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Sarbanes-Oxley's Purported Over-Criminalization Of Corporate Offenders, Lisa H. Nicholson 2019 Selected Works

Sarbanes-Oxley's Purported Over-Criminalization Of Corporate Offenders, Lisa H. Nicholson

Lisa H. Nicholson

No abstract provided.


Guarantor Of Last Resort: Is There A Better Alternative?, Morgan Ricks 2019 Vanderbilt University Law School

Guarantor Of Last Resort: Is There A Better Alternative?, Morgan Ricks

Vanderbilt Law School Faculty Publications

What should the government’s financial-crisis-response toolkit consist of? How should we think about its optimal scope and design? In Kate Judge offers a novel perspective on these questions. At a high level she agrees with Summers, Bernanke, Paulson, and Geithner that the existing toolkit is inadequate. In this respect she joins a number of other legal scholars and commentators. . .

The day after Lehman’s bankruptcy, Ken Rogoff—among the world’s leading experts on financial crises—wrote an op-ed titled “No More Creampuffs.” He applauded regulators for letting Lehman fail and “forc[ing] some discipline onto the system.” (To ...


Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon 2019 University of Pennsylvania Law School

Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

We examine the Centros decision through the lens of SB 826 – the California statute mandating a minimum number of women on boards. SB 826, like the Centros decision, raises questions about the scope of the internal affairs doctrine and its role in encouraging regulatory competition. Despite the claim that US corporate law is characterized by regulatory competition, in the US, the internal affairs doctrine has led to less variation in corporate law than in Europe. We theorize that this is due to the shareholder primacy norm in US corporate law which results in the internal affairs doctrine focusing on matters ...


Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky 2019 Ono Academic College

Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Fiduciary duty is arguably the single most important aspect of our corporate law system. It consists of two distinct sub-duties—a duty of care and a duty of loyalty—and it applies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship between directors and corporate officers and the firm. At present, there exists no horizontal fiduciary duty: directors and corporate officers owe no fiduciary duty to each other. Consequently, if one of them fails her peers, they cannot seek direct legal recourse against her even when they stand to suffer significant ...


Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky 2019 Ono Academic College

Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky

Cornell Law Review

Fiduciary duty is arguably the single most important aspect of our corporate law system. It consists of two distinct subduties-a duty of care and a duty of loyalty-and it applies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship between directors and corporate officers and the firm. At present, there exists no horizontal fiduciary duty: directors and corporate officers owe no fiduciary duty to each other. Consequently, if one of them falls her peers, they cannot seek direct legal recourse against her even when they stand to suffer significant reputational and ...


Should Shareholders Be Rewarded For Loyalty? European Experiments On The Wedge Between Tenured Voting And Takeover Law, Chiara Mosca 2019 Università Bocconi

Should Shareholders Be Rewarded For Loyalty? European Experiments On The Wedge Between Tenured Voting And Takeover Law, Chiara Mosca

Michigan Business & Entrepreneurial Law Review

Corporate law reveals its democratic background when it comes to the general meetings of shareholders, finding, on both sides of the Atlantic, its most tangible expression in the “one share, one vote” principle. While, in the political landscape, the “one person, one vote” standard is absolute dogma and weighting votes according to people’s preferences and interests has never proved feasible, in the corporate scenario the one share, one vote principle is constantly challenged by the incentives of companies and their shareholders to shape corporate rights according to specific needs. In this respect, some legislators (specifically in France and Italy ...


In Whose Interests Should A Company Be Run? Fiduciary Duties Of Directors During Corporate Failure In India: Looking To The West For Answers, Gautam Sundaresh 2019 Cyril Amarchand Mangaldas

In Whose Interests Should A Company Be Run? Fiduciary Duties Of Directors During Corporate Failure In India: Looking To The West For Answers, Gautam Sundaresh

Michigan Business & Entrepreneurial Law Review

This Comment looks at the debate as it has played out in the legal jurisprudence of the U.S. and the U.K. The analysis of each considers the three financial stages of a corporation’s existence that are specifically addressed in the debate today, i.e.: (i) solvency; (ii) insolvency; and (iii) the zone of insolvency. After setting out the current position, this Comment specifically addresses the various shortcomings and criticisms of the models adopted by each jurisdiction and offers observations on the status quo and the implementation of these models. On this basis, this Comment goes on to ...


Crafting A Corporate Analogue To Criminal Disenfranchisement, B. Graves Lee Jr. 2019 University of Michigan Law School

Crafting A Corporate Analogue To Criminal Disenfranchisement, B. Graves Lee Jr.

Michigan Business & Entrepreneurial Law Review

The Supreme Court’s 2010 decision in Citizens United v. FEC represented a sea change in the world of corporate citizenship. Although the decision dealt with campaign finance law, it has sparked significant discussion of the concept of corporate personhood more broadly. Corporations have increasingly taken advantage of legal rights previously reserved for individuals. This Note argues that where corporations reap the benefits of constitutional entitlements intended for individuals, they should suffer consequences for malfeasance similar to those imposed on individuals who engage in criminal conduct. Specifically, this Note advocates for limitations on corporate electioneering as a collateral consequence of ...


Fcpa Enforcement Against U.S. And Non-U.S. Companies, Michael S. Diamant, Christopher W.H. Sullivan, Jason H. Smith 2019 Gibson, Dunn & Crutcher LLP

Fcpa Enforcement Against U.S. And Non-U.S. Companies, Michael S. Diamant, Christopher W.H. Sullivan, Jason H. Smith

Michigan Business & Entrepreneurial Law Review

This Article explores how U.S. authorities have enforced the FCPA against non-U.S. companies and tests the perception that the FCPA disproportionately impacts U.S. businesses. After briefly discussing the FCPA, its enforcement, and its reach, this Article examines corporate FCPA enforcement activity since the statute’s enactment in 1977. It finds that foreign firms have actually fared worse under the FCPA despite the fact that DOJ and the SEC have brought more enforcement actions against domestic companies in absolute terms. The average cost of resolving an FCPA enforcement action to non-U.S. corporations of resolving an FCPA enforcement ...


Unintentional Irony In Landmark Decisions Of The Delaware Supreme Court Regarding Corporate Law, Steven J. Cleveland 2019 University of Oklahoma

Unintentional Irony In Landmark Decisions Of The Delaware Supreme Court Regarding Corporate Law, Steven J. Cleveland

Michigan Business & Entrepreneurial Law Review

Three landmark decisions of the Delaware Supreme Court exhibit unintentional irony: Beam v. Stewart, Smith v. Van Gorkom, and Paramount Communications Inc. v. Time Inc. In Beam, the court concluded that, regarding the decision of whether to seek remedy against Martha Stewart, her fellow directors would not have jeopardized their reputations for the minimal gain of continuing their business and personal relationships with her. Ironically, the court failed to acknowledge that Martha Stewart—in trading on material nonpublic information, which gave rise to the corporate claim against her—jeopardized her reputation (ultimately losing hundreds of millions of dollars and her ...


Promoting Predictability In Business: Solutions For Overlapping Liability In International Anti-Corruption Enforcement, Andrew T. Bulovsky 2019 University of Michigan Law School

Promoting Predictability In Business: Solutions For Overlapping Liability In International Anti-Corruption Enforcement, Andrew T. Bulovsky

Michigan Journal of International Law

This Note evaluates solutions to the problems of overlapping liability in general and multi-jurisdictional disgorgement in particular. Part I traces the origins of international anti-corruption efforts and provides an overview of the Foreign Corrupt Practices Act (the “FCPA”). It then discusses the two most significant international anti-corruption conventions: the OECD’s Convention on Combatting Bribery of Foreign Officials in International Business Transactions (the “OECD Convention”) and the United Nations Convention Against Corruption (“UNCAC”). Part II lays out the problems created by the lack of a formal mechanism to prevent overlapping liability— a phenomenon that violates the common law concept known ...


Activist Shareholders At De Facto Controlled Companies, Gaia Balp 2019 Brooklyn Law School

Activist Shareholders At De Facto Controlled Companies, Gaia Balp

Brooklyn Journal of Corporate, Financial & Commercial Law

Activist campaigns are likely to increasingly target controlled companies. Studies concerning activism at controlled companies focus on shareholder-empowering tools, such as the right to nominate and elect minority directors on the board, as a pathway for limiting the principal-principal agency problem. However, not enough attention has been paid to the distinction between de jure and de facto controlled companies. Building on a recent case concerning a leading Italian corporation, this Article analyzes the possible unexpected corporate governance consequences of successful activist intervention at de facto controlled companies, showing that, where minority shareholders are granted the right to appoint directors on ...


The Specter Of The Giant Three, Scott Hirst, Lucian Bebchuk 2019 Boston University School of Law

The Specter Of The Giant Three, Scott Hirst, Lucian Bebchuk

Faculty Scholarship

This Article examines the large, steady, and continuing growth of the Big Three index fund managers — BlackRock, Vanguard, and State Street Global Advisors. We show that there is a real prospect that index funds will continue to grow, and that voting in most significant public companies will come to be dominated by the future “Giant Three.”

We begin by analyzing the drivers of the rise of the Big Three, including the structural factors that are leading to the heavy concentration of the index funds sector. We then provide empirical evidence about the past growth and current status of the Big ...


Transnational Business Governance Interactions, Regulatory Quality And Marginalized Actors: An Introduction, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott 2019 Allard School of Law at the University of British Columbia

Transnational Business Governance Interactions, Regulatory Quality And Marginalized Actors: An Introduction, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott

Faculty Publications

In what circumstances can transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—be harnessed to enhance the quality of transnational regulation and advance the interests of marginalized actors? This chapter introduces the concept of transnational business governance interactions (TBGIs), summarizes the TBGI analytical framework and defines regulatory quality and marginalized actors. It proposes to investigate the relationship between TBGIs, regulatory quality and marginalized actors at three levels: regulatory capacities, outputs and outcomes. The chapter presents the plan of the book and summarizes the ...


Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev 2019 UCLA School of Law

Securities Disclosure As Soundbite: The Case Of Ceo Pay Ratios, Steven A. Bank, George S. Georgiev

Boston College Law Review

This Article analyzes the history, design, and effectiveness of the highly controversial CEO pay ratio disclosure rule, which went into effect in 2018. Based on a regulatory mandate contained in the Dodd-Frank Act of 2010, the rule requires public companies to disclose the ratio between CEO pay and median worker pay as part of their annual filings with the Securities and Exchange Commission (SEC). The seven-year rulemaking process was politically contentious and generated a level of public engagement that was virtually unprecedented in the long history of the SEC disclosure regime. The SEC sought to minimize compliance costs by providing ...


Let’S Shake On It: Perceived Pre-Contractual Risk In Cross-Border Investment, Kevin J. Fandl JD, Phd 2019 Fox School of Business, Temple University

Let’S Shake On It: Perceived Pre-Contractual Risk In Cross-Border Investment, Kevin J. Fandl Jd, Phd

University of Miami Business Law Review

This article asks whether a legal system that provides protection for commitments made prior to contract formation is more or less conducive to risk-taking by foreign investors than a legal system that does not. I surmise that increased levels of protection for precontractual commitments establish an environment more hospitable to new business development, giving potential entrepreneurs added security in their ventures. And I further surmise that different legal traditions provide different levels of protection for these pre-contractual commitments.

To better understand the risks faced by cross-border business investors, this article describes the key distinctions between legal systems that create potential ...


Criminal Trade Secret Theft Cases Against Judgment Proof Defendants In Texas And California, Michelle Evans, Kurt M. Saunders 2019 College of William & Mary Law School

Criminal Trade Secret Theft Cases Against Judgment Proof Defendants In Texas And California, Michelle Evans, Kurt M. Saunders

William & Mary Business Law Review

Trade secret theft is a costly and ongoing risk to many businesses. As the two most populous states, California and Texas are home to numerous businesses that own trade secrets. Although civil remedies afford one source of relief when a trade secret has been stolen or disclosed, collecting on a judgment may be impossible due to the Homestead laws in both states, which effectively render the defendants judgment proof. In such cases, another alternative is to consider a criminal prosecution under the Federal Economic Espionage Act or state law. The same misconduct that results in civil liability can also violate ...


Loyalty Loses Ground To Market Freedom In The U.S. Supreme Court, Daniel Harris 2019 College of William & Mary Law School

Loyalty Loses Ground To Market Freedom In The U.S. Supreme Court, Daniel Harris

William & Mary Business Law Review

In the last decade, the U.S. Supreme Court has taken a much less moralistic and much more market-oriented approach to questions of fiduciary loyalty. In cases involving fiduciaries with conflicts of interest, the Court has shifted the burden of proof to the party claiming unfair treatment, thereby protecting deals and making loyalty harder to enforce. The Court has also struck down or narrowly construed laws designed to prevent disloyalty by fiduciaries on the theory that broad prohibitions on business conduct encroach on constitutionally protected freedoms.

This Article discusses how the Supreme Court’s new approach represents a departure from ...


Government Ownership Of Banks: A Curse Or A Blessing For The United States?, Yueh-Ping (Alex) Yang 2019 College of William & Mary Law School

Government Ownership Of Banks: A Curse Or A Blessing For The United States?, Yueh-Ping (Alex) Yang

William & Mary Business Law Review

During the Financial Crisis of 2007–2008, the Treasury injected an enormous amount of capital and held equity in 707 financial institutions to stabilize the U.S. financial system. The government’s large-scale ownership of banks alarmed the U.S. banking sector. The mainstream opinion in the United States strongly opposed this practice, mostly due to the distrust of the government and the fear that government intervention would jeopardize private shareholders’ interests. Later developments, including the Treasury’s quick exit from its holdings and the Dodd-Frank Act’s declaration of the end of bailouts, suggest that the U.S. government ...


Symposium Panel One: Does Corporate Decision Making Allow Room For Religious Values, Russell G. Pearce, Steven H. Resnicoff, Mark A. Sargent, W Bradley Wendel 2019 Selected Works

Symposium Panel One: Does Corporate Decision Making Allow Room For Religious Values, Russell G. Pearce, Steven H. Resnicoff, Mark A. Sargent, W Bradley Wendel

Steven Resnicoff

No abstract provided.


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