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On Corporate Law Federalism: Threatening the Thaumatrope -- The Business Lawyer, Volume 61, Number 1
The Business Lawyer, Volume 61, Number 1 -- The Dilemma That Should Never Have Been: Minority Freeze Outs in Delaware
61(1): 095 - 133 (November 2005)
This article suggests that current initiatives that weaken the practical vitality of the privilege in the corporate setting do not take into account the realities of attorney-client communications in that setting do not take into account the realities of attorney-client communications in that setting, and that such efforts may be undercut the effectiveness of corporate and transactional lawyers in promoting legal compliance by their corporate clients. The article further suggests that the lessons of Upjohn Company v. United States concerning the importance of the corporate attorney-client privilege have become obscured in the wake of recent corporate scandals and that those lessons should inform the current debate.
Charitable Contributions and the FCPA: Schering Plough and the Increasing Scope of SEC Enforcement -- The Business Lawyer, Volume 61, Number 1
61(1): 155 - 177 (November 2005)
The first two parts of this Article will try to explain how and why the pattern of dramatic regulatory interventions by federal lawmakers after a major scandal, together with more nuanced ongoing regulation by the states. The final part of the article (1) assess the likely effectiveness, that is, the merits of the recent Sarbanes-Oxley Act and other recent governance reforms; (2) considers the mode of American regulation, in particular, the reliance on courts and federally imposed mandatory rules, in contrast to the more norms-based approach used in England for important issues such as takeover regulation; and (3) concludes by briefly considering the scope of American corporate law and the role of corporate ethics.
Successor Liability and Bankruptcy Sales Revisited - A New Paradigm
The Regulation of Specialists and Implications for the Future -- The Business Lawyer, Volume 61, Number 1
61(1): 389 - 398 (November 2005)
The Boston Bar Association’s Streamline Form of Closing Opinion and an introduction to the form by the authors.
61(1): 399 - 429 (November 2005)
The Committee on Corporate Laws of the ABA Section of Business Law develops, and from time to time proposes, changes in the Model Business Corporation Act. This iteration of proposed amendments to Chapters 8 and 10 relate to voting by shareholders for the election of directors.
61(1): 431 - 432 (November 2005)
The introduction to the Survey of the Law of Cyberspace from the November 2005 issue of The Business Lawyer.
61(1): 433 - 446 (November 2005)
Beginning in 1999, when the New Jersey Superior Court held in Caspi v. Microsoft Network, L.L.C. that a forum selection clause in a click-wrap agreement could be enforced, courts have been faced with a small but steady stream of cases involving the enforceability of contracts entered into electronically. The years 2004 and 2005 were no exception, with one major browse-wrap case, a number of interesting click-wrap cases, and several notable international developments. In this Survey, we discuss the development of electronic contracting law over the past two years.
61(1): 447 - 469 (November 2005)
In the recent tradition of the Cyberspace Law Committee’s Intellectual Property Law Subcommittee, this survey article presents the leading cases of 2004 and 2005 involving intellectual property law issues related to the Internet and electronic commerce. Space does not allow for a comprehensive review of all such cases. Instead, this article highlights those cases that, in the collective opinion of a number of Committee members, represent the most significant and interesting developments of the past year.
61(1): 471 - 516 (November 2005)
Security and privacy developments during the year under review have been turbulent for organizations and their legal counsel. Although the security incident at ChoicePoint may prove to be memorable, the year ended with substantial however incremental, increases in the standards for best practices. Counsel, who may previously have recommend that minimal compliance with legal requirements for information security would suffice, might now advise that an organization should raise the standards reflected in its security policies and adopt proactive, best practices for data governance. Our review seeks to highlight to the most significant developments and to identify lessons that deserve to be considered when advising clients.
The Business Lawyer - November 2005, vol. 61, no 1; Survey - Cyberspace Law - November 2005