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Appendix: Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowman Williams

William & Mary Law Review Online

Appendix to article in William & Mary Law Review vol. 63, no. 2 (2021), "Board Gender Diversity: A Path to Achieving Substantive Equality in the United States" by Kimberly A. Houser and Jamillah Bowen Williams.

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowen Williams

William & Mary Law Review

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …

The Use And Misuse Of Fiduciary Duties: Corporate Social Responsibility And The Standard Of Review, Jonathan R. Povilonis

William & Mary Business Law Review

This Article provides a crucial corrective to the “corporate social responsibility” debate, which concerns whether corporations have the obligation to protect or serve the interests of groups other than their shareholders, like employees or customers (often called “stakeholders”). Scholars on one side of the debate have repeatedly presumed that corporate directors’ fiduciary duties to shareholders play an important role in protecting shareholders from decisions that favor stakeholders at their expense. Scholars on the other side agree that fiduciary duties provide meaningful protection against unfavorable conduct but argue that directors should also owe fiduciary duties to stakeholders so they may be …

Regulatory Competition And State Capacity, Martin W. Sybblis

William & Mary Business Law Review

This Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to …

Why The Congressional Review Act Should Be Repealed, Alex Lipow

William & Mary Environmental Law and Policy Review

The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …

Corporate Venture Capital, Darian M. Ibrahim

Faculty Publications

This Article makes the case for corporate venture capital as a potentially game-changing entrant into entrepreneurial finance. Part II begins by retracing the ancillary players in entrepreneurial finance and their roles in the startup ecosystem. After finding each of them incapable of denting the venture capitalist’s current dominance, Part III introduces the large corporation as venture capitalist. Part III discusses the growing scale of corporate venture capital and why it may be desirable for startups, innovation, and society as a whole. Part IV looks at legal differences that may become important for corporate venture capitalists to consider, including securities, antitrust, …

We Have To Tell Them What?: The New Corporate Transparency Act And Forming Business Entities In Massachusetts, James J. Wheaton, Gustavo De La Cruz Reynozo

Faculty Publications

The details and requirements of business entity formation have traditionally been the sole province of state law. Most states, like Massachusetts, maintain corporate annual report filing requirements that involve the public disclosure of corporate officers and directors, and some impose similar requirements for LLCs or other business entities. Those requirements focus on active managers of the entities, not information about the beneficial ownership of entities formed under their laws. However, the recently enacted federal Corporate Transparency Act (CTA) will fundamentally change entity disclosure.

By January 1, 2022, the Treasury Department will be promulgating regulations that will require every state filing …

"There Is No Planet 'B'": How U.S. Music Festival Production Companies Can Reduce Their Negative Environmental Impact By Incorporating As A Benefit Corporation, Bryce Ballard

William & Mary Environmental Law and Policy Review

The music festival industry in the United States is growing exponentially each year, both in terms of fan attendance and the money being produced by concession, merchandise, and ticket sales. However, there is also a growing realization that there are several negative externalities associated with the growth of the music festival industry, not the least of which is the environmental damage that follows in the wake of music festivals.

The scene at most music festivals in the United States today is the same: a caravan of vehicles lined up single-file waiting to enter the campgrounds, camping tents of various sizes …

Legal Liability For Corporations Doing Business In The West Bank: An Analysis Of Corporate Liability And A Shareholder Proposal Solution For Mitigating Risky Business Activity, Mila Kelly

William & Mary Business Law Review

For over half a century, Israeli Settlements in the occupied West Bank have expanded significantly in both land and economic activity. While this expansion has not been without criticism from the international community over fear of humanitarian law violations, global businesses have not shied away from the profitability of this region. This engagement in corporate activity within any disputed territory comes with its fair share of business risk, including legal liability for complicity in purported human rights violations.

This Note will examine the hypothetical liability for corporations doing business in the West Bank and explain how international law and the …

Treble, Treble Toil And Trouble: The New Per Se Rule As A Protection Against The Curse Of The "Supreme Evil", Seth Konopasek

William & Mary Business Law Review

The Supreme Court has called collusion between firms the “supreme evil” of antitrust. Despite public and private enforcement efforts, collusive firms and the cartels they form cost American consumers billions of dollars a year and undermine the virtues of our free market economy. The Chicago School theory of antitrust enforcement, which has dominated antitrust scholarship, vehemently disapproves of private antitrust actions that enable plaintiffs to recover treble damages. Recent scholarship, however, has rejected the Chicago School’s concerns of overdeterrence and embraced the treble damages remedy. This Note follows the recent scholarship and proposes the New Per Se Rule, which would …

Blurred Lines: Disparate Impact And Disparate Treatment Challenges To Subjective Decisions-- The Case Of Reductions In Force, Allan King, Alexandra Hemenway

William & Mary Business Law Review

Subjective employment decisions may be challenged under disparate treatment (intentional discrimination) and/or disparate impact (the discriminatory consequences of a neutral policy) theories of discrimination. However, these theories and supporting evidence often are conflated when the criteria for selecting employees are ill-defined or unrecorded. In those instances, the process by which employees are selected merges with the selections themselves, these legal theories converge as well. This Article critically discusses how courts have struggled to distinguish these theories in cases alleging a discriminatory reduction in force. It suggests how these cases should be submitted to juries, to preserve the liability and remedies …

Fiduciary Judgment Rules, Julian Velasco

William & Mary Law Review

Because of the strong moral rhetoric and robust equitable remedies available in fiduciary law, it is not surprising to find lawyers and legal scholars seeking to expand the reach of fiduciary law principles into new relationships and new areas of law. However, expansion often does not work very well because of the demanding and pervasive nature of fiduciary duties. Thus, jurists often turn to the business judgment rule and its policy of underenforcement of fiduciary duties as a way to fit fiduciary law principles into other areas of law. The problem with this approach is that it is based on …

Designing Dual-Class Sunsets: The Case For A Transfer-Centered Approach, Marc T. Moore

William & Mary Business Law Review

Dual-class stock (DCS) structures, and their implications for managerial accountability and corporate governance more broadly, have become prevalent concerns for corporate lawyers and policymakers. Recent academic and practitioner debates on DCS have tended to focus less on the general merits and drawbacks of DCS versus one share/one vote structures, and more on the specific common-ground concern as to whether and how such structures are subjected to contingent reversal or “sunset”. This Article compares the relative advantages and disadvantages of time-, ownership- and transfer-centered models of DCS sunset provisions. It argues in favor of the transfer-centered model on the grounds that: …

Corporate Commitment To International Law, Jay Butler

Faculty Publications

Corporations are increasingly important actors in international law. But vital questions underlying this development have long gone unanswered: How and why do corporations commit to international law?

This article constructs a general account of business interaction with international legal obligation and suggests that a gateway to demystifying this persistent puzzle lies in corporate opinio juris.

Corporate opinio juris describes a company's subscription to a rule of international law, even though the company is not technically bound by that rule. This subscription functions as a kind of pledge that, once made, has sway over the company and its peers and symbiotically …