Symposium, JOBS Act: The Terrible Twos – General Solicitation & Crowdfunding, the Next Frontier of Securities Regulation

On March 24th, 2014, The Fordham Corporate Law Center and the Fordham Journal of Corporate & Financial Law will hold its 19th Annual Symposium focusing... Read More

REVISION: Incomplete Organizations: Legal Entities and Asset Partitioning in Roman Commerce

In this chapter we analyze ancient Rome’s law of business entities from the perspective of asset partitioning, by which we mean the delimiting of creditor collection rights based on the distinction between business assets and personal assets. Asset partitioning, which is an essential legal attribute of modern business forms such as the partnership and the business corporation, reduces borrowing costs by simplifying credit-risk assessment and expediting insolvency proceedings. We find that ancient Roman business arrangements, such as the societas (very loosely, “partnership”) and the slave-run business endowed by the slaveowner with a peculium (a sum of capital), did not give business creditors the first claim to business assets, making these forms of organization non-entities according to the criterion of asset partitioning. It appears that the only true legal entity used to form profit-seeking firms was the societas publicanorum, which roughly resembled the modern limited …

LEAVE A COMMENT
POSTED IN Faculty Research

New: Contra Proferentem and the Role of the Jury in Contract Interpretation

Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem — the canon that requires construing or interpreting a contract against the drafter when ambiguities arise — is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside insurance law, its exceptions and limitations, the difficulty of knowing whether it is a rule for the judge or the jury to apply, the various forms the rule can take, and the difficulty of knowing whether it is a default or mandatory rule. We hope laying out these complexities here helps courts and commentators in the future achieve more consistency and nuance in their …

LEAVE A COMMENT
POSTED IN Faculty Research

New: Contra Proferentem and the Role of the Jury in Contract Interpretation

Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem — the canon that requires construing or interpreting a contract against the drafter when ambiguities arise — is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside insurance law, its exceptions and limitations, the difficulty of knowing whether it is a rule for the judge or the jury to apply, the various forms the rule can take, and the difficulty of knowing whether it is a default or mandatory rule. We hope laying out these complexities here helps courts and commentators in the future achieve more consistency and nuance in their …

LEAVE A COMMENT
POSTED IN Faculty Research

REVISION: The Law of War and the Responsibility to Protect Civilians: A Reinterpretation

Two seemingly unrelated crises implicating the law of war and the responsibility to protect civilians have arisen in recent years. In 2013, the United States considered military intervention without United Nations (“U.N.”) Security Council preapproval in Syria after discovering that the government had exterminated its own people with chemical agents. In 2014, Russia sent troops into Crimea, a part of Ukraine, to protect ethnic Russians that Russia claimed were in danger after a political coup in the country. In both cases, the military acts contemplated or undertaken were of dubious legality, albeit under different rubrics. This Article aims to show how analysis of the lawfulness of military intervention in Syria and Crimea is illuminated by recognizing that both are subspecies of the same problem and are thus controlled by one customary doctrine of international law governing the grounds for war. By custom, a sovereign state may use force in another unconsenting sovereign state …

LEAVE A COMMENT
POSTED IN Faculty Research

Fordham’s Business Law Practitioners Series: Andrew M. Calamari, Director of the New York Regional Office of the SEC

On October 21st, Fordham’s Business Law Practitioners Series For Students held their third event of the semester inviting Andrew M. Calamari to speak. Mr. Calamari is the Director of the New York Regional Office of the U.S. Securities and Exchange Commission. Mr. Calamari is also distinguished Fordham alum, graduating in 1985. His legal career began in private practice, as a litigation partner at Donovan Leisure Newton & Irvine. Before coming to the SEC in 2000, he worked for five years at his own firm, and co-authored a treatise on Complex Litigation as well as a chapter on securities litigation in a Matthew Bender treatise on securities law. His work at the SEC earned him immense recognition, including the Arthur F. Matthews Award in 2004, and the Stanley Sporkin Award, one of the SEC’s top awards for its enforcement officials, in 2009.

LEAVE A COMMENT :: TAGS , , ,
POSTED IN Banking & Finance, Broker-Dealer, Corporate Law, Financial Markets Regulation, Fordham Corporate Law Center, Government, Lectures Series, SEC Investigations, Securities Regulation

REVISION: The Artificial Collective-Action Problem in Lawsuits Against Insured Defendants

When negotiating to settle tort suits, defendants and their liability insurers often face a collective-action problem. The problem arises when the trial outcome is uncertain and the potential damages exceed the insurance policy limit. Settling such a lawsuit replaces an uncertain potential damages award with a smaller, certain settlement payment. As a result, settlement causes a larger proportion of the overall liability to fall within the policy limit and hence be the insurer’s responsibility. To prevent this liability shift, the insurer might reject some settlement demands that an uninsured defendant would have accepted, forcing unnecessary trials. To solve this problem, courts (and some insurance policies) place settlement duties on insurers. But lawsuits to enforce these duties generate litigation costs, and judicial errors can encourage settlements that overcompensate plaintiffs. An alternative solution would be to change the settlement approach. Currently, parties negotiate …

LEAVE A COMMENT
POSTED IN Faculty Research

REVISION: The Law of War and the Responsibility to Protect Civilians: A Reinterpretation

Two seemingly unrelated crises implicating the law of war and the responsibility to protect civilians have arisen in recent years. In 2013, the United States considered military intervention without United Nations (“U.N.”) Security Council preapproval in Syria after discovering that the government had exterminated its own people with chemical agents. In 2014, Russia sent troops into Crimea, a part of Ukraine, to protect ethnic Russians that Russia claimed were in danger after a political coup in the country. In both cases, the military acts contemplated or undertaken were of dubious legality, albeit under different rubrics. This Article aims to show how analysis of the lawfulness of military intervention in Syria and Crimea is illuminated by recognizing that both are subspecies of the same problem and are thus controlled by one customary doctrine of international law governing the grounds for war. By custom, a sovereign state may use force in another unconsenting sovereign state …

LEAVE A COMMENT
POSTED IN Faculty Research

Alibaba and the Minimal Impact of the Largest IPO Ever

On Friday, September 19, people from Beijing to New York could be seen celebrating the success of the Alibaba IPO. For months leading up to the offering, analysts and commentators had cautioned U.S. investors to be wary of the Chinese e-commerce giant. The skepticism was largely due to questions concerning the company’s corporate governance structure, known as a variable interest entity or “VIE”. The initial numbers and the subsequent celebrations, however, suggest that investors are not concerned. The stock (ticker symbol “BABA”) finished the trading day at $93.89, 38% above the initial set price of $68 and well above the average 26% IPO jump for U.S. listed technology and internet deals this year. This puts the company’s market value at $231 billion and, depending on whether underwriters exercise their stock options over the next couple of weeks, could make Alibaba the largest ever IPO in U.S. history. Despite the seemingly successful offering, however, the jury is still out on the soundness of individuals investing in VIEs, as it is yet to be seen whether the resurfaced questions surrounding the structure will spark any action by regulators.

LEAVE A COMMENT :: TAGS , , ,
POSTED IN Banking & Finance, Broker-Dealer, Capital Markets, Consumer Finance, Corporate Governance, Corporate Law, Emerging Growth Companies, Financial Markets Regulation, Fordham Corporate Law Center, Public Offerings, Securities Regulation

Commissioner Daniel M. Gallagher: The Securities and Exchange Commission – The Next 80 Years: The 15th Annual A.A. Sommer Jr. Lecture

Tonight, I’d like to discuss a topic that I believe would have been of critical interest to Al Sommer: the future – the next 80 years – at the SEC. Over the next eight decades, the SEC’s fate will be intertwined, as it always has been, with that of our capital markets. Despite robust market activity over the last few years, the U.S. capital markets, the manner in which they are regulated, and the SEC itself collectively face an existential threat: the encroaching imposition of so-called prudential regulation on markets wholly unsuited to that regulatory paradigm. To put it simply, the manner in which the Commission responds to this encroachment, as well as to the unprecedented, decade-long burden placed upon us by a hundred Dodd-Frank Act mandates,[1] will determine whether the SEC remains as relevant in the 21st century as it was in the 20th – and more importantly, whether our capital markets, still the best in the world despite an onslaught of self-inflicted frictions, can continue to be the drivers of economic growth and prosperity that they have been for so long.

LEAVE A COMMENT :: TAGS , ,
POSTED IN A.A. Sommer Jr. Lecture, Banking & Finance, Corporate Law, Dodd-Frank, Financial Markets Regulation, Fordham Corporate Law Center, Government, SEC Investigations, Securities Regulation

Business Law Practitioners Series: Judith A. McHale, From Manhattan to Mongolia: the Role of Law in my Career

Judith A. McHale ’79 returned to Fordham Law last Tuesday as part of the Corporate Law Center’s Business Law Practitioners Series. McHale, currently the President and CEO of Cane Investments, traced her path through the law in a discussion entitled “From Manhattan to Mongolia.”

LEAVE A COMMENT :: TAGS , , ,
POSTED IN BLPS, Corporate Law, Fordham Corporate Law Center

- Fordham Corporate Center