The Journal of corporation law最新文献

{"title":"Managers' Fiduciary Duties in Financially Distressed Corporations: Chaos in Delaware (and Elsewhere)","authors":"Rutheford B. Campbell, Christopher W. Frost","doi":"10.2139/SSRN.900904","DOIUrl":"https://doi.org/10.2139/SSRN.900904","url":null,"abstract":"The inherent conflict between creditors and shareholders has long occupied courts and commentators interested in corporate governance. Creditors holding fixed claims to the corporation's assets generally prefer corporate decision making that minimizes the risk of firm failure. Shareholders, in contrast, have a greater appetite for risk, because, as residual owners, they reap the rewards of firm success while sharing the risk of loss with creditors.Traditionally, this conflict is mediated by a governance structure that imposes a fiduciary duty on the corporation's managers - its officers and directors - to maximize the value of the shareholders' interests in the firm. In this traditional view, officers, and directors serve as agents of the shareholders and thus are charged with a fiduciary duty to maximize the value of the principals' ownership interests. Under this model of corporate governance, managers are not agents for the company's creditors and thus owe no fiduciary duty to act in the best interests of creditors.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"32 1","pages":"491-525"},"PeriodicalIF":0.0,"publicationDate":"2008-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67866489","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 Non-Uniformity of Uniform Laws","authors":"Bruce H. Kobayashi, Larry E. Ribstein","doi":"10.2139/SSRN.998281","DOIUrl":"https://doi.org/10.2139/SSRN.998281","url":null,"abstract":"We present theory and evidence evaluating the work of the National Conference of Commissioners on Uniform State Laws (NCCUSL). Based on an analysis of Uniform Limited Liability Company Acts (ULLCA) promulgated in 1994 and 2006, we show that NCCUSL not only failed to move state laws toward uniformity, but reduced state uniformity that can arise in the absence of NCCUSL. We also present an institutional explanation of NCCUSL's strategy based on the provisions and history of the 2006 ULLCA. We show that the very NCCUSL institutions that are designed to produce uniformity actually may tend to undermine it.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"35 1","pages":"327"},"PeriodicalIF":0.0,"publicationDate":"2007-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67936237","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":"Competition in the Mutual Fund Industry: Evidence and Implications for Policy","authors":"John C. Coates, R. G. Hubbard","doi":"10.2139/SSRN.1005426","DOIUrl":"https://doi.org/10.2139/SSRN.1005426","url":null,"abstract":"Since 1960 the mutual fund industry has grown from 160 funds and $18 billion in assets under management to over 8,000 funds with $10.4 trillion in assets. Yet critics - including Yale Chief Investment Officer David Swensen, Vanguard founder Jack Bogle, and New York Governor Eliot Spitzer - call for more fund regulation, claiming that competition has not protected investors from excessive fees. Starting in 2003, the number of class action suits against fund advisors increased sharply, and, consistent with critics' views, some courts have excluded or treated skeptically evidence of competition and comparable fees of other funds. Skepticism about fund competition dates to the 1960s, when the SEC accepted the view that market forces fail to constrain advisory fees, in part because fund boards rarely fire advisors. In this article, we show that economic theory, empirical evidence, and careful analysis of the laws and institutions that shape mutual funds refute this view. Fund critics overlook the most salient characteristic of a mutual fund: redeemable shares. While boards rarely fire advisors, fund investors may fire advisors at any time by redeeming shares and switching into other investments. Industry concentration is low, new entry is common, barriers to entry are low, and empirical studies - including new evidence presented in this article - show higher advisory fees significantly reduce fund market shares, and so constrain fees. Fund performance is consistent with competition exerting a strong disciplinary force on funds and fees. Our findings lead us to reject the critics' views in favor of the legal framework established by §36(b) of the Investment Company Act and the lead case interpreting that law (the Gartenberg decision), while suggesting Gartenberg is best interpreted to allow the introduction of evidence regarding competition between funds.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"33 1","pages":"151"},"PeriodicalIF":0.0,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1005426","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68122086","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 Undercivilization of Corporate Law","authors":"A. Hurt","doi":"10.2139/SSRN.965871","DOIUrl":"https://doi.org/10.2139/SSRN.965871","url":null,"abstract":"This article restructures the current debate surrounding the \"overcriminalization\" of corporate law by comparing the powerful tools of federal prosecutors with the sometimes insurmountable procedural impediments their civil counterparts, private plaintiffs, must overcome in private litigation surrounding the same corporate misconduct. Although the past five years have seen prosecutors accumulating over 1000 indictments of corporate officers, the same years have seen a decline in the ability of shareholder plaintiffs to receive civil redress for the same wrongs. I frame my analysis in the lexicon of statistical error. Which system, the criminal system or the civil system, is erring in creating more false positives or false negatives? If a court is to determine whether a corporate defendant is guilty, then a false positive finding by the court is a \"Type I\" error. However, if the defendant actually is culpable, but a court finds the defendant not culpable, a false negative, we say that the system has created a \"Type II\" error. No system, either a criminal law system or a civil system, can eliminate both Type I and Type II errors. Traditionally, the public has found Type I errors in criminal law fairly intolerable, and has preferred to err on the side of Type II errors. On the other hand, because civil penalties do not threaten liberty and livelihoods as much as criminal penalties, our system has been more tolerant of Type I errors in private litigation. However, post-2002, changes in prosecutorial strategy, substantive laws, and sentencing guidelines have combined to create a criminal law system that creates an intolerable number of Type I errors in prosecutions of corporate misconduct. Ironically, due to laws creating additional obstacles for private plaintiffs in both federal securities law litigation and state law fiduciary duty litigation, the civil system creates an unusually high number of Type II errors in trials for the same or similar misconduct. This article argues that not only is this prosecutorial paradox adverse to traditional preferences regarding protections of criminal defendants, but it is also potentially dangerous to vulnerable shareholders. As the public outcry regarding overcriminalization causes prosecutors and legislators to decrease criminal prosecutions, investors will be left with no other recourse but a private litigation system that is currently \"undercivilized.\"","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"33 1","pages":"361"},"PeriodicalIF":0.0,"publicationDate":"2007-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67913485","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 Evolving Partnership","authors":"Larry E. Ribstein","doi":"10.2139/SSRN.940653","DOIUrl":"https://doi.org/10.2139/SSRN.940653","url":null,"abstract":"Versions of this article were prepared for conferences in 2001 and 2006 in Europe dealing with the reform of private company law. The basic point is that recent U.S. law holds important lessons for Europe as it embarks on private company reform and confronts the jurisdictional competition regime enabled by Centros and other cases. The article shows that this competition is preferable to a single set of business association rules issued by a central planner. U.S. law has evolved through a bottom-up process of experimentation, in which firms can pick suitable rules by making both \"horizontal\" choices among the various jurisdictions and \"vertical\" choices among business forms available within jurisdictions. New and more efficient legal structures have evolved that regulators could not have envisioned only a few years ago. The article describes partnership type firms, contrasting both the traditional and new varieties and the partnership form with the corporate form. It then discusses the forces that have shaped partnership in the United States, the evolution in partnership terms wrought by these competitive forces, and implications of this process for European law.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"26 1","pages":"819"},"PeriodicalIF":0.0,"publicationDate":"2006-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67898591","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":"Mutual Fund Advisory Fees: The Cost of Conflicts of Interest","authors":"J. Freeman, Stewart L. Brown","doi":"10.2139/SSRN.923879","DOIUrl":"https://doi.org/10.2139/SSRN.923879","url":null,"abstract":"In the early 1970's, America's mutual fund industry was suffering net redemptions, meaning it was contracting in size. Fund marketing efforts were in disarray, thus prompting the Securities and Exchange Commission (SEC) to embark on a special study analyzing the problems then plaguing the industry. From that starting point, the SEC moved to loosen restrictions on fund marketing in order to foster a more competitive environment. One consequence of this loosening was the explosive growth in mutual funds. Today's industry boasts more than 10,000 funds, with assets exceeding $7 trillion, an average annual asset growth rate since 1974 exceeding twenty percent. A consequence of this staggering growth is that fund sponsors, the SEC, fund investors, and the courts must now confront a new wave of challenges. Despite its phenomenal marketing success, the fund industry now finds aspects of its conduct under attack from various quarters. The popular press and a prominent regulator, Eliot Spitzer, are focusing attention on the industry's fee structure and the perceived inadequacy of mutual fund governance, including the gap between prices charged funds for advisory services versus prices fetched elsewhere in the economy for those same services. This article examines whether the chief product that shareholders buy when they invest in mutual funds - professional investment advice - is being systematically over-priced by fund managers. The emphasis is on advisory fees imposed on equity mutual funds. Part II explains how the industry's unique management structure accounts for the alleged lack of price competition in the delivery of management advice perceived by the industry's detractors. Part III examines two questions related to economies of scale in the fund industry. First, do economies of scale exist for the delivery of investment management services to equity fund shareholders? Second, if so, are those economies being shared fairly with the funds' owners by the funds' agents, the investment advisors? Part IV studies causes for the status quo, including the industry's statutory scheme, the quality of the SEC's regulatory efforts, and the reception given fund critics by the courts. The Article concludes with a set of proposals for changing the present competitive environment in which fund advisory fees are set, disclosed, and evaluated.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"26 1","pages":"609"},"PeriodicalIF":0.0,"publicationDate":"2006-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67885505","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":"Perspectives on Corporate Governance: After Dura : Causation in Fraud-on-the-Market Actions","authors":"M. Fox","doi":"10.1017/CBO9780511763076.010","DOIUrl":"https://doi.org/10.1017/CBO9780511763076.010","url":null,"abstract":"On April 19, 2005, the Supreme Court announced its unanimous opinion in Dura Pharmaceuticals, Inc. v. Broudo,1 concerning what a plaintiff must show to establish causation in a Rule 10b-5 fraud-on-the-market suit for damages. The opinion had been awaited with considerable anticipation, being described at the time of oral argument in the Financial Times, for example, as the \"most important securities case in a decade.\"2 After the opinion was handed down, a representative of the plaintiffs' bar lauded it as a \"unanimous ruling protecting investors' ability to sue.\"3 A representative of the defendants' bar equally enthusiastically hailed it as \"a significant victory for public companies and others named as defendants in securities fraud cases.\"4 This Article seeks to ascertain the opinion's real significance and to provide a framework for resolving the issues that remain open to be decided by future courts. In the tradition of Bob Clark's treatment of Rule 10b-5 issuer misstatement cases, this framework recognizes that these issues involve difficult tradeoffs that defy perfect solutions.5 The Supreme Court's grant of certiorari in Broudo v. Dura Pharmaceuticals came against the backdrop of years of highly confusing lower court decisions concerning what a plaintiff needs to show to establish causation in a fraud-on-the-market suit. This confusion had arisen, I will argue, because the lower courts had tried to analyze causation in fraud-on-the-market cases using the twin concepts of \"transaction causation\" and \"loss causation.\" These concepts had been originally developed in connection with causation determinations in cases based on traditional reliance. Traditional reliance-based cases, unlike fraud-on-the-market cases, involve the plaintiff establishing that defendant's misstatement induced the plaintiff to enter into what has turned out to be a losing transaction. In such cases, transaction causation was satisfied by the very showing of traditional reliance, i.e., that the plaintiff would not have purchased but for the misstatement.6 Loss causation in these cases involved, in turn, an additional showing that the purchased security declined in value from what was paid (or was sold at a loss) and that the decline or loss was in some way reasonably related to the falsity of the statement that induced the purchase.7 The function of the loss causation requirement, like the function of proximate cause in actions for negligence, was to prevent the wrongdoer from being responsible for all the consequences for which his action was a \"but for\" cause, i.e., all the losses, however unrelated to the misstatement, that the plaintiff might suffer over time as a result of purchasing this security. Fraud-on-the-market actions such as Dura are very different from traditional reliance-based actions. The plaintiff in a traditional reliance-based action is typically a purchaser involved in either a face-to-face transaction in shares of a non-publicly traded issuer or a","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"31 1","pages":"829"},"PeriodicalIF":0.0,"publicationDate":"2006-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511763076.010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57093072","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":"Pay Without Performance and the Managerial Power Hypothesis: A Comment","authors":"Bengt Holmström","doi":"10.2139/ssrn.899096","DOIUrl":"https://doi.org/10.2139/ssrn.899096","url":null,"abstract":"Executive compensation and corporate governance problems need to be seen in a larger historical context than is commonly done. The proximate causes of corporate scandals and executive pay problems have been identified, but the real drivers have not. A need for corporate restructuring, which emerged already in the 1970s, led to the remarkable rise in shareholder influence and the relentless pursuit for shareholder value. It placed exceptional demands on boards and led to extreme pay schemes that appear to have served the restructuring purposes well, but had unintended and unfortunate side-effects. In contemplating pay and governance reforms, it is essential to keep in mind the longer chain of events to avoid naive corrective measures that do not take into account the information and incentive constraints under which the various constituents and bodies in the larger governance system, especially the boards and shareholders, operate. Some of the recent advice on executive compensation seems very misguided in a longer historical perspective as is the push for extensive shareholder intervention rights.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.899096","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67865350","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":"Pay Without Performance: A Market Equilibrium Critique","authors":"R. Hubbard","doi":"10.2139/SSRN.868513","DOIUrl":"https://doi.org/10.2139/SSRN.868513","url":null,"abstract":"This paper is based on the author's comments at the Columbia University Symposium on Bebchuk and Fried's \"Pay without Performance: The Unfulfilled Promise of Executive Compensation.\" The paper offers the author's perspective on the book as well as a different view on two issues: first, the starkly drawn differences between the arm's length bargaining model versus the managerial power model; and, second, the authors' preference for reduced-windfall options over restricted stock.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.868513","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67846601","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":"Pay Without Performance: The Institutional Shareholder Perspective","authors":"Orin Kramer","doi":"10.2139/SSRN.869804","DOIUrl":"https://doi.org/10.2139/SSRN.869804","url":null,"abstract":"This paper is based on the author's comments at the Columbia University Symposium on Bebchuk and Fried's \"Pay without Performance: The Unfulfilled Promise of Executive Compensation.\" The paper discusses the book and the problems of executive compensation from the perspective of institutional investors.","PeriodicalId":83094,"journal":{"name":"The Journal of corporation law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.869804","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847880","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}