Corporate law and scholarship generally assume that professional managers control public corporations, while shareholders play only a weak and passive role. As a result, corporate officers and directors are understood to be subject to extensive fiduciary duties, while shareholders traditionally have been thought to have far more limited obligations. Outside the contexts of controlling shareholders…
Legal principles that are almost right are often more mischievous than those that are completely wrong. What is transparently wrong is interpreted narrowly (or ignored altogether) and is likely to be repealed. An almost-right principle invites sloppy thinking, vague generalities, and a general distortion of the otherwise sound ideas that lie close by. An example…
Keynes taught years ago that international cash flows are always political. Western response to the enormous increase in the number and the assets of sovereign wealth funds (SWFs), and other government-directed investment vehicles that often get lumped together under the SWF label, proves Keynes right. To their most severe critics, SWFs are a threat to…
This Article is about how federal white collar crime law is put to the test of defining corruption. We focus on the concept of “corruption” while acknowledging that it is hopelessly vague and that the legal system, so long as it identifies more specific goals for criminal or civil legislation, bears no intellectual responsibility to…
When it comes to compliance with the Foreign Corrupt Practices Act (FCPA), multinational companies that adopt a “don't ask, don't tell” policy may come to regret their hands-off approach. Compliance with the FCPA's laws against bribing foreign officials has recently come under increased scrutiny by the Securities and Exchange Commission (SEC), the United States Department…
Drafted in the shadow of the Holocaust, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defined the international crime of genocide for the first time. Central to the Genocide Convention, and to the crime that it defined, is a unique focus on groups. Raphaël Lemkin, the inventor of the…
Courts have called the decision a “bombshell,” a “renaissance,” and the dawning of a “new day” in the Sixth Amendment's Confrontation Clause jurisprudence. News reports have called the decision “an earthquake rocking America's criminal justice foundations.” Four years ago, in Crawford v. Washington, the United States Supreme Court revisited the scope and purposes of the…
During the recent wave of private equity buyouts of public companies, boards of directors for selling companies have been increasingly turning to go-shop provisions as a means of fulfilling the board's Revlon duty to maximize shareholder value. A go-shop provision operates as a post-signing market check by allowing a selling board to actively solicit offers…
