A Question of Costs: Considering Pressure on White-Collar Criminal Defendants

Because of the expense of defending white-collar criminal cases, individual corporate defendants can rarely fund their own defenses and often rely on their employers to pay their legal costs. Employers, however, often feel pressure to refuse to pay their employees\u27 attorneys\u27 fees. When employers decline to pay their employees\u27 defense costs, defendants can be, in effect, coerced into pleading guilty because they do not have the financial resources to defend themselves at trial. Commentators have discussed the problem of pressure on white-collar defendants but have not traced the cause of the pressure back to one of its most basic roots: criminalizing conduct that is prohibitively expensive for an individual to defend. Others have addressed the question of whether corporate behavior has been overcriminalized but have not focused on the high cost of defending these crimes as one of the key arguments against criminalizing the behavior in the first place. This Note intertwines the two strands of the debate over corporate crime: the strand evaluating the existence of and solutions to pressure on individual white-collar defendants and the strand questioning the overcriminalization of corporate law. This Note adds to both strands by focusing on one aspect, high defense costs, that contributes to the pressure, makes it unique to corporate crime as opposed to street crime, and puts it out of the reach of commonly suggested procedural fixes. The Note concludes that white-collar criminal prosecutions inherently place financial pressure on defendants, and legislatures should consider this pressure when deciding what behavior to criminalize

Directors\u27 Duties in Failing Firms

Despite many cases with seemingly contrary dicta, corporate directors of failing firms do not have special duties to creditors. This follows from the nature of fiduciary duties and the business judgment rule. Under the business judgment rule, the directors have broad discretion to decide what to do and in whose interests to act. There is some authority for a limited creditor right to sue on behalf of the corporation to enforce this duty. However, any such right does not make the duty one owed to creditors. The creditors individually may sue the corporation for breach of specific contractual, tort, and statutory duties, particularly on account of fraudulent conveyances. But the creditors are not owed general fiduciary protection even if they are subject to a special risk of abuse in failing firms

Larry Ribstein\u27s Fiduciary Duties

Larry Ribstein, throughout his remarkable scholarly career, developed a theory formed around his analysis that the end of fiduciary obligation is a near possibility. Understanding fiduciary obligations as a carefully defined term may indicate, however, that this fiduciary obligation can be a useful part of a wider selection of relationships than Ribstein allowed. This Article both considers Ribstein’s theory of fiduciary duty, and ultimately turns that same theory on its head by advocating the use of a narrow duty in a variety of contexts as opposed to a broad duty in a limited range of circumstance

Two Economists, Three Opinions? Economic Models for Private International Law - Cross Border Torts as Example

Many agree that private international law does a poor job of leading to good and predictable results. Can law and economics bring more scientific, objective foundations to the discipline? Economics, one may hope, can bring the conclusiveness to the field that doctrine could not. But even a fleeting review of existing studies reveals a discrepancy of views or economic approaches that mirrors the discrepancy in the traditional private international law doctrine. This article sets out to test whether different models lead to different outcomes. It makes arguments in three economic models - a private law model, an international law model, and a model combining the two. The subject area for this analysis is private international law of torts, more specifically the question of the law applicable to cross-border torts. The result is that the debate whether private international law is private law or (public) international law is replicated in the economic analysis of private international law. Rather than resolve problems of private international law, economic analysis reformulates them. This does not make economic analysis useless at all, but it puts into question its promise of objective neutral solutions

A License to Grow: Ending State, Local, and Some Federal Barriers to Innovation and Growth in Key Sectors of the U.S. Economy

Outlines price and entry controls that impede innovations that could lead to more efficient business models and growth in the legal, health, drug, education, and finance sectors. Surveys options for removing barriers, including state experimentation

Comment on Ribstein\u27s Incorporating the Hendricksons

This Essay discusses Larry Ribstein\u27s essay Incorporating the Hendricksons, which focuses on the differences between domestic and business relations. The author here argues that the convergence of such relations is improbable. He adds that Ribstein did not mention the possibility that a business marriage partner will transfer assets to a marital corporation. The author also addresses Kraakman and Hansmann\u27s thesis on the purpose of asset partition

Tribute to Larry Ribstein

A law school job talk for an entry-level candidate is an opportunity for the presenter to put his or her ideas before a faculty in the best possible light. A bit of give-and-take is part of the drill, but the candidate can usually expect the talk to stay more or less on course. My own first job talk, though, given at George Mason University more years ago than I\u27d like to admit, was attended by the thoroughly exceptional Larry Ribstein and so did not unfold in the usual way