The Figure in the Landscape: A Comparative Sketch of Directors’ Self-Interested Transactions

Focusing on Part X of the UK\u27s Companies Act 1985, DeMott draws contrasts with corporate law in the US. Part X has a style and feel that is distinctly different from counterpart provisions in the US corporate statutes

Friends with Benefits: Redefining Personal Gain in Insider Trading Under Salman v. United States

Since Congress has not enacted a statute outlawing insider trading, or the trading of securities based on non-public information, outright, courts have struggled to define what constitutes insider trading. The Supreme Court held that a fiduciary duty was breached when the insider privy to the information receives a “personal benefit.” This Commentary analyzes a pending Supreme Court case, Salman v. United States, which addresses whether pecuniary gain is needed to constitute the personal benefit necessary for insider trading, or if certain relationships are enough for the tip to inherently create a personal benefit for the insider. The author argues that a “personal benefit” can occur when there is (1) a quid pro quo or (2) the relationship between insider and tippee is intimate enough to automatically lead to a benefit for the insider. This conclusion follows Supreme Court precedent and is consistent with the policies for outlawing insider trading

The Separation of Corporate Law and Social Welfare

A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social welfare. The distance between the welfarist enterprise of a half century ago and the concerns that motivate today’s corporate legal theory has been widening ever since. This Essay examines the widening gulf. It compares the vision of the corporation and of the role it plays in society that prevailed during the immediate post-war era, before the fulcrum years of the 1980s, with the very different vision we have today, and traces the path we took from there to here. It will close with a brief prediction regarding corporate law’s future

Striking a Balance Between Privacy and Online Commerce

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework for assessing the tradeoff between speech and privacy, important values will be shortchanged by courts assessing the constitutionality of commercial data regulation. As Professor Ghosh points out, a judicial response that simply argues for the marketplace to sort all this out on its own is undertheorized and insufficient

Striking a Balance Between Privacy and Online Commerce

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework for assessing the tradeoff between speech and privacy, important values will be shortchanged by courts assessing the constitutionality of commercial data regulation. By themselves, the three perspectives articulated by Professor Ghosh do not pinpoint how to balance data commercialization and online privacy. Courts deciding data privacy cases will need to go further, building doctrinal structures that specifically take these policy interests into account. This does not mean, however, that courts will need to reinvent the wheel. In this Response, I explore an already existing doctrinal structure for considering rights in information. I identify one intellectual property regime — right of publicity — and two of its particular doctrinal innovations — the “transformativeness” test and the “newsworthiness” test. These tests are used by courts to determine when an entity’s First Amendment right to speak should trump a celebrity’s property interest in her name, likeness, or other information surrounding her persona. The tests are not perfect, but they may prove useful to future courts struggling to reconcile new privacy regulations with the expressive interests of commercial speakers

“Fine Distinctions” in the Contemporary Law of Insider Trading

William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding its new-found commitment to federalism—which I call the (fictional) “Cary-Powell compromise”—because it accepted the central premise on which the expressive function of insider trading regulation is based: manifestations of greed and lack of self-restraint among the privileged, especially fiduciaries or those closely related to fiduciaries, threaten to undermine the official identity of the public markets as open and fair. But enough time may have passed that we may have lost sight of the compromise associated with this fiction and started acting as if insider trading really is the worst kind of deceit. The result is pressure on doctrine to expand, using anything plausible in the 10b-5 toolkit. The aim is to tie this concern more clearly to the uneasy deceptiveness of insider trading, first using somewhat familiar examples such as the debate over whether possession or use is required for liability and the supposed overreach of Rule 10b5-2. Each of these settings brings us back to the centrality of intent, reminding us that the Cary-Powell compromise has in mind a form of purposefulness that is closely tied to greed and opportunism, making insider trading a sui generis form of securities fraud. That takes us to the most jarring recent development in insider trading law, the emergence (particularly in SEC v. Obus) of recklessness as an alternative basis for liability

Corporate Personhood and the Rights of Corporate Speech

My objective here is to provide a little historical background on business corporations and their place in First Amendment law. In the course of that overview, I will also make a few observations that I believe can be helpful in thinking about corporate speech rights. First, I will argue that one aspect of the constitutional status of corporations-the notion of corporate personhood-has not played the central role in shaping corporate speech rights that some believe. Corporations have free speech rights, but they are more limited than those held by individuals. Second, I will argue that there is not a single right of corporate speech. Rather, there are at least four distinct free speech rights held by corporations. Each one is subject to its own set of rules and restrictions, and there are a number of inconsistencies in the reasoning of the relevant decisions, breeding a set of doctrines with little coherence. I will conclude with some thoughts on the effectiveness of limiting corporate speech in an age of loose corporate law