Law Commons^™

U.S. Tax Reform: Considerations For Service Members [Notes], Kan Samuel

Faculty Scholarship

No abstract provided.

Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li

Faculty Scholarship

The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.

The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.

This report highlights …

The Futility Of Walls: How Traveling Corporations Threaten State Sovereignty, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Inversions--mergers in which one firm merges with another abroad to avoid taxes in its home country--have spread as globalization has reduced many of the transactional costs associated with relocating. As firms acquire the power to choose the laws that govern them, they challenge the sovereignty of nation-states, who find their ability to tax and regulate firms depleted. States and firms compete in a game of cat and mouse to adapt to this new global reality. The subversion of state power by these firms reveals the futility of walls, both literal and regulatory. This Essay describes the phenomenon of these “traveling …

Do Conflicts Of Interest Require Outside Boards? Yes. Bsps? Maybe., Usha Rodrigues

Scholarly Works

From the Symposium: Outsourcing the Board: How Board Service Providers Can Improve Corporate Governance

Boards of directors are curious creatures. The law generally requires corporations to have them—indeed, they are the focus of the corporate law we teach in Business Associations in U.S. law schools. The corporation is managed by directors or under their direction; directors hire and fire officers; directors are necessary for fundamental transactions.

But the reason why corporations have directors is not entirely clear. In the prototypical privately held corporation, the family firm, the same individuals serve both as directors and officers. The CEO (better known as …

Negotiating The Lender Of Last Resort: The 1913 Federal Reserve Act As A Debate Over Credit Distribution, Nadav Orian Peer

Publications

“Lending of last resort” is one of the key powers of central banks. As a lender of last resort, the Federal Reserve (the “Fed”) famously supports commercial banks facing distressed liquidity conditions, thereby mitigating destabilizing bank runs. Less famously, lender-of-last-resort powers also influence the distribution of credit among different groups in society and therefore have high stakes for economic inequality. The Fed’s role as a lender of last resort witnessed an unprecedented expansion during the 2007–2009 Crisis when the Fed invoked emergency powers to lend to a new set of borrowers known as “shadow banks”. The decision proved controversial and …

Corporate Disobedience, Elizabeth Pollman

All Faculty Scholarship

Corporate law has long taken a dim view of corporate lawbreaking. Corporations can be chartered only for lawful activity. Contemporary case law characterizes intentional violations of law as a breach of the fiduciary duties of good faith and loyalty. While recognizing that rule breaking raises significant social and moral concerns, this Article suggests that corporate law and academic debate have overlooked important aspects of corporate disobedience. This Article provides an overview of corporate disobedience and illuminates the role that it has played in entrepreneurship and legal change. Corporations violate laws for a variety of reasons, including as part of efforts …

Law And The Blockchain, Usha Rodrigues

Scholarly Works

All contracts are necessarily incomplete. The inefficiencies of bargaining over every contingency, coupled with humans’ innate bounded rationality, mean that contracts cannot anticipate and address every potential eventuality. One role of law is to fill gaps in incomplete contracts with default rules. The blockchain is a distributed ledger that allows the cryptographic recording of transactions and permits “smart” contracts that self-execute automatically if their conditions are met. Because humans code the contracts of the blockchain, gaps in these contracts will arise. Yet in the world of “smart contracting” on the blockchain, there is no place for the law to step …

Book Review: Global Lawmakers: International Organizations In The Crafting Of World Markets By Susan Block-Lieb And Terence C. Halliday, Melissa J. Durkee

Scholarly Works

Susan Block-Lieb and Terence Halliday gradually build up an empirically grounded, meticulously realized argument that individual lawmakers matter. When one allows facts to inform theory rather than the other way around, the authors show, what becomes clear is that individual lawmakers are not just governmental delegates, but a whole variety of professionals, industry association representatives, and others with some stake in the lawmaking process. These actors work not just through formal processes, but also through an array of informal ones. Most importantly, their presence matters to the content of the legal norms that take hold around the world. The book …

Corporate Governance Beyond Economics, Elizabeth Pollman

All Faculty Scholarship

In recent years, changes to state and federal law have increased pressure on corporate law to serve as an ordering mechanism for interests and values beyond economics. On the federal front, two U.S. Supreme Court cases have put existing corporate law in a new quasi-constitutional light. In the landmark decisions of Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has pointed to state corporate law as the mechanism for ordering political and religious activity. In addition, Congress, the SEC, and federal courts have been embroiled in battles about the scope and appropriateness of regulating …

The Private Law Critique Of International Investment Law, Julian Arato

Articles

This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.

Corporate Charter Competition, Lynn M. Lopucki

UF Law Faculty Publications

The corporate charter competition has dominated the corporate law literature for four decades. This Article draws on the theoretical and empirical insights from that vast literature to present a systems analysis of the competition. The analysis shows the competition to be a system composed of three subsystems, joined by the internal affairs doctrine. The subsystems are those by which (1) corporations choose incorporation states, (2) states decide what packages to offer, and (3) states and stakeholders choose the courts that interpret and enforce corporate law. The analysis suggests that the standard account of charter competition should be revised in five …

Corporate Stewardship, Danielle D'Onfro

Scholarship@WashULaw

Harnessing strategies both ancient and modern — hostages, surety, gatekeepers, and blame — this Article proposes a new tool for achieving more efficient corporate compliance. It begins with the premise that a handful of well-known factors, including agency costs, misaligned time-horizons, cognitive biases, and insufficiently deterrent legal regimes sometimes cause companies to ignore important public safety obligations even when those obligations are cost-effective and welfare-maximizing. The result is systemic undercompliance with certain regulatory obligations. Despite the seriousness of this problem, currently available options for motivating compliance mostly fail to make public-safety regulations sufficiently salient to the individuals who perform the …

Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson

Articles

This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices of the …

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …

Benefit Corporations And The Separation Of Benefit And Control, Emily R. Winston

Faculty Publications

Scholars, activists, and other observers have expressed concern about the social effects of corporate activity in the United States since as early as the nineteenth century. A recurring theme in this debate has been whether corporations’ focus on shareholder interests causes them to neglect and harm the interests of other constituencies affected by corporate activity. A recent and prominent effort to address this concern is the social enterprise movement, which is unique because it has resulted in the creation of entirely new business entities designed specifically for for-profit businesses devoted to pursuing social missions. One of the most widely adopted …

Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah

Articles

The Tax Cuts and Jobs Act of 2017 (“TCJA”) contains a provision that on its face appears to be a blatant violation of the WTO’s Subsidies and Countervailing Measures (SCM) rules. New IRC section 250 applies a reduced 13.125% tax rate to “foreign derived intangible income” (FDII), which is defined as income derived in connection with (1) property that is sold by the taxpayer to any foreign person for a foreign use or (2) services to any foreign person or with respect to foreign property. In other words, this category comprises exports for property and services, including royalties from the …

Law Library Blog (February 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li

Faculty Scholarship

On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions …

Holding U.S. Corporations Accountable: The Convergence Of U.S. International Tax Policy And Human Rights, Jacqueline Lainez Flanagan

Journal Articles

International human rights litigation underscores the inverse relationship between corporate power and corporate accountability, with recent Supreme Court decisions demonstrating increased judicial protections of corporate rights and decreased corporate accountability. This article explores these recent decisions through a tax justice framework and argues that the convergence of international human rights law and U.S. international tax policy affords alternate methods to hold corporations accountable for violations of international law norms. The article specifically proposes higher scrutiny of foreign tax credits and an anti-deferral regime targeting the international activity of U.S. corporations that use subsidiaries to shelter income and decrease taxation while …

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

Publications

No abstract provided.

The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas

All Faculty Scholarship

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger …

Corporate Personhood And The History Of The Rights Of Corporations: A Reflection On Adam Winkler’S Book We The Corporations: How American Businesses Won Their Civil Rights, Jack M. Beermann

Faculty Scholarship

Adam Winkler’s book We the Corporations: How American Businesses Won Their Civil Rights is an impressive work on several different levels. Because so much of the development of American constitutional law over the centuries has involved businesses, the book is a nearly comprehensive legal history of federal constitutional law. It certainly would be worthwhile reading for anyone interested in the constitutionality of economic regulation in the United States, spanning the controversies over the first and second Banks of the United States, through the Lochner era and present-day clashes over corporate campaign spending, and religiously-based exemptions to generally applicable laws such …

Jesner V. Arab Bank, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

The exclusion of transnational human rights litigation from U.S. federal courts is, for most practical purposes, now complete. On April 24, 2018, the U.S. Supreme Court delivered a 5–4 ruling in Jesner v. Arab Bank, deciding that foreign corporations cannot be sued under the Alien Tort Statute (ATS).

The Big Crowd And The Small Enterprise: Intracorporate Disputes In The Close-But-Crowdfunded Firm, Martin Edwards

Journal Articles

Equity crowdfunding is a financial innovation that allows small businesses and startups to access capital through soliciting investment over the Internet. The current literature on crowdfunding has focused on its theoretical background and on the development of crowdfunding exemptions from the securities laws permitting the practice. There is less discussion of the impact of crowdfunding on corporate governance. This article fills that gap by outlining the potential for a panoply of intracorporate disputes between and among majority shareholders and “crowd” minority shareholders, placing the discussion within the longstanding—if uneasy—divide in judicial treatment of disputes in public corporations and close corporations. …

International Lobbying Law, Melissa J. Durkee

Scholarly Works

An idiosyncratic array of international rules allows nonstate actors to gain special access to international officials and lawmakers. Historically, many of these groups were public-interest associations like Amnesty International. For this reason, the access rules have been celebrated as a way to democratize international organizations, enhancing their legitimacy and that of the rules they produce. But a focus on the classic public-law virtues of democracy and legitimacy produces a theory at odds with the facts: The international rules rules also offer access to industry and trade associations like the World Coal Association, whose principal purpose is to lobby for their …

Governance By Contract: The Implications For Corporate Bylaws, Jill E. Fisch

All Faculty Scholarship

Boards and shareholders are increasing using charter and bylaw provisions to customize their corporate governance. Recent examples include forum selection bylaws, majority voting bylaws and advance notice bylaws. Relying on the contractual conception of the corporation, Delaware courts have accorded substantial deference to board-adopted bylaw provisions, even those that limit shareholder rights.

This Article challenges the rationale for deference under the contractual approach. With respect to corporate bylaws, the Article demonstrates that shareholder power to adopt and amend the bylaws is, under Delaware law, more limited than the board’s power to do so. As a result, shareholders cannot effectively constrain …

Who's Causing The Harm?, Catherine A. Hardee

Faculty Scholarship

My parents started a software company out of our family room when I was just five years old As a child, the business felt like the sixth member of our family A fourth child who grew up alongside my sisters and me and whom my parents struggled with, stressed over, and strove to infuse with their values just as they did their flesh and blood children. Take pride in your work and stand behind what you do applied equally to homework and product launches. The Golden Rule to treat others as you would like to be treated meant that, long …

Sunrise, Sunset: An Empirical And Theoretical Assessment Of Dual-Class Stock Structures, Andrew William Winden

UF Law Faculty Publications

A battle is brewing for control of America’s most dynamic companies. Entrepreneurs are increasingly seeking protection from interference or dismissal by public investors through the adoption of dual-class stock structures in initial public offerings. Institutional investors are pushing back, demanding that sucks structures be abandoned or strictly limited through subset provisions. The actual terms of dual-class stock structures, however, have been remarkably understudied, so the debate between proponents of prohibition and private ordering is ill-informed. This paper presents the first empirical analysis of the initial, or sunrise, and terminal, or sunset, provisions found in the charters of dual-class companies, with …

Goodwill Hunting Gone Bad: Tax Law ’S Outmoded Treatment Of Goodwill, Mitchell L. Engler

Articles

Goodwill reflects the positive consumer association with a business. Goodwill thus overlaps with trademarks and other related assets. This close association impedes the separation of goodwill value from such related assets. Difficulties thus arise when the tax law treats goodwill more (or less) favorably than related intangible assets.For instance, the tax law previously denied any depreciation deductions for goodwill. Business buyers thus often allocated their costs away from goodwill and towards related assets like depreciable customer lists. The IRS responded with the initial “goodwill hunting” wave, challenging taxpayers’ low goodwill valuations. Congress addressed this litigious area in 1993 with new, …

Corporate Rights As Subplot, Larry Yackle

Faculty Scholarship

Adam Winkler makes an important contribution to the great body of academic work on corporations in American life. He concentrates on a small corner of the larger topic. He traces only the development of corporate “rights,” and he describes, but does not critique, what he uncovers. There is much to learn from this fine book. I want to applaud Winkler’s primary revelation—namely, that corporate rights are a creation of the courts, especially the Supreme Court.1 Then I want to flag what Winkler (I think) would readily acknowledge: corporate rights are not the whole of the corporate story.