Government Ethics and Bailouts: The Past, Present, and Future
By Nicole Elsasser Watson. Full text here.
Continue ReadingThe Financial Crisis of 2008-2009: Capitalism Didn't Fail, but the Metaphors Got a "C"
By Jeffrey M. Lipshaw. Full text here. The first panel’s topic within the symposium on the financial meltdown of 2008–2009 is the deliciously broad question: “Did capitalism fail?” I have taken it as an invitation to ponder not the merits and demerits of modern global financial systems, but instead to continue my assessment of how…
Continue ReadingWho Benefited from the Bailout?
By Jonathan G. Katz. Full text here. The Troubled Asset Relief Program (TARP) was created to respond to a financial panic. Some might say that it was created in panic. Congress appropriated a huge sum of money, gave the Secretary of the Treasury enormous latitude to spend the money, and provided ambiguous, and, some might say,…
Continue ReadingFiduciary-Based Standards for Bailout Contractors: What the Treasury Got Right and Wrong in TARP
By Kathleen Clark. Full text here. Congress authorized the Treasury Department to use outside entities (contractors and financial agents) to implement the TARP bailout program. Treasury embraced this authority, engaging in the wholesale delegation of the administration of TARP to these outsiders. While outsourcing government work is common, one aspect of Treasury’s outsourcing is not: its…
Continue ReadingCompromised Fiduciaries: Conflicts of Interest in Government and Business
By Claire Hill & Richard Painter. Full text here. In both business and government, we can distinguish between two types of conflicts. One type traditionally and more effectively dealt with by law is a direct conflict, involving self-interest narrowly construed. Two common examples are the government official who is negotiating for a private sector job with…
Continue ReadingGovernment Governance and the Need to Reconcile Government Regulation with Board Fiduciary Duties
By Lisa M. Fairfax. Full text here. Corporate governance reforms strive to shore up directors’ roles, not only seeking to ensure that boards have sufficient incentives to engage in effective oversight, but also aiming to ensure that boards are held accountable for their oversight failures. The newest wave of reforms is no exception. The current financial…
Continue ReadingUncomfortable Embrace: Federal Corporate Ownership in the Midst of the Financial Crisis
By Steven M. Davidoff. Full text here. The Article traces the terms of the government’s private ownership during the financial crisis, and provides a near-term critique of the government’s corporate ownership experience. It concludes that the government largely achieved its economic and social goals. The government ultimately saved the financial system, stalled a financial panic, and…
Continue ReadingDodd-Frank: Quack Federal Corporate Governance Round II
By Stephen M. Bainbridge. Full text here. The question before us is whether Dodd-Frank’s corporate governance provisions, like those of SOX, are mere quackery. Part I of the Article focuses on the problem of quack corporate governance regulation in the abstract. What are the defining characteristics of a quack law? Why would Congress adopt such laws?…
Continue ReadingNote: Insufficient Government Protection: The Inescapable Element in Domestic Violence Asylum Cases
By Elsa M. Bullard. Full text here. Domestic violence asylum applicants have spent years struggling to demonstrate they are a particular social group within the meaning of refugee statutes and thus worthy of asylum in the United States. Recent statements by the Department of Homeland Security (DHS) and a favorable outcome for the applicant in In…
Continue ReadingNote: The Problem with Waste: Delaware's Lenient Treatment of Waste Claims at the Demand Stage of Derivative Litigation
By Jamie L. Kastler. Full text here. This Note addresses the Delaware courts’ treatment of waste claims at the demand stage of derivative litigation. Recent Delaware opinions indicate that waste is part of the fiduciary duty of good faith. This means that directors are not protected from claims of waste by section 102(b)(7) exculpation clauses…
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