Law and Society Commons^™

Lawyers As Social Engineers: How Lawyers Should Use Their Social Capital To Achieve Economic Justice, Dana Thompson

Michigan Journal of Race and Law

The Michigan Business & Entrepreneurial Law Review (MBELR) has always strived to provide a platform for legal scholars, professionals, and students to publish business-related legal scholarship. Yet, little legal business scholarship focusing on the Black business community exists, despite the extraordinary impact that Black communities have in the U.S. business landscape. In a year of revolutionary social change, we are excited to feature in this special issue the work of Professor Dana Thompson, a Michigan Law alumna, in an effort to remedy this gap. Professor Thompson’s career, professional values, and day-to-day work demonstrate genuine, commanding, and inspiring commitment to social …

Of Bodies Politic And Pecuniary: A Brief History Of Corporate Purpose, David B. Guenther

Michigan Business & Entrepreneurial Law Review

American corporate law has long drawn a bright line between for-profit and non-profit corporations. In recent years, hybrid or social enterprises have increasingly put this bright-line distinction to the test. This Article asks what we can learn about the purpose of the American business corporation by examining its history and development in the United States in its formative period from roughly 1780-1860. This brief history of corporate purpose suggests that the duty to maximize profits in the for-profit corporation is a relatively recent development. Historically, the American business corporation grew out of an earlier form of corporation that was neither …

The Plight Of Women In Positions Of Corporate Leadership In The United States, The European Union, And Japan: Differing Laws And Cultures, Similar Issues, Bettina C. K. Binder, Terry Morehead Dworkin, Niculina Nae, Cindy A. Schipani, Irina Averianova

Michigan Journal of Gender & Law

Gender diversity in corporate governance is a highly debated issue worldwide. National campaigns such as “2020 Women on Boards” in the United States and “Women on the Board Pledge for Europe” are examples of just two initiatives aimed at increasing female representation in the corporate boardroom. Several

European countries have adopted board quotas as a means toward achieving gender diversity. Japan has passed an Act on Promotion of Women’s Participation and Advancement in the Workplace to lay a foundation for establishing targets for promoting women.

This Article examines the status of women in positions of leadership in the United States, …

Solely Beneficial: How Benefit Corporations May Change The Duty Of Care Analysis For Traditional Corporate Directors In Delaware, Dustin Womack

Michigan Business & Entrepreneurial Law Review

Rather than adding to the voluminous literature assessing the necessity of benefit corporations themselves or the possible liability of their directors, this Note concerns itself only with how benefit corporations will impact the fiduciary duty of care analysis for the directors of traditional corporations constituted in the state of Delaware. Further, this Note is only concerned with liability arising from claims alleging that a day-to-day directorial decision resulted in a breach of the duty of care. As such, this Note does not address any other potential liability predicated on other situations or duties. Finally, this Note provides general background information …

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …

Who Speaks The Culture Of The Corporation?, Gwendolyn Gordon

Michigan Business & Entrepreneurial Law Review

Recent cases – Burwell v Hobby Lobby Stores and Citizens United chief among them – evince a new understanding of the nature of the corporation and its place in society. Whether a corporation has rights – such as those of religious exercise – is not, however, just a question of legal interpretation. To answer this question requires a theory of group or cultural identity, that is, a theory of how a group may have “culture” separate and apart from those of the individuals that comprise it. And such a theory must address how to understand the meaning of culture when …

企業の社会的責任と戦略的租税行動 [Corporate Social Responsibility And Strategic Tax Behavior], Reuven S. Avi-Yonah, Keisaku Koga Translator

Articles

This paper addresses two questions. First, from the perspective of the corporation, should the corporation cooperate and pay the corporate tax, or should it engage in "strategic" tax behavior designed to minimize or eliminate its corporate tax burden? Second, from the perspective of the state, should the state use the corporate tax just to raise revenue, or should it also try to use it as a regulatory tool to steer corporate behavior in directions that it deems beneficial to society? The paper argues that whatever our view of the nature of the corporation and of the legitimacy of corporate social …

The Effect Of Economic Integration With China On The Future Of American Corporate Law, Joseph Vining

Law & Economics Working Papers

China's development into a world economic power and its continuing integration with the United States economy raise the question whether China's own history and the socialist context of its domestic corporate law may affect the meaning of business terms in use both internationally and in American domestic corporate law. Of particular interest is the question whether China's entry and impact may blunt the late-twentieth century effort in the United States to change the legal sense of the purpose of an American business corporation.

Policies To Expand Minority Entrepreneurship: Closing Comments, Michael S. Barr

Book Chapters

This essay is based on comments delivered at the Conference on on Entrepreneurship in Low- and Moderate-Income Communities, November 3-4, 2005. This has been a productive conversation. In my closing comments, I want to shift our focus somewhat, from entrepreneurship in low-income communities to minority entrepreneurship generally. I want to do so because many minority entrepreneurs are connected to or hire from low-income communities, and because minority entrepreneurs face critical barriers even when they attempt to create and grow firms outside of distressed communities. In this comment, I want to highlight key barriers and suggest five steps for Congress, the …

Sox And Whistleblowing, Terry Morehead Dworkin

Michigan Law Review

The language of the Sarbanes-Oxley Act ("SOX") leaves no doubt that Congress intended whistleblowing to be an integral part of its enforcement mechanisms. The Act attempts to encourage and protect whistleblowers in a variety of ways, including providing for anonymous whistleblowing, establishing criminal penalties for retaliation against whistleblowers, and clearly defining whistleblowing channels. Unfortunately, these provisions give the illusion of protection for whistleblowers without effectively providing it. There is increasing evidence that virtually no whistleblower who has suffered retaliation and pursued remedies under SOX has been successful. Additionally, social science research and studies of whistleblowing laws indicate that SOX is …

A Business Ethics Perspective On Sarbanes-Oxley And The Organizational Sentencing Guidelines, David Hess

Michigan Law Review

This Article assesses the ability of Sarbanes-Oxley and other recent changes in the law and stock exchange listing requirements to reduce the incidence of fraud and to increase the reporting of financial misconduct. It begins by examining the individual decision-makers within a corporation and analyzing their intentions and behaviors under the Theory of Planned Behavior. It then examines the ability of the organization to influence the employees' intentions and behaviors through codes of ethics and compliance programs, and finds growing support for the usefulness of integrity based compliance programs. Finally, the Article considers how the Sarbanes-Oxley legislation and Organizational Sentencing …

Addressing Imperfections In The Tax System: Procedural Or Substantive Reform?, Leandra Lederman, Stephen W. Mazza

Michigan Law Review

Books about tax administration tend to fall into one of two broad categories: those that paint the Internal Revenue Service ("IRS") as an agency peopled by corrupt, out-of-control bureaucrats who take pleasure in seeing innocent taxpayers suffer, and those that tell readers how to structure their affairs to minimize the risk of incurring an IRS employee's wrath during a tax audit. Perfectly Legal, the full title of which communicates David Cay Johnston's intent to focus on the tax system, does neither of those things. Instead, it is a book much like The Great American Tax Dodge, which explained …

One For A, Two For B, And Four Hundred For C: The Widening Gap In Pay Between Executives And Rank And File Employees, Susan J. Stabile

University of Michigan Journal of Law Reform

This Article, focuses on executive pay in relation to that of rank and file workers. It examines the standard justifications for the vast and increasing pay gap between executives (particularly CEOs) and rank and file workers and finds that such arguments do little more than attempt to justify in economic terms a situation that exists for a very different reason. Instead, the author argues, the real reason such a huge and widening gap in pay between executive and rank and file workers exists is market failure in the mechanisms of setting executive pay, aggravated by the shareholder primacy norm, which …

Corporations And Society: Power And Responsibility, Sara Anne Engle

Michigan Law Review

A Review of Corporations and Society: Power and Responsibility edited by Warren J. Samuels and Arthur S. Miller

The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan

Michigan Law Review

This Article addresses that question by examining judicial sentencing philosophy as applied to white-collar criminality and reporting data that illuminate the operation of that philosophy. Part I of the Article argues that the traditional purposes and limits of criminal sentencing may plausibly justify either disparate or comparable sentences in cases of white-collar and common criminality. Part II describes the obstacles to an accurate empirical inquiry into how judges resolve these uncertainties in the theory of punishment. Part III presents a study designed to overcome as many of these obstacles as possible. What is most dramatic is that the resulting data …

"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.

Michigan Law Review

Because this Article's arguments are interwoven, a preliminary roadmap seems advisable. First, Section I will examine three perspectives on corporate punishment and will develop several concepts in terms of which corporate penalties should be evaluated. Although this analysis will suggest several barriers to effective corporate deterrence, Section II will explain why a sensible approach to corporate misbehavior still must punish the firm as well as the individual decision- maker. Section III will then evaluate three proposed approaches: (1) the "equity fine,'' (2) the use of adverse publicity, and (3) the fuller integration of public and private enforcement. In addition, it …

Reflections On Public Interest Directors, Alfred F. Conard

Michigan Law Review

The "public interest director" may not yet be an idea whose time has come, but it is an idea that can no longer be ignored. The time has come for responsible lawyers and other opinion leaders to know why, and to what extent, they favor or oppose it.

The Shareholder's Role In Corporate Social Responsibility, Thomas H. Hay

University of Michigan Journal of Law Reform

In The Modern Corporation and Private Property, Professors Berle and Means concluded that the corporation should serve the interests of all society and not solely the interests of its shareholders. This concept was a break from traditional corporate theory and the beginning of the theory of corporate social responsibility. The purpose of this article is to assess the modem shareholder's role in the implementation of this doctrine. Because Berle was one of the first to consider the role of the shareholder in enforcing the corporation's responsibility to society, this article will begin with a brief review of his ideas …