Case Western Reserve law review最新文献

{"title":"The Hidden Structure of Fact-Finding","authors":"M. Spottswood","doi":"10.2139/SSRN.2226607","DOIUrl":"https://doi.org/10.2139/SSRN.2226607","url":null,"abstract":"This Article offers a new account of legal fact-finding based on the dual-process framework in cognitive psychology. This line of research suggests that our brains possess two radically different ways of thinking. “System 1” cognition is unconscious, fast, and associative, while “System 2” involves effortful, conscious reasoning. Drawing on these insights, I describe the ways that unconscious processing and conscious reflection interact when jurors hear and decide cases. Most existing evidential models offer useful insights about the ways that juries use relevant information in deciding cases but fail to account for situations in which their decisions are likely to be affected by irrelevant stimuli. The dual-process approach, by contrast, is able to explain both probative and prejudicial influences on decision making. As a demonstration, I use the dual-process framework to explain the surprising result in People v. Rivera, a case in which a jury convicted a man of rape and murder despite the admission of exonerating DNA evidence. This result, I suggest, was not the product of an unusually lazy or unreasonable jury but rather illustrates the way that our ordinary cognitive processes can lead us to endorse quite unreasonable results if primed using certain common prosecutorial strategies. After elaborating the dual-process model in a descriptive form, I then consider some of its normative implications. Many leading evidence scholars have argued that verdicts resting on “pure” or “naked” statistical evidence are problematic. Although the dual-process model of fact-finding is descriptive rather than normative, it nevertheless provides surprising insight into this debate by showing that our intuitive discomfort with verdicts that are based on purely statistical data may arise from the failure of such evidence to speak in terms that our unconscious, intuitive System 1 can process reliably. In such circumstances, intuitions about outcomes should be treated with caution. Thus, what unites the seemingly disparate examples of the Rivera trial and the naked statistical evidence debate is that, in both contexts, it feels right to do wrong.","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"64 1","pages":"131"},"PeriodicalIF":0.0,"publicationDate":"2013-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68006137","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}

{"title":"Auction Theory and Standstills: Dealing with Friends and Foes in a Sale of Corporate Control","authors":"Christina M. Sautter","doi":"10.2139/SSRN.2207693","DOIUrl":"https://doi.org/10.2139/SSRN.2207693","url":null,"abstract":"A fundamental issue in Delaware mergers & acquisitions (M&A) law is the extent to which a target company’s board of directors may restrict a sales process to extract value from bidders and grant a “winning bidder” certain deal protections to protect a transaction from being overbid. Standstill agreements are one such form of deal protection. Standstills prevent bidders from making or announcing a bid for the target without the target’s consent both during the sales process and for a period after the sales process is completed and the target has executed an agreement with a “winning bidder.” Recent 2011 and 2012 Delaware Court of Chancery rulings have placed a new spotlight on the use of standstill agreements in M&A deals and specifically in change of control transactions. In particular, these cases highlight the restrictiveness of some standstills and open up discussion as to how restrictive a standstill may be without violating a target company board of directors’ duty to maximize stockholder value. This Article makes a unique contribution because it is the first paper to apply auction theory in critiquing and evaluating the need for standstills in M&A transactions. Auction theory utilizes economics to design optimal bid-ding procedures and revenue enhancing auctions. The application of auction theory to standstills is particularly well suited as the execution of a standstill is often cited as resulting in increased value during the sales process. Using auction theory and recent Delaware case law as a foundation, this Article provides a new framework for the use of standstills. It argues that to the extent standstills provide an entry into the due diligence and general sales processes, standstills may help to enhance value. Moreover, the promise of standstill restrictions continuing post-signing may aid in incentivizing bidders to submit their highest offers during the pre-signing sale process. But the use of more restrictive standstills like those in which a bidder agrees not to request a waiver and a target agrees in advance not to waive a standstill (or Don’t Ask, Don’t Waive (DADW) standstills) should turn on whether strategic or financial bidders are involved in the process as well as the amount of pre-signing shopping of the target engaged in by the board. This Article provides a new framework for dealmakers and for courts taking into con-sideration those factors. Among other things, this framework suggests that if dealmakers are to continue their use of DADW standstills, that they be paired with a minimal fiduciary out and with a staggered termination fee.","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"64 1","pages":"521"},"PeriodicalIF":0.0,"publicationDate":"2013-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67989647","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}

{"title":"Developing Leadership Talent in Family Businesses: Embracing Risk or Playing It Safe","authors":"S. P. Miller","doi":"10.5465/AMBPP.2013.254","DOIUrl":"https://doi.org/10.5465/AMBPP.2013.254","url":null,"abstract":"[\"On-the-job experiences are emphasized as powerful developers of leadership talent in leadership and family business literature. Our qualitative study of 37 family business leaders from mid-market privately held family firms found that it is not just having experiences but the nature of those experiences that determines whether or not authentic leadership talent is actually developed, particularly in next-generation family enterprise leaders. The ?family effect,? the extent to which actors in a family firm embrace risk in the development of nextgeneration leaders, is identified as central to the development of leadership competencies. We propose a conceptual framework with four factors that promote and four factors that impede the development of leadership talent in family enterprises. Early leadership learning experiences, emotional and social intelligence, job assignments with real responsibility and accountability, and personal reflection promote the development of authentic leadership talent in family firms. Obligatory or entitled motivations for joining the family business, being shielded from risk and/or the consequences of failure, a family business environment characterized by unresolved conflict, and being promoted to positions without necessary qualifications impede the development of leadership talent, and are associated with family business leaders who are likely to hold what we have labeled ?pseudo leadership positions.?\"]","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"2013 1","pages":"11026-11026"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70696505","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}

{"title":"Enhancing Firm Profitability by Improving Director Dynamics","authors":"Solange Charas, J. Gaskin","doi":"10.5465/AMBPP.2013.13761ABSTRACT","DOIUrl":"https://doi.org/10.5465/AMBPP.2013.13761ABSTRACT","url":null,"abstract":"[\"Board performance research focused on individual director?s economically-motivated behaviors and outcomes has generated inconsistent and disappointing results. Most research does not consider the board as a team, despite recent calls for a focus on collective board processes and behaviors. As 90% of directors rate their individual performance at very effective but only 30% rate overall board performance at an equivalent level, it is obvious that this gap needs to be addressed. The discrepancy between individual and team performance effectiveness was the focus of this research, based on original data from 182 directors and their assessment of their board?s dynamic, team task performance efficacy, team potency and the impact of their activities as a board on firm profitability. Our findings show that director experience, social network and cultural intelligence quotient as well as their ability to achieve high levels of team interaction, thereby lowering information asymmetry, have a significant impact on profitability. We found that this dynamic as well as team potency had a positive impact on profitability, while the focus on task performance compliance quality had a significantly negative effect on profitability. The insights of this study should help boards and their advisors better focus their efforts to improve team dynamic, optimize board interactions and refocus their attention on value-creating activities. We also believe improving board team dynamics will have an unintended consequence of bring a level of individual and team satisfaction back to the boardroom.\"]","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"2013 1","pages":"13761-13761"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70696603","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}

{"title":"Entrepreneurial Innovation As A Learning System","authors":"D. Kolb, R. Gemmell, A. Somers","doi":"10.5465/AMBPP.2012.10702ABSTRACT","DOIUrl":"https://doi.org/10.5465/AMBPP.2012.10702ABSTRACT","url":null,"abstract":"We surveyed 172 technology entrepreneurs to explore links between learning style and learning flexibility and decision making behaviors hypothesized to produce entrepreneurial innovation and succes...","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"2012 1","pages":"10702"},"PeriodicalIF":0.0,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70696210","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}

{"title":"Hold On: The Remarkably Resilient, Constitutionally Dubious '48-Hour Hold'","authors":"Steven J. Mulroy","doi":"10.2139/SSRN.2101137","DOIUrl":"https://doi.org/10.2139/SSRN.2101137","url":null,"abstract":"For decades, various local jurisdictions used (and in some areas, still use) a constitutionally suspect procedure called a \"48-hour hold.\" A suspect is detained for up to 48 hours without charge while an investigation continues; after 48 hours, the suspect is either charged or released. The practice continues despite occasional criticism by courts, the bar, and the press. In many cases, this practice unconstitutionally detains persons without probable cause. Even where probable cause exists, the practice improperly circumvents rights to get bail, to get a prompt bail determination, and to be free of interrogation without the presence of counsel. While similar procedures may occur in other countries, it is contrary to American principles of criminal justice. Understanding why may also help in current debates over the proposed use of \"investigative holds\" of terrorism suspects.","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"194 1","pages":"815"},"PeriodicalIF":0.0,"publicationDate":"2012-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67911528","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}

{"title":"THE ORGANIZATIONAL DESIGN FOR PRICING AND ITS CONSEQUENCES ON RELATIVE FIRM PERFORMANCE","authors":"Stephan M. Liozu, R. Boland, Andreas Hinterhuber, Gary K. Hunter, A. Somers","doi":"10.5465/AMBPP.2012.10420ABSTRACT","DOIUrl":"https://doi.org/10.5465/AMBPP.2012.10420ABSTRACT","url":null,"abstract":"Despite strong evidence of substantial impact on the bottom line, most companies counter-intuitively neglect the pricing function – as do most scholars. Only 2% of all articles published in major marketing journals focus on pricing and scholars have long begged the question of how organizational and behavioral characteristics of firms affect the link between pricing practices and firm performance. To address these practical and theoretical deficits we surveyed 748 professionals involved in pricing at firms from around the world to measure the influence of five organizational factors on pricing orientation and firm performance identified in a prior qualitative phase of our research. The five factors were: 1) Championing behaviors, 2) pricing capabilities, 3) organizational confidence, 4) organizational change capacity, and 5) center-led pricing management. Results demonstrate that all five factors positively and significantly influence relative performance, suggesting that pricing champions able to design ...","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"2012 1","pages":"10420"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70696191","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}

{"title":"Communicating through Thick Boundaries: The Case of Informing National Policy Making","authors":"A. Wolfberg, R. Boland, K. Lyytinen","doi":"10.5465/AMBPP.2012.11155ABSTRACT","DOIUrl":"https://doi.org/10.5465/AMBPP.2012.11155ABSTRACT","url":null,"abstract":"[\"Organizations increasingly face competitive and security threats that require better intelligence to guide action. National policy makers face an especially pressing need for intelligence, and rely on complex, diverse information from many sources in monitoring their environment. The primary formal information system for conveying knowledge to government leaders is the system of national intelligence briefings, which collects data from a global network of analysts that is presented by a briefer to individual government leaders, in a short daily session. The quantity of information created by intelligence analysts far exceeds the capacity of a policy maker to assimilate, and the briefer has severe time restrictions for assembling and communicating the daily briefing. In this important, yet highly constrained setting, our exploratory research question is: ?How does the briefer experience communication with policy makers, and how does the briefer act to ensure that the information produced by intelligence analysts is useful to and understood by policy makers?? We conducted a qualitative study of boundary spanning dyad chains reaching from field analysts to policy makers at high levels in the United States federal government, and found: (1) a low degree of shared context between significantly different social and professional worlds; (2) a four-phase communication pattern crossing multiple boundaries, multiple times; and (3) a common 3-step embedded structure within the communication pattern in which the briefer tried to create shared meaning. Despite the extreme setting, we propose that the 3-step embedded structure our subjects enacted can be applied to improving communication for any manager across a wide range of thick boundaries in profit, non-profit and government boundary spanning contexts.\"]","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"2012 1","pages":"11155"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70696280","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}

{"title":"The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition","authors":"Roger Colinvaux","doi":"10.2139/SSRN.1726407","DOIUrl":"https://doi.org/10.2139/SSRN.1726407","url":null,"abstract":"The Supreme Court’s decision in Citizens United v. Federal Election Commission makes a Supreme Court challenge to the tax law rule that prohibits charities from involvement in political activities more likely, and a reexamination of the political speech of charities necessary. Part I of the Article surveys the history of the political activities prohibition in order to emphasize that it was not a reactionary policy but quite considered, and that there are strong State interests supporting it, including protection of the definition of charity from further dilution. Part II of the Article analyzes Citizens United in detail and argues that if the Supreme Court considers a challenge to the political activities prohibition, Citizens United is distinguishable: the purpose of the political activities prohibition is not to suppress speech but to define charity; the legal setting is tax and not campaign finance; unlike the campaign finance rule, violation of the political activities prohibition is not criminal; and the political activities prohibition is by nature a rule associated with a tax status rather than a ban on corporate speech. Accordingly, the political activities prohibition, unlike the campaign finance rule, is not a burden on speech and therefore is constitutional. Part III of the Article discusses cautionary notes to the analysis of Part II, and explains that even if there is a constitutional defect to the political activities prohibition, the political activities limitation on the charitable deduction nonetheless would survive. Regardless of the constitutionality of the political activities prohibition, Part IV examines a number of possibilities for a charitable tax status in which political activity is allowed, and argues that the current rule is the best option. The Article concludes that the prohibition represents the evolution of a century of wrestling with the subject of political activity and charity, and the wisdom that the two are not compatible. Such wisdom should not be contravened.","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"10 1","pages":"685"},"PeriodicalIF":0.0,"publicationDate":"2012-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67728602","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}

{"title":"From Baker v. Carr to Bush v. Gore, and Back","authors":"N. Lund","doi":"10.2139/SSRN.1981758","DOIUrl":"https://doi.org/10.2139/SSRN.1981758","url":null,"abstract":"This essay advances three propositions. First, Baker v. Carr and its early one person, one vote progeny were wrongly decided. Second, in light of the case law generated by these cases, Bush v. Gore was correctly decided. Third, even without Baker and its progeny, the decision in Bush v. Gore would still have been legally correct.Justice Harlan proved the first proposition in his dissenting opinions in the early cases, and the majority never even made an effort to respond to his arguments and evidence. I have established the second proposition in a series of articles that have received a similar form of silent treatment from the legal academy. I believe that the third proposition is novel, and that everyone should agree with it even if they disagree about the first two.","PeriodicalId":80897,"journal":{"name":"Case Western Reserve law review","volume":"62 1","pages":"947"},"PeriodicalIF":0.0,"publicationDate":"2012-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67826947","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}