The Business Judgment Rule As an Immunity Doctrine
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The Contractarian Theory of Corporate Law: a Generation Later
The Contractarian Theory of Corporate Law: A Generation Later Michael Klausner* I. A BRIEF REVIEW OF THE CONTRACTARIAN THEORY OF CORPORATE LAW .............782 ..................................... II. DIVERSITY IN CORPORATE CONTRACTS? ........................... .784 A. D iverse Non-Contracts .........................................................................................784 B. Uniform Contracts ................................................................................................786 1. IncorporationChoices .....................................................................................786 2. Choice of Charter Terms .................................................................................789 ................. III. WHY DO FIRMS CHOOSE UNIFORM CONTRACTS? .................................. 791 A . D oes One Size Fit A ll? ..........................................................................................792 B. Learning and Network Externalitiesas Impediments to Customization ...............793 IV. IMPLICATIONS AND CONCLUSION ............................................................................796 This essay and the symposium to which it is contributed mark the 20th anniversary of the publication of Corporate Law by Robert Clark. ' Clark's book was an important force in bringing economic analysis to bear on issues of corporate law, a process that has transformed corporate law scholarship. At its broadest theoretical level, this transformation reconceived the corporation as a contractual entity -
The Last-In-Time Marriage Presumption Peter N
University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 1995 The Last-in-Time Marriage Presumption Peter N. Swisher University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Family Law Commons Recommended Citation Peter Nash Swisher, The Last-in-Time Marriage Presumption, 29 Fam. L.Q. 409 (1995). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. The Last-in-Time Marriage Presumption PETER NASH SWISHER* and MELANIE DIANA JONES** I. Introduction The typical scenario for the last-in-time marriage presumption is not as unusual as one might expect: A husband (or wife) has unexpectedly died, and the bereaved surviving spouse is in the process of bringing a legal proceed- ing that may include a probate action, a wrongful death action, a suit for social security benefits, a workers' compensation action, a life insurance action, or another legal action for related compensatory, probate, or insurance benefits. However, during the pendency of these actions a former wife comes forward, claiming that she has never been divorced from her deceased spouse and that she, rather than the subsequent wife, should recover in any legal proceeding as the legal wife. Which wife should prevail? To many, the initial conclusion might be that because American family law in the vast majority of states prohibits bigamy and other plural marriages,' the first-in-time spouse should recover all the proceeds. -
Understanding Maryland's Business Judgment Rule
File: sharfmanfinalmacro.doc Created on: 4/18/2006 5:07 PM Last Printed: 5/20/2006 5:17 PM Understanding Maryland’s Business Judgment Rule Bernard S. Sharfman1 I. INTRODUCTION The “Business Judgment Rule” (“BJR”) is a common law stan- dard of judicial review.2 The BJR is applied by the courts to favor the actions of corporate managers.3 According to Henry Manne, a leading commentator on corporate law, the BJR protects from ju- dicial review “honest if inept business decisions” made by corpo- rate managers.4 By accomplishing this strategic objective, the BJR tries to obtain its ultimate goal - preventing courts from exer- cising regulatory authority over corporate management.5 The creation of the BJR as a means of obtaining this goal is a direct product of the time period in which it originated. The BJR first appeared in the 19th century, a time when there was a fear of gov- ernment regulation. Since then, the BJR has been used by the courts as a means to avoid the exercise of regulatory authority over corporations.6 1. Bernard Sharfman is a member of the DC and Maryland bars and a Class of 2000 graduate of Georgetown University Law Center. This article is dedicated to Mr. Sharfman’s wife, Susan David, for without her encouragement and editorial comments this article would never have been completed. Mr. Sharfman would like to thank Joseph Hinsey, H. Douglas Weaver Professor of Business Law, Emeritus, at the Harvard University Graduate School of Business Administration and James J. Hanks, Jr., Partner, Venable LLP and the author of Maryland Corporate Law for their helpful comments and insights. -
A Simple, Effective Will
Pace Law School Continuing Legal Education Bridge the Gap: December 6-7, 2014 A SIMPLE, EFFECTIVE WILL Daniel Timins. Esq. [email protected] 450 7th Avenue, Suite 1500 New York, New York 10123 (212) 683-3560 Telephone Number www.timinslaw.com Daniel A. Timins, Esq. Law Offices of Daniel Timins FOREWORD It is sometimes mind-numbing to see the absurd depth that attorneys will sink to when drafting legal documents: Details, definition sections, contingency upon contingency upon contingency. Yet, in the end, the artful litigator will still find a sufficient number of loopholes and arguments in any document, no matter how solid the drafter intended it to be. The statement “simple is better” when it comes to legal documents may be true, and perhaps equally so when it comes to the central estate planning document: A Last Will and Testament. There are many two page “Sweetheart Wills” drafted by laymen which are admitted to Probate with little problem. On the reverse side, there are a near-unlimited number of Court proceedings based on multiple page Wills drafted by the most skilled attorneys that languish in the Surrogate’s Court for years. And, of course, the inverse is equally true for both parties. The “Plain English” trend in legal writing should be observed with modern Wills even more so than other legal documents: The Will should be drafted in a way that allows the client to understand what legal concepts are being conveyed. To do otherwise may have the negative effects of not fulfilling the Testator’s desires, and may open the Will up to the protracted legal intervention that the drafter was hoping so hard to avoid. -
The “Radical” Notion of the Presumption of Innocence
EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY THE “RADICAL” MAY 2020 Tracey Meares, NOTION OF THE Justice Collaboratory, Yale University Arthur Rizer, PRESUMPTION R Street Institute OF INNOCENCE The Square One Project aims to incubate new thinking on our response to crime, promote more effective strategies, and contribute to a new narrative of justice in America. Learn more about the Square One Project at squareonejustice.org The Executive Session was created with support from the John D. and Catherine T. MacArthur Foundation as part of the Safety and Justice Challenge, which seeks to reduce over-incarceration by changing the way America thinks about and uses jails. 04 08 14 INTRODUCTION THE CURRENT STATE OF WHY DOES THE PRETRIAL DETENTION PRESUMPTION OF INNOCENCE MATTER? 18 24 29 THE IMPACT OF WHEN IS PRETRIAL WHERE DO WE GO FROM PRETRIAL DETENTION DETENTION HERE? ALTERNATIVES APPROPRIATE? TO AND SAFEGUARDS AROUND PRETRIAL DETENTION 33 35 37 CONCLUSION ENDNOTES REFERENCES 41 41 42 ACKNOWLEDGEMENTS AUTHOR NOTE MEMBERS OF THE EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY 04 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE “It was the smell of [] death, it was the death of a person’s hope, it was the death of a person’s ability to live the American dream.” That is how Dr. Nneka Jones Tapia described the Cook County Jail where she served as the institution’s warden (from May 2015 to March 2018). This is where we must begin. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY 05 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE Any discussion of pretrial detention must Let’s not forget that Kalief Browder spent acknowledge that we subject citizens— three years of his life in Rikers, held on presumed innocent of the crimes with probable cause that he had stolen a backpack which they are charged—to something containing money, a credit card, and an iPod that resembles death. -
Monitoring the Duty to Monitor
Corporate Governance WWW. NYLJ.COM MONDAY, NOVEMBER 28, 2011 Monitoring the Duty to Monitor statements. As a result, the stock prices of Chinese by an actual intent to do harm” or an “intentional BY LOUIS J. BEVILACQUA listed companies have collapsed. Do directors dereliction of duty, [and] a conscious disregard have a duty to monitor and react to trends that for one’s responsibilities.”9 Examples of conduct HE SIGNIFICANT LOSSES suffered by inves- raise obvious concerns that are industry “red amounting to bad faith include “where the fidu- tors during the recent financial crisis have flags,” but not specific to the individual company? ciary intentionally acts with a purpose other than again left many shareholders clamoring to T And if so, what is the appropriate penalty for the that of advancing the best interests of the corpo- find someone responsible. Where were the direc- board’s failure to act? “Sine poena nulla lex.” (“No ration, where the fiduciary acts with the intent tors who were supposed to be watching over the law without punishment.”).3 to violate applicable positive law, or where the company? What did they know? What should they fiduciary intentionally fails to act in the face of have known? Fiduciary Duties Generally a known duty to act, demonstrating a conscious Obviously, directors should not be liable for The duty to monitor arose out of the general disregard for his duties.”10 losses resulting from changes in general economic fiduciary duties of directors. Under Delaware law, Absent a conflict of interest, claims of breaches conditions, but what about the boards of mort- directors have fiduciary duties to the corporation of duty of care by a board are subject to the judicial gage companies and financial institutions that and its stockholders that include the duty of care review standard known as the “business judgment had a business model tied to market risk. -
What Is Corporate Law?
ISSN 1936-5349 (print) ISSN 1936-5357 (online) HARVARD JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS THE ESSENTIAL ELEMENTS OF CORPORATE LAW: WHAT IS CORPORATE LAW? John Armour, Henry Hansmann, Reinier Kraakman Discussion Paper No. 643 7/2009 Harvard Law School Cambridge, MA 02138 This paper can be downloaded without charge from: The Harvard John M. Olin Discussion Paper Series: http://www.law.harvard.edu/programs/olin_center/ The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract_id=####### This paper is also a discussion paper of the John M. Olin Center’s Program on Corporate Governance. The Essential Elements of Corporate Law What is Corporate Law? John Armour University of Oxford - Faculty of Law; Oxford-Man Institute of Quantitative Finance; European Corporate Governance Institute (ECGI) Henry Hansmann Yale Law School; European Corporate Governance Institute (ECGI) Reinier Kraakman Harvard Law School; John M. Olin Center for Law; European Corporate Governance Institute Abstract: This article is the first chapter of the second edition of The Anatomy of Corporate Law: A Comparative and Functional Approach, by Reinier Kraakman, John Armour, Paul Davies, Luca Enriques, Henry Hansmann, Gerard Hertig, Klaus Hopt, Hideki Kanda and Edward Rock (Oxford University Press, 2009). The book as a whole provides a functional analysis of corporate (or company) law in Europe, the U.S., and Japan. Its organization reflects the structure of corporate law across all jurisdictions, while individual chapters explore the diversity of jurisdictional approaches to the common problems of corporate law. In its second edition, the book has been significantly revised and expanded. -
Arkansas Agricultural Cooperative Associations
Arkansas Agricultural Cooperative Associations This research has been provided by Price Gardner and Blake Lewis with Friday Eldredge & Clark LLP, 400 West Capitol Avenue, Suite 2000, Little Rock, AK 72201, (501)376-2147; Email: [email protected] and [email protected] . This research is intended to provide detailed information on specific provisions of the Arkansas Agricultural Cooperative Associations Act. The table of contents provides a list of provision topics addressed. The descriptions of the statute provisions include legal citations to the specific part of the statute where the topic is addressed so users can easily look at the statute language. A URL for the statute is also provided when it is available. This research has been provided by a private individual and does not represent official policy of the U.S. Department of Agriculture or any other government agency. The research is presented only to provide summary information to persons interested in the state statutory treatment of Arkansas cooperatives. Individuals considering organizing a cooperative are advised to seek professional advice from an expert on cooperative law who is familiar with the specifics of the individual’s situation. 1 Table of Contents 1. Cooperative Statute: Policy, Purposes, Powers ........................................................................................ 9 1.1. State and Statute Title. ...................................................................................................................... 9 1.2. Statute Nickname, -
Judgment Rule Lindsay C
This article appeared in the Spring 2013 issue of Commercial & Business Litigation, Vol. 14 No. 3. ©2013 American Bar Association, 321 N Clark St, Chicago, Illinois 60654; (312) 988-5607. All rights reserved. Breaking Down the Business- Judgment Rule Lindsay C. Llewellyn In the wake of corporate bankruptcies, government bailouts, and shareholder losses resulting from the economic downturn of 2008, shareholders are increasingly turning to derivative suits in an effort to hold someone responsible for their financial losses. Corporate directors stand in a fiduciary relationship of trust and confidence with the corporation and its shareholders. As fiduciaries, corporate directors owe the corporation and its shareholders fiduciary duties of diligence and fidelity in performing their corporate duties. These fiduciary obligations include the duty of care and the duty of loyalty. “In essence, the duty of care consists of an obligation to act on an informed basis; the duty of loyalty requires the board and its directors to maintain, in good faith, the corporation’s and its shareholders’ best interests over anyone else’s interests.” Shoen v. SAC Holding Corp., 137 P.3d 1171, 1178 (Nev. 2006) (citing Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 360-61 (Del. 1993)). In bringing shareholder derivative suits, shareholders seek to impose liability on corporate directors for failing to carry out their corporate duties in accordance with this standard of care. An important and powerful defense to such derivative suits lies in the common law “business- judgment rule.” What Is a Shareholder Derivative Suit? A shareholder derivative action is not a cause of action in and of itself, such as breach of contract or breach of fiduciary duty. -
Robert T. Miller
Robert T. Miller Professor of Law Fellow and Program Affiliated Scholar F. Arnold Daum Fellow in Corporate Law Classical Liberal Institute University of Iowa College of Law New York University School of Law Address: 492 Boyd Law Building Address: 40 Washington Square South University of Iowa New York, NY 10012 Iowa City, IA 52242 Phone: (319) 335-9001 Phone: (319) 335-9001 Fax: (319) 335-9098 Fax: (319) 335-9098 Email: [email protected] Email: [email protected] Web: http://law.uiowa.edu/robert-t-miller Web: http://www.classicalliberalinstitute.org/ SSRN: http://ssrn.com/author=518229 Courses Taught: Business Associations Antitrust Securities Regulation Mergers & Acquisitions Contracts Legal Capstone Course Law & Economics Deals Corporate Finance Capitalism Academic and Professional Experience: Professor of Law and F. Arnold Daum Fellow of Corporate Law, University of Iowa College of Law, 2012 to present. Committees and Service to the Law School: Co-Chair, Status and Reputation Committee (2021-present) Chair, Promotion and Tenure Committee (2012-2015, 2017-2021; co-chair 2016-2017; member, 2018- present) Chair, Curriculum Committee (Spring 2017; member, 2016-2021) Chair, LAWR (Legal Writing) Promotion and Reappointment Committee (2019-2020) Chair, Instructional Faculty Promotion and Reappointment Committee (2019-present) Member, Enrollment Management Committee for Three-Year JD Applicants (2016-2017) Chair, Faculty Appointments Committee/Entry Level (2015-2016) Member, Faculty Appointments Committee (2014-2015, 2020-2021) Chair, -
Rise and Fall of the Ultra Vires Doctrine in United States, United Kingdom, and Commonwealth Caribbean Corporate Common Law: a Triumph of Experience Over Logic
DePaul Business and Commercial Law Journal Volume 5 Issue 1 Fall 2006 Article 4 Rise and Fall of the Ultra Vires Doctrine in United States, United Kingdom, and Commonwealth Caribbean Corporate Common Law: A Triumph of Experience Over Logic Stephen J. Leacock Follow this and additional works at: https://via.library.depaul.edu/bclj Recommended Citation Stephen J. Leacock, Rise and Fall of the Ultra Vires Doctrine in United States, United Kingdom, and Commonwealth Caribbean Corporate Common Law: A Triumph of Experience Over Logic, 5 DePaul Bus. & Com. L.J. 67 (2006) Available at: https://via.library.depaul.edu/bclj/vol5/iss1/4 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Business and Commercial Law Journal by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. The Rise and Fall of the Ultra Vires Doctrine in United States, United Kingdom, and Commonwealth Caribbean Corporate Common Law: A Triumph of Experience Over Logic Stephen J.Leacock* "Pure logical thinking cannot yield us any knowledge of the empiri- cal world; all knowledge of reality starts from experience and ends in it."1 2 I. INTRODUCTION In free market3 economies, corporate laws change over time. More- over, experience has taught us that some legislative enactments, when * Professor of Law, Barry University School of Law. Barrister (Hons.) 1972, Middle Temple, London; LL.M. 1971, London University, King's College; M.A. (Bus. Law) CNAA 1971, City of London Polytechnic (now London Guildhall University), London; Grad. -
Constraints on Pursuing Corporate Opportunities
Canada-United States Law Journal Volume 13 Issue Article 10 January 1988 Constraints on Pursuing Corporate Opportunities Stanley M. Beck Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation Stanley M. Beck, Constraints on Pursuing Corporate Opportunities, 13 Can.-U.S. L.J. 143 (1988) Available at: https://scholarlycommons.law.case.edu/cuslj/vol13/iss/10 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Constraints on Pursuing Corporate Opportunities Stanley M. Beck* The question of corporate opportunity is one of the most difficult and, at the same time, one of the most interesting with respect to fiduciary duties. The Anglo-Canadian courts, and to an extent the American courts, have had a difficult time establishing any clear guidelines. The Canadian courts have taken a strict fiduciary approach. For example, the law of trusts for children has been applied in corporate opportunity cases, and such "simple" cases as Keech v. Sandford I (from 1726) and the later case of Parker v. McKenna2 (from 1874) have been repeatedly cited by courts considering this issue. The language of Lord Justice James in Parkerv. McKenna was that the court was not entitled to receive any evidence as to whether the prin- cipal did or did not suffer an injury, for the "safety of mankind requires that no agent shall be able to put his principal to the danger"3 of such an inquiry.