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Articles 1 - 29 of 29
Full-Text Articles in Law
Optimizing The World’S Leading Corporate Law: A 20-Year Retrospective And Look Ahead, Lawrence Hamermesh, Jack B. Jacobs, Leo E. Strine Jr.
Optimizing The World’S Leading Corporate Law: A 20-Year Retrospective And Look Ahead, Lawrence Hamermesh, Jack B. Jacobs, Leo E. Strine Jr.
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In a 2001 article (Function Over Form: A Reassessment of Standards of Review in Delaware Corporation Law) two of us, with important input from the other, argued that in addressing issues like hostile takeovers, assertive institutional investors, leveraged buyouts, and contested ballot questions, the Delaware courts had done exemplary work but on occasion crafted standards of review that unduly encouraged litigation and did not appropriately credit intra-corporate procedures designed to ensure fairness. Function Over Form suggested ways to make those standards more predictable, encourage procedures that better protected stockholders, and discourage meritless litigation, by restoring business judgment rule …
Reconstructing The Corporation: A Mutual-Control Model Of Corporate Governance, Grant M. Hayden, Matthew T. Bodie
Reconstructing The Corporation: A Mutual-Control Model Of Corporate Governance, Grant M. Hayden, Matthew T. Bodie
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The consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are …
Exclusionary Megacities, Wendell Pritchett, Shitong Qiao
Exclusionary Megacities, Wendell Pritchett, Shitong Qiao
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Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” …
Before International Tax Reform, We Need To Understand Why Firms Invert, Michael S. Knoll
Before International Tax Reform, We Need To Understand Why Firms Invert, Michael S. Knoll
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A wave of corporate inversions by U.S. firms over the past two decades has generated substantial debate in academic, business, and policy circles.
The core of the debate hinges on a couple of key economic questions: Do U.S. tax laws disadvantage U.S.-domiciled companies relative to their foreign competitors? And, if so, do inversions improve the competitiveness of U.S. multinational firms both abroad and at home?
There is unfortunately little, if any, empirical work directly determining whether U.S.-based MNCs are currently tax-disadvantaged compared to their foreign rivals, or measuring the amount by which (if any) U.S.-based MNCs improve their competitive position …
International Cooperation And Organizational Identities: The Evolution Of The Asean Investment Regime, Sungjoon Cho, Jürgen Kurtz
International Cooperation And Organizational Identities: The Evolution Of The Asean Investment Regime, Sungjoon Cho, Jürgen Kurtz
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This article first conceptualizes the ASEAN Investment Regime (AIR) as an Interstate Cooperative Regime (ICR), defined as a stable interstate cooperative nexus on a particular regulative subject, comprising the regulation of foreign investment in this particular case. It then seeks to explain the evolution of AIR in terms of its identity formation. In doing so, this article employs three ideal types of cultural logic - Hobbesian, Lockean and Kantian - across each stage of AIR’s evolution, largely overlapping with the three main IR theories of neorealism, neoliberal institutionalism and constructivism, respectively. Using those models, we find a clear evolutionary pathway …
Sharing Public Safety Helicopters, Henry H. Perritt Jr.
Sharing Public Safety Helicopters, Henry H. Perritt Jr.
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No abstract provided.
First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen
First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen
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No abstract provided.
Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen
Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen
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No abstract provided.
Product Life Cycle Theory And The Maturation Of The Internet, Christopher S. Yoo
Product Life Cycle Theory And The Maturation Of The Internet, Christopher S. Yoo
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Much of the recent debate over Internet policy has focused on the permissibility of business practices that are becoming increasingly common, such as new forms of network management, prioritization, pricing, and strategic partnerships. This Essay analyzes these developments through the lens of the management literature on the product life cycle, dominant designs, technological trajectories and design hierarchies, and the role of complementary assets in determining industry structure. This analysis suggests that many of these business practices may represent nothing more than a reflection of how the nature of competition changes as industries mature. This in turn suggests that network neutrality …
All Charities Are Property-Tax Exempt, But Some Charities Are More Exempt Than Others, Evelyn Brody
All Charities Are Property-Tax Exempt, But Some Charities Are More Exempt Than Others, Evelyn Brody
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Attention from the media notwithstanding, the nonprofit sector continues to achieve remarkable success in state supreme courts and statehouses in defending property-tax exemptions. But budget pressures remain. While the intermediate use of “payments in lieu of taxes” has not yet become a systematic compromise solution, PILOTs are attracting growing interest from local taxing jurisdictions. This Article highlights three issues— who decides the parameters of exemption, legislatures or courts; what are the specific factors and vulnerable subsectors; and how exemption is granted or withheld in practice—and concludes with several PILOT case studies. The Appendix sets forth a fifty-one-jurisdiction review of state …
Hedge Funds In Corporate Governance And Corporate Control, Marcel Kahan, Edward B. Rock
Hedge Funds In Corporate Governance And Corporate Control, Marcel Kahan, Edward B. Rock
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Hedge funds have become critical players in both corporate governance and corporate control. In this article, we document and examine the nature of hedge fund activism, how and why it differs from activism by traditional institutional investors, and its implications for corporate governance and regulatory reform. We argue that hedge fund activism differs from activism by traditional institutions in several ways: it is directed at significant changes in individual companies (rather than small, systemic changes), it entails higher costs, and it is strategic and ex ante (rather than intermittent and ex post). The reasons for these differences may lie in …
Labor Unions: A Corporatist Institution In A Competitive World, Michael L. Wachter
Labor Unions: A Corporatist Institution In A Competitive World, Michael L. Wachter
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Union membership, as a percentage of the private sector workforce, has been in decline for 50 years. I argue that the cause of this unrelenting decline is a single, fundamental factor – the change in the United States economy from a corporatist-regulated economy to one based on free competition. Most labor commentators have explained the decline by a confluence of unrelated economic and legal forces. Labor economists typically stress economic explanations, which vary from compositional shifts in the job structure to increased competition both domestically and internationally. On the other hand, labor law commentators naturally focus on labor law explanations, …
Charity Governance: What’S Trust Law Got To Do With It? (Symposium), Evelyn Brody
Charity Governance: What’S Trust Law Got To Do With It? (Symposium), Evelyn Brody
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No abstract provided.
Introduction To Symposium, Who Guards The Guardians?: Monitoring And Enforcement Of Charity Governance (With D. Reiser), Evelyn Brody
Introduction To Symposium, Who Guards The Guardians?: Monitoring And Enforcement Of Charity Governance (With D. Reiser), Evelyn Brody
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No abstract provided.
The Charity In Bankruptcy And Ghosts Of Donors Past, Present, And Future (Symposium), Evelyn Brody
The Charity In Bankruptcy And Ghosts Of Donors Past, Present, And Future (Symposium), Evelyn Brody
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The bankruptcy of a charity represents the clash of two policy regimes: charity law's willingness to preserve assets for the public purpose determined by the donor as against bankruptcy law's desire to maximize assets for distribution to creditors. As a general rule, assets will be distributed to creditors; as the courts say, 'a man must be just before he is generous.' However, when a charitable donee goes out of existence or otherwise becomes unable to perform a charitable trust or restricted gift, the courts will try to identify those charitable assets that are restricted in such a manner that they …
Whose Public?: Parochialism And Paternalism In State Charity Law Enforcement, Evelyn Brody
Whose Public?: Parochialism And Paternalism In State Charity Law Enforcement, Evelyn Brody
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This piece was inspired by the increasing tendency of State attorneys general – backed up by courts and legislatures – to effectively confiscate the assets of wealthy nonprofits through overreaching enforcement actions. The article develops a legal framework for ascertaining the proper State role. It reviews many case studies including, most notoriously, the thwarted diversification of the Milton Hershey School Trust out of Hershey Foods Corporation (an investment worth over $5 billion) – thereby preserving the local operations of a publicly traded company. While few state attorneys general have the funding and inclination to engage in aggressive charity enforcement, the …
Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen
Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen
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In the late 1990s, the U.S. Environmental Protection Agency (EPA) conducted what the agency considered to be a "bold experiment" in regulatory reinvention, bringing representatives from six industrial sectors together with government officials and NGO representatives to forge a consensus on innovations in public policy and business practices. This paper assesses the impact of the agency's "experiment" - called the Common Sense Initiative (CSI) - in terms of the agency's goals of improving regulatory performance and technological innovation. Based on a review of CSI projects across all six sectors, the paper shows how EPA achieved, at best, quite modest accomplishments. …
The Twilight Of Organizational Form For Charity: Musings On Norman Silber, A Corporate Form Of Freedom: The Emergence Of The Modern Nonprofit Sector (Book Review), Evelyn Brody
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No abstract provided.
Corporate Finance, Corporate Law And Finance Theory, Peter H. Huang, Michael S. Knoll
Corporate Finance, Corporate Law And Finance Theory, Peter H. Huang, Michael S. Knoll
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No abstract provided.
Charities In Tax Reform: Threats To Subsidies Overt And Covert, Evelyn Brody
Charities In Tax Reform: Threats To Subsidies Overt And Covert, Evelyn Brody
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Fundamental tax reform would do far more damage to charities than the obvious repeal of the deduction for charitable contributions. Over the decades, charities have quietly garnered billions of dollars worth of indirect benefits. For example, the largest tax expenditure - the exclusion from workers' income of employer-provided health insurance - has fattened nonprofit hospitals, and the new tuition tax credits promise to spur tuition inflation. Tax reform presents an opportunity to eliminate tax subsidies and enact any desired direct expenditures for specific public goods and activities. However, converting tax expenditures to direct outlays would likely take the form of …
Hocking The Halo: Implications Of The Charities' Winning Briefs In Camps Newfound/Owatonna, Inc., Evelyn Brody
Hocking The Halo: Implications Of The Charities' Winning Briefs In Camps Newfound/Owatonna, Inc., Evelyn Brody
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In Camps Newfound/Owatonna, the petitioner charity – with important assistance from friends-of-the-court charities – persuaded the Supreme Court to overturn a Maine statute that granted property tax exemption only to those charities primarily serving state residents. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 117 S. Ct. 1590 (1997). Given this statute's facial discrimination, why was victory a 5-4 squeaker? The charities naturally reasoned that coming within the Commerce Clause requires proving that charities engage in commerce (particularly interstate commerce). In their focus on the financial impact of the discriminatory statute, however, the charities never offered a positive construct of property-tax …
Introduction To Nonprofit Symposium Issue, Evelyn Brody
Introduction To Nonprofit Symposium Issue, Evelyn Brody
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No abstract provided.
Of Sovereignty And Subsidy: Conceptualizing The Charity Tax Exemption (Symposium), Evelyn Brody
Of Sovereignty And Subsidy: Conceptualizing The Charity Tax Exemption (Symposium), Evelyn Brody
All Faculty Scholarship
No abstract provided.
Of Sovereignty And Subsidy: Conceptualizing The Charity Tax Exemption, Evelyn Brody
Of Sovereignty And Subsidy: Conceptualizing The Charity Tax Exemption, Evelyn Brody
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This piece explores the broad financial relationship between the public and the charitable sectors. Tax exemption operates as a peculiar subsidy - offering the greatest benefits to charities carrying on the most profitable activities and owning the most valuable property. Perhaps, then, the property tax and income tax exemption of charities can be explained by a 'sovereign' view of the charitable sector. Resembling the federal tax treatment of state and local governments, exemption for charities respects the independence of the nonprofit sector, and minimizes the involvement of charities in the political process. Unfortunately, the long history of Anglo American philanthropy …
The Limits Of Charity Fiduciary Law, Evelyn Brody
The Limits Of Charity Fiduciary Law, Evelyn Brody
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Trustees of charitable trusts and directors of nonprofit corporations operate under legal regimes designed for their for-profit cousins. In the absence of private beneficiaries or shareholders to look after their own interests, however, charity fiduciaries frequently escape accountability for their self-dealing and neglect or mismanagement. Few charities have members endowed with voting rights, and state attorneys general have limited resources to devote to monitoring the nonprofit sector. Similarly, at the federal level, the Internal Revenue Service is a tax collector, not a policing agency (although its new powers to tax excess benefits will undoubtedly draw it further into charity operations). …
Hocking The Halo: Implications Of The Charities' Winning Briefs In Camps Newfound/Owatonna, Inc. (Symposium), Evelyn Brody
Hocking The Halo: Implications Of The Charities' Winning Briefs In Camps Newfound/Owatonna, Inc. (Symposium), Evelyn Brody
All Faculty Scholarship
No abstract provided.
Agents Without Principals: The Economic Convergence Of The Nonprofit And For-Profit Organizational Forms, Evelyn Brody
Agents Without Principals: The Economic Convergence Of The Nonprofit And For-Profit Organizational Forms, Evelyn Brody
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Are nonprofit organizations 'different' from firms with owners? The accepted economic account holds that nonprofits are more trustworthy than business firms because nonprofits cannot distribute profits to owners. However, all firms, nonprofit or proprietary, have converged into similar patterns of behavior. Firms, whether nonprofit or proprietary (or even public), are subject to many of the same economic forces, such as resource dependency, institutional isomorphism, and organizational slack. Even in the absence of shareholders somebody still has to run the enterprise: to decide what objectives to pursue, and how; to manage its financial and human resources; and to span the boundaries …
Institutional Dissonance In The Nonprofit Sector, Evelyn Brody
Institutional Dissonance In The Nonprofit Sector, Evelyn Brody
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Our political and economic system contains three seemingly distinct sectors: public, proprietary, and nonprofit. This division masks serious issues of who should provide welfare services, schooling and health care; who should build infrastructure; who should control private wealth. The nonprofit law takes a laissez faire approach to permissible nonprofit activities, leading many to lament the increasing 'commercialization' of the nonprofit sector. However, an examination of historical as well as current activities engaged in by firms in all three sectors reveals that the basis terms of the social debate are eternal, while institutions dominant at different times and in different places …
Some Corporate And Securities Law Perspectives On Student-Athletes And The Ncaa, David A. Skeel Jr.
Some Corporate And Securities Law Perspectives On Student-Athletes And The Ncaa, David A. Skeel Jr.
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No abstract provided.