Journal of Business and Technology Law最新文献_第2页

Journal of Business and Technology Law Pub Date : 2007-11-16 DOI: 10.2139/SSRN.1029667

R. Booth

{"title":"What is a Business Crime","authors":"R. Booth","doi":"10.2139/SSRN.1029667","DOIUrl":"https://doi.org/10.2139/SSRN.1029667","url":null,"abstract":"Criminal prosecution has been used with increasing frequency recently in connection with a variety of business failures and other financial offenses. Indeed, it appears that there are few such offenses that cannot be prosecuted criminally even though they also give rise to civil remedies. While some such offenses seem to be quite serious frauds, others seem to be as minor as getting the accounting rules wrong. Thus, the question addressed in this essay is how to define a business crime and what should be the proper role of criminal prosecution in connection with business offenses. I start with the proposition that we should criminalize conduct only when lesser remedies do not work to deter the offense. I then describe the array of private civil remedies available, ranging from simple compensatory damages to punitive damages to class actions and derivative actions and find that there are few business offenses that cannot be well addressed by these devices. I conclude that as a general matter private civil remedies are much more efficient at addressing business and financial crimes. The expansion of criminal prosecution may be due to some extent to problems with the way civil remedies work in practice, but for the most part it is difficult to explain except as a result of failure to understand the role of criminal law and to define financial crimes with any precision.","PeriodicalId":319600,"journal":{"name":"Journal of Business and Technology Law","volume":"122 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128902074","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 8

Information Policy for the Library of Babel 巴别塔图书馆的信息政策

Journal of Business and Technology Law Pub Date : 2007-09-08 DOI: 10.31228/osf.io/7ctre

James Grimmelmann

引用次数: 4

The Duty to Creditors Reconsidered - Filling a Much Needed Gap in Corporation Law 重新考虑债权人义务——填补公司法急需的空白

Journal of Business and Technology Law Pub Date : 2006-11-01 DOI: 10.2139/SSRN.886772

R. Booth

{"title":"The Duty to Creditors Reconsidered - Filling a Much Needed Gap in Corporation Law","authors":"R. Booth","doi":"10.2139/SSRN.886772","DOIUrl":"https://doi.org/10.2139/SSRN.886772","url":null,"abstract":"The most fundamental question of corporation law is to whom does the board of directors of a corporation owe its fiduciary duty. Recently, the question has tended to be whether and under what circumstances the board of directors has the duty to maximize stockholder wealth. But if a corporation is insolvent (or close to it), business decisions designed to maximize stockholder wealth may result in a reduction of creditor wealth. Although the conventional wisdom is that creditors must protect themselves by contractual means, there is a substantial body of case law that says that creditors can assert claims sounding in fiduciary duty. Until recently, most such decisions have come from the bankruptcy courts. The state courts, who have primary jurisdiction with regard to the interpretation of corporation law, have had few opportunities to say otherwise. But in Credit Lyonnais Bank Nederland v. Pathe Communications (1991) and Production Resources Group v. NCT Corporation (2004), the Delaware Court of Chancery confirmed that the protections of fiduciary duty extend to creditors (in addition to stockholders) - at least when a corporation is in fact insolvent and possibly when it may be rendered so by the business decision in question - on the theory that the board of directors ultimately has the duty to maximize the value of the firm as a whole. These unfortunate decisions have led creditors and commentators to argue for a wholly new body of creditor rights and have encouraged further loose talk from the bankruptcy courts who must apply state law in this difficult setting. The fallacy inherent in extending the protections of fiduciary duty to creditors is that stockholders themselves enjoy no remedy except in situations in which the corporation is for sale - a situation in which there is little danger of harm to creditors. The board of directors is otherwise under no enforceable duty to maximize stockholder wealth. And the CEO typically has a strong incentive to ensure the survival of the firm. In situations in which the board of directors has failed to maximize stockholder wealth, the stockholders are protected by the market for corporate control rather than a legal remedy. Under the business judgment rule, the stockholders cannot challenge such decisions in court. Neither should the creditors be able to do so. Thus, even though creditors might favor a rule that favors them when the board of directors is tempted to bet the farm on a risky business strategy, they have no need for a remedy. Fortunately, the cases in which creditors have prevailed up to now are cases in which they should have prevailed anyway under fraudulent transfer law. But the law would be better served if the courts made it clear once and for all that fiduciary duty is about the stockholders and no one else.","PeriodicalId":319600,"journal":{"name":"Journal of Business and Technology Law","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127015479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation 米尔伯格起诉的虚伪:需要一个连贯的框架来支付诉讼中的合作

Journal of Business and Technology Law Pub Date : 1900-01-01 DOI: 10.2139/SSRN.955952

Bruce H. Kobayashi, Larry E. Ribstein

引用次数: 3