, many obstacles and challenges remain when it comes to holding corporations accountable. Complex corporate structures, the extraterritorial dimension of the abuses, competition among states and businesses, lack of institutional capacity on the part of states, and lack of legal coordination among states collectively create an impunity gap. The case studies of the situation in Burma and the Democratic Republic of Congo involving foreign companies aim to illustrate this governance gap. With growing …

Empowering The Poor: Turning De Facto Rights Into Collateralized Credit, Steven L. Schwarcz

Notre Dame Law Review

The shrinking middle class and the widening gap between rich and poor threaten social and financial stability. Though sometimes identified as a problem of developing nations, the inability of the poor to obtain credit by using their de facto rights in property as collateral impedes upward mobility in nearly all countries, including the United States. Efforts to solve this problem have focused on trying to transform de facto rights into de jure title under property law. Those efforts have been unsuccessful because, among other reasons, property law is tightly bound to tradition and protecting vested ownership. This Article proposes an …

Introduction, Kim Brooks, Kim Brooks

Dalhousie Law Journal

At Schulich, we see business law in a broad frame and understand that business law and policy includes the role of businesses in environmental protection, sustainable investing, inter-nation equity, and access to justice. We understand that businesses operate in broad social, economic, and political contexts, and as a community of scholars we care about the interactions of business law and policy with technology, governance and stakeholder rights, and economic, social and environmental justice. We hope that this collection advances vital scholarly and policy conversations.

A Survey And Critique Of The “Seller In Possession” Statutory Regimes Of Common Law Canada: An Abc Prequel, Clayton Bangsund

Dalhousie Law Journal

The article examines the various provincial and territorial statutory regimes that apply to resolve title disputes emanating from a “seller in possession” scenario in which an initial buyer leaves bought goods in the possession of a seller who then transfers them to a subsequent bona de purchaser. Presently there are four distinct statutory models in force across common law Canada. Some provinces and territories incorporate modernized electronic personal property registry infrastructure into their statutory priority regimes, while others do not. The author undertakes a comparative assessment of the four models, highlights their strengths and weaknesses, and asserts that Model 2—representative …

Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe

Dalhousie Law Journal

The Truth and Reconciliation Commission of Canada (TRC)’s Calls to Action propose signimcant changes to legal education. No law school classroom is exempt, including business law courses. We are two of a growing number ofscholars in the legal academy actively incorporating Indigenous laws, critical race theory and socio-economic perspectives into business law courses as part of our responses to the TRC. This paper explores a field school we developed at Windsor Law as a response to the Calls to Action. In a temporary fusion of two courses, Secured Transactions along with Indigenous Peoples, Art & Human Rights, a synergy emerges …

Manufacturing Consent To Climate Inaction: A Case Study Of The Globe And Mail ’S Pipeline Coverage, Jason Maclean

Dalhousie Law Journal

Canada has long been a climate change policy laggard. Canada is among the world’s poorest-performing countries in terms of climate action—not only is Canada’s greenhouse gas emissions-reduction target under the Paris Agreement insufficiently ambitious, Canada is not even remotely on track to meet it. Canada’s enduring inaction on climate change is legitimized and sustained by its mainstream corporate news media, which contribute to the oil and gas industry’s capture of Canadian climate and energy policy. In this article, I examine how Canada’s leading national newspaper, The Globe and Mail, editorially framed the completion of the controversial expansion of the Trans …

Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin

Dalhousie Law Journal

When is a director or of�� cer personally liable in tort to a party who is not the corporation he or she serves? In Canada, there is no clear answer. The law is marked by division both within and between appellate courts, resulting in judgments that are hard to reconcile and verge on arbitrary. This is likely attributable to the mistaken belief that there is a tension between personal liability and corporate personality, as well as the disputed relationship between common law and statutory obligations. To address these challenges, most Canadian courts have followed a threshold corporate law analysis, which …