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Volume 65 - Number 1
ARTICLES
Did Corporate Governance "Fail" During the 2008 Stock Market Meltdown? The Case of the S&P 500
65(2): 001 - 065 (November 2009)
In 2008, share prices on U.S. stock markets fell further than they had during anyone year since the 1930s. Does this mean corporate governance "failed"? This Article argues generally "no," based on a study of a sample of companies at "ground zero" of the stock market meltdown, namely the thirty-seven firms removed from the iconic S&P 500 index during 2008.
Nibbling at the Edges - Regulation of Short Selling: Policing Fails to Deliver and Restoration of an Uptick Rule
65(2): 067 - 094 (November 2009)
This Article reviews recent SEC proposals and enactments, including restoration of an uptick or similar "sales price restriction" rule, or installation of circuit breakers adding restrictions on short selling of stock following a precipitous price decline in the stock, and enactment of formerly temporary regulations requiring market participants (broker-dealers mostly) to close fails to deliver after three days rather than thirteen days.
ESSAY
Caveat Auditor: Back to First Principles
65(2): 095 - 106 (November 2009)
The Sarbanes-Oxley Act of 2002 substantially revised the rules governing auditors of public companies, in an effort to counter the auditing weaknesses exposed in Enron, WorldCom, and similar fiascos. Among the most important changes were a substantial upgrade in the role and responsibility of corporate audit committees and the creation of a new agency, the Public Company Accounting Oversight Board. This article takes the position that rather than focusing on audit committees, effective reform of auditing lies in a significant step-up in the responsibility of auditors, by returning to the original purpose of an audit: to provide a fair and meaningful a picture as possible of a company's financial performance.
REPORTS
Report of the Task Force of the ABA Section of Business Law Corporate Governance Committee on Delineation of Governance Roles and Responsibilities
65(2): 107 - 151 (November 2009)
The Task Force on Delineation of Governance Roles and Responsibility to examine whether, in the large U.S. public corporation, the decision rights and responsibilities of shareholders and boards of directors are shifting and, if so, the implications of any such shift. Seasoned lawyers representing shareholder, corporate, and academic perspectives comprise the Task Force and have engaged in a series of meetings over the past ten months to discuss shareholder and board roles - roles that are under increasing regulatory pressures in the light of the financial crisis.
Changes in the Model Business Corporation Act - Proposed Amendments to Shareholder Voting Provisions Authorizing Remote Participation in Shareholder Meetings and Bifurcated Record Dates
65(2): 153 - 160 (November 2009)
The proposed amendments address shareholder voting
in two principal ways. First, the amendments add a new section 7.09 that permits shareholders to participate in annual and special shareholder meetings by means of
remote communication to the extent the board of directors authorizes such participation and subject to guidelines and procedures the board adopts. Section 7.05 is also proposed to bed amended to address notice issues where the board of directors
authorizes such shareholder participation by remote communication. Second, a series
of amendments to sections 7.03, 7.05, 7.07 and 7.20 of the Act are proposed that would
authorize directors to bifurcate the record date for receipt of notice of a meeting from the record date for determining the shareholders entitled to vote at that meeting.
Report on Selected Legal Opinion Issues in Venture Capital Financing Transactions
65(2): 161 - 192 (November 2009)
This report is a commentary on customary practice with respect to third-party legal opinions given in venture capital financing transactions, defined for this purpose as equity investments in privately held companies by professional investors. Although the Report sometimes refers to these companies as "venture-backed companies," this Report is not restricted to the financing of technology companies as such term might imply. An objective of this Report is to give opinion practitioners guidance on whether specific opinions are appropriate.
SURVEY
Corporate Compliance Survey Survey (November 2009)
65(2): 193 - 226 (November 2009)
This is the fifth survey from the Corporate Compliance Committee. This Survey summarizes significant legal developments from the last year regarding corporate
compliance and ethics programs, which consist of an organization’s code of
conduct, policies, and procedures designed to achieve compliance with applicable
legal regulations and internal ethical standards. Part I reviews significant regulatory
developments, and Part II reviews signifi cant case law developments.
SURVEY
Survey of the Law of Cyberspace: Introduction (Nov 2009)
65(2): 227 - 228 (November 2009)
This is the introduction to the survey summarizes that the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008.
Survey of the Law of Cyberspace: Intellectual Property Cases 2008
65(2): 229 - 250 (November 2009)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008. This piece focuses on intellectual property developments.
Survey of the Law of Cyberspace: Domain Name Cases 2008
65(2): 251 - 260 (November 2009)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008. This piece summarizes cases dealing with domain name issues.
Federal Payroll, Gift, and Prepaid Card Developments: FDIC Deposit Insurance Eligibility and the Credit CARD Act of 2009
65(2): 261 - 269 (November 2009)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008. This piece discusses updates pertaining to stored-value products.
Developments in the Regulation of Prepaid Products Under State Money Transmitter Licensing Laws
65(2): 271 - 283 (November 2009)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008. This piece discusses generally how state money transmitter licensing laws currently address prepaid cards.
Survey of Privacy Law Developments in 2009: United States, Canada, and the European Union
65(2): 285 - 307 (November 2009)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008. This piece summarizes developments in privacy law updates in the U.S., Canada and the EU.
Survey of Significant Developments in Internet Gambling (Nov 2009)
65(2): 309 - 316 (November 2009)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008. This piece discusses developments in internet gambling.
Electronic Contracting Cases 2008-2009
65(2): 317 - 327 (November 2009)
This is part of a survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008. This piece reviews electronic contracting cases decided between June 15, 2008, and June 15, 2009.
Survey - Cyberspace Law - November 2009
65(2): 227 - 327 (November 2009)
This is the complete survey that summarizes the significant legal developments Cyberspace Law since the Cyberspace Law Committee’s last survey in 2008.
