Law Commons^™

The Sec And The Future Of Corporate Governance, Mark J. Loewenstein

Publications

No abstract provided.

Foreword: Understanding The Place Of Limited Liability Companies In The Spectrum Of Business Forms, Charles O'Kelley

Faculty Articles

This article is the forward to the Symposium on Oregon's Limited Company Act. For most of this century, state law has provided participants in jointly-owned business ventures with three principal business forms the corporation, the general partnership, and the limited partnership. In the past four years, over two-thirds of the states, including Oregon, have enacted legislation authorizing a new business form-the limited liability company (LLC). It appears likely that the LLC will soon supplant the two forms of partnership as a principal business form, and that it will challenge the corporation as the form of choice for closely held firms.

The Sec And The Institutional Investor: A Half-Time Report, John C. Coffee Jr.

Faculty Scholarship

Nothing that the Securities and Exchange Commission ("SEC") has done in recent years has been as controversial or significant as its efforts to reform the proxy rules to permit greater communication among shareholders. Nothing that it has undertaken recently has also been left as incompletely or equivocally realized as these same efforts. That the SEC's efforts at facilitating shareholder communication have been controversial and significant is by now a commonplace observation. That they are incomplete and equivocal requires more explanation. Although the discovery that an agency is behaving inconsistently is hardly a revelation, more than politics appears to be at …

Multinational Corporations, Private Codes, And Technology Transfer For Sustainable Development, Michael S. Baram

Faculty Scholarship

Sustainable development requires the application of advanced technological expertise in the activities of multinational corporations. Private codes of environmental conduct are proliferating throughout the developed world, ensuring the application of the required technological expertise. However, multinational corporations generally do not follow these voluntary codes in developing nations. Several strategies are available to extend the effective application of private codes in the developing world. Reliance on private codes of environmental conduct enhanced by supportive strategies provides a pragmatic policy option for sustainable development.

The Pros And Cons Of A Self-Regulatory Organization For Advisers And Mutual Funds, Tamar Frankel

Faculty Scholarship

Congress is seriously considering bills to establish self-regulatory organizations (SROs) for investment advisers (advisers) and investment companies (Funds). These bills would require members of the investment management industry to regulate themselves under the watchful eye of the Securities and Exchange Commission, similar in approach to the regulation of broker-dealers by the National Association of Securities Dealers, Inc. (NASD) and the securities exchanges. Proposals to establish SRO for investment advisers have arisen before. However, those proposals did not cover Funds and their advisers,

The Forgotten Link: Control In Section 482, Wayne M. Gazur

Publications

The foundation of international taxable income allocations between related parties is formed by the imposition of an arm's length standard. The presence of "control" over a person invokes this measure. The author examines the implications of control presented by continuing developments in the global business environment, including the rise of cooperative interfirm arrangements.

Relationship Investing: Will It Happen? Will It Work?, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Transfers From Retirement Plans To Charities And Charitable Remainder Trusts: Laws, Issues And Opportunities, Christopher R. Hoyt

Faculty Works

No abstract provided.

Administrative Aspects Of State Corporation Law, Tom Arnold

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Decoupling Sales Law From The Acceptance-Rejection Fulcrum, Jody S. Kraus

Faculty Scholarship

The determination of whether the buyer has accepted or rejected goods provides the sales law solution to the problems of allocating burden of proof, assigning duties to salvage goods in failed transactions, and reducing systematic undercompensation. But one doctrine is unlikely to provide the best solution to each of these distinct problems. Decoupling the rules addressing burden of proof, salvage, and undercompensation from the doctrines of acceptance and rejection, and thus from one another, would significantly improve sales law.

This strategy has a distinguished precedent in the history of sales law. Karl Llewellyn based his objection to the doctrine of …

Section 338 And Its Foolish Consistency Rules - The Hobgoblin Of Little Minds, Douglas A. Kahn

Articles

The purposes of this Article are to examine whether there is any longer a reason for concern because a target corporation can choose selected assets for nonrecognition and to what extent the 1994 regulations properly deal with potentially abusive circumventions of tax goals. Before examining the current status of the consistency requirements, the historical background that led to the adoption of Section 338 and the operation of the section is discussed. The historical background includes: the judicially created Kimbell-Diamond rule, the codification and modification of that rule by the old version of Section 334(b)(2), the operation of the old version …

Thinking To Be Paid Versus Being Paid To Think, Merritt B. Fox

Faculty Scholarship

In the first chapter of The Economic Structure of Corporate Law, Frank Easterbrook and Daniel Fischel make an arresting statement:

... [P]eople who are backing their beliefs with cash are correct; they have every reason to avoid mistakes, while critics (be they academics or regulators) are rewarded for novel rather than accurate beliefs. Market professionals who estimate these things wrongly suffer directly; academics and regulators who estimate wrongly do not pay a similar penalty. Persons who wager with their own money may be wrong, but they are less likely to be wrong than are academics and regulators, who are wagering …

Institutions As Relational Investors: A New Look At Cumulative Voting, Jeffrey N. Gordon

Faculty Scholarship

The hostile takeover may have become a receding memory, but the problem that the market in corporate control purported to address nevertheless remains. In a world of imperfect competition, the product, capital, and managerial markets may temporarily indulge suboptimal performance by a firm's managers. As cases such as GM, Sears, American Express, and IBM illustrate, a firm with a substantial franchise and substantial financial reserves can sustain deteriorating economic performance over a significant period, resulting in a long slow slide of economic values. Shareholders and society generally will benefit from a mechanism that replaces the firm's incumbent managers well before …

Insider Trading Deterrence Versus Managerial Incentives: A Unified Theory Of Section 16(B), Merritt B. Fox

Faculty Scholarship

Part I of this article assesses the social costs of a crude rule of thumb. Because section 16(b) applies to a given class of paired transactions, it deters both transactions based on inside information and transactions not so based. Each time section 16(b) is stretched to include a class of paired transactions, it deters some additional innocent transactions. This side effect will take the form of officers' and directors' purchasing fewer shares in their own companies and refusing to accept as large a portion of their compensation in a form based on share price. There are strong theoretical and empirical …

Hail Britannia?: Institutional Investor Behavior Under Limited Regulation, John C. Coffee Jr., Bernard S. Black

Faculty Scholarship

A central puzzle in understanding the governance of large American public firms is why most institutional shareholders are passive. Why would they rather sell than fight? Until recently, the Berle-Means paradigm – the belief that separation of ownership and control naturally characterizes the modern corporation – reigned supreme. Shareholder passivity was seen as an inevitable result of the scale of modern industrial enterprise and of the collective action problems that face shareholders, each of whom owns only a small fraction of a large firm's shares.

A paradigm shift may be in the making, however. Rival hypotheses have recently been offered …

The Politics Of Article 9, Robert E. Scott

Faculty Scholarship

In the ongoing debate concerning the efficiency and social value of Article 9 of the Uniform Commercial Code, two points are beyond dispute. First, asset-based financing has undergone an enormous transformation since the enactment of Article 9. The most vivid illustration of this is the dramatic increase in the number and size of firms that rely on secured credit as their principal means of financing both ongoing operations and growth opportunities. Previously, with a few exceptions (such as factoring and trust receipts), secured financing principally had served second-class markets as the "poor man's" means of obtaining credit. Now, it has …