Law Commons^™

Volkswagen's Bad Decisions & Harmful Emissions: How Poor Process Corrupted Codetermination In Germany's Dual Board Structure, Nicola Faith Sharpe

Michigan Business & Entrepreneurial Law Review

This Article directly challenges the often argued proposition that Ger-many’s two-tier board of directors is superior to America’s single-tier board structure. It argues that regardless of structure, any decision-making body that lacks effective decision-making processes is at signifcant risk of failure, scandal, and ineffectiveness. Legal scholars and policymakers have largely ignored the connection between decision-making processes and the efficacy of corporate leadership. The Article is the first to examine this underexplored relationship in the context of the German dual-board.

Volkswagen’s 2015 emissions scandal provides a vehcicle to critcally assess the relationship between Germany’s two-tiered board and an effec-tive decision-making process. …

Trump's "Big-League" Tax Reform: Assessing The Impact Of Corporate Tax Changes, Ryan J. Clements

Michigan Business & Entrepreneurial Law Review

This Article reviews and assesses corporate tax reforms advocated by President Donald Trump during his presidential campaign and signed into law since taking office (the Tax Cuts and Jobs Act of 2017), in light of economic theory and the Modigliani-Miller Irrelevance Theorem. The Ar-ticle argues that companies will adapt polcies in light of new taxation mea-sures, thereby impacting the effectiveness of reform. In support of this conclusion, the Article surveys two empirical studies—one in relation to the repatriation efforts of President Bush’s Homeland Investment Act and an-other in relation to unexpected changes to the taxation of Canadian income trusts—to highlight …

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 …

Human Rights And Cybersecurity Due Diligence: A Comparative Study, Scott J. Shackelford

University of Michigan Journal of Law Reform

No company, just like no nation, is an island in cyberspace; the actions of actors from hacktivists to nation-states have the potential to impact the bottom line, along with the human rights of consumers and the public writ large. To help meet the multifaceted challenges replete in a rapidly globalizing world—and owing to the relative lack of binding international law to regulate both cybersecurity and the impact of business on human rights—companies are reconceptualizing what constitutes “due diligence.” This Article takes lessons from both the cybersecurity and human rights due diligence contexts to determine areas for cross-pollination in an effort …

Front Matter

Michigan Business & Entrepreneurial Law Review

No abstract provided.

Finance And Growth: The Legal And Regulatory Implications Of The Role Of The Public Equity Market In The United States, Ezra Wasserman Mitchell

Michigan Business & Entrepreneurial Law Review

The important study of the relationship between finance and economic growth has exploded over the past two decades. One of the most significant open questions is the role of the public equity market in stimulating growth and the channels it follows if it does. This paper examines that question from an economic, legal, and historical perspective, especially with regard to its regulatory and corporate governance implications. The US market is my focus.

In contrast to most studies, I follow both economic history and the actual flow of funds in addition to empirics and theory to conclude that the public equity …

The Limits Of Performance-Based Regulation, Cary Coglianese

University of Michigan Journal of Law Reform

Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …

Enterprise Without Entities, Andrew Verstein

Michigan Law Review

Scholars and practicing lawyers alike consider legal entities to be essential. Who can imagine running a large business without using a business organization, such as a corporation or partnership? This Article challenges conventional wisdom by showing that vast enterprises—with millions of customers paying trillions of dollars—often operate without any meaningful use of entities.

This Article introduces the reciprocal exchange, a type of insurance company that operates without any meaningful use of a legal entity. Instead of obtaining insurance from a common nexus of contract, customers directly insure one another through a dense web of bilateral agreements. While often overlooked or …