Law Commons^™

Book Review—Environmental, Social, Governance: The Professional’S Guide To The Law And Practice Of Esg, William J. Donohue

Dickinson Law Review (2017-Present)

No abstract provided.

Special Purpose Acquisition Companies (Spacs) And The Sec, Neal Newman, Lawrence J. Trautman

Faculty Scholarship

Special Purpose Acquisition Companies (SPACs) are simply enterprises that raise money from the public with the intention of purchasing an existing business and becoming publicly traded in the securities markets. If the SPAC is successful in raising money and the acquisition takes place, the target company takes the SPAC’s place on a stock exchange in a transaction that resembles a public offering. Also known as “blank-check” or “reverse merger” companies, this process avoids many of the pitfalls of a traditional initial public offering.

During late 2020 and 2021 an unprecedented surge in the popularity and issuance of Special Purpose Acquisition …

Transparency For Whom? Grounding Land Investment Transparency In The Needs Of Local Actors, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Transparency is often seen as a means of improving governance and accountability of investment, but its potential to do so is hindered by vague definitions and failures to focus on the needs of key local actors.

In this new report focusing on agribusiness, forestry, and renewable energy projects (“land investments”), CCSI grounds transparency in the needs of project-affected communities and other local actors. Transparency efforts that seek to inform and empower communities can also help governments, companies, and other actors to more effectively manage operational risk linked to social conflict.

Troublingly, the report finds that:

• Disclosures around land investments continue …

Transparency Of Land-Based Investments: Cameroon Country Snapshot, Sam Szoke-Burke, Samuel Nguiffo, Stella Tchoukep

Columbia Center on Sustainable Investment Staff Publications

Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency.

In a new report focusing on agribusiness projects in Cameroon, CCSI and the Centre pour l’Environnement et le Développement (CED) find that:

• Communities continue to be excluded from decision-making around investments.
• The government pursues a top-down approach to concession allocation and remains reluctant to recognize all legitimate tenure rights.
• The government faces threats to its legitimacy as the grievances of citizens and investors alike lead to the barring of roads by communities and investor withdrawals.

CCSI and CED therefore call for:

• A …

Mining And The Sdgs: A 2020 Status Update, Responsible Mining Foundation, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In September 2015, the UN member states agreed on a set of 17 Sustainable Development Goals (SDGs), which represent the global agenda for equitable, socially inclusive, and environmentally sustainable economic development until 2030. Mining companies have the potential to become leading partners in achieving the SDGs. Through their direct operations, mining companies can generate profits, employment, and economic growth in low-income countries. And through partnerships with government and civil society, mining companies can ensure that benefits of mining extend beyond the life of the mine itself, so that the mining industry has a positive impact on the natural environment, climate …

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …

On The Origins Of The Modern Corporation And Private Property, Bernard C. Beaudreau

Seattle University Law Review

The Modern Corporation and Private Property (MCPP) by Adolf A. Berle Jr. and Gardiner Means, published in 1932, is undisputedly the most influential work ever written in the field of corporate governance. In a nutshell, Berle and Means argued that corporate control had been usurped by a new class of managers, the result of which included (1) shareholder loss of control (a basic property right), (2) questionable corporate objectives and behavior, and (3) the potential breakdown of the market mechanism. In this paper, I examine the origins of MCPP, paying particular attention to the authors’ underlying motives. I argue that …

Quasi Governments And Inchoate Law: Berle’S Vision Of Limits On Corporate Power, Elizabeth Pollman

Seattle University Law Review

This Berle X Symposium essay gives prominence to distinguished corporate law scholar Adolf A. Berle, Jr. and his key writings of the 1950s and 1960s. Berle is most famous for his work decades earlier, in the 1930s, with Gardiner Means on the topic of the separation of ownership and control, and for his great debate of corporate social responsibility with E. Merrick Dodd. Yet the world was inching closer to our contemporary one in terms of both business and technology in Berle’s later years and his work from this period deserves attention.

Technological And Institutional Crossroads: The Life And Times Of Adolf A. Berle Jr., Bernard C. Beaudreau

Seattle University Law Review

In this paper, I examine the life and times of Adolf A. Berle Jr., perhaps the most influential scholar in the field of corporate governance. Specifically, I examine his contribution in light of the technological and institutional changes that occurred in the late nineteenth century—changes that were germane to his thinking and understanding of corporate governance. I argue that, despite his perspicacity, he failed to appreciate the changing role of corporate officers—that is, from that of fiduciary agent to that of visionary, founder, and essential element in corporate success. Put differently, in the early twentieth century, the key asset in …

The Rise And Fall (?) Of The Berle–Means Corporation, Brian R. Cheffins

Seattle University Law Review

This Article forms part of the proceedings of the 10th Annual Berle Symposium (2018), which focused on Adolf Berle and the world he influenced. He and Gardiner Means documented in The Modern Corporation and Private Property (1932) what they said was a separation of ownership and control in major American business enterprises. Berle and Means became sufficiently closely associated with the separation of ownership and control pattern for the large American public firm to be christened subsequently the “Berle–Means corporation.” This Article focuses on the “rise” of the Berle–Means corporation, considering in so doing why ownership became divorced from control …

Berle And Means’S The Modern Corporation And Private Property: The Military Roots Of A Stakeholder Model Of Corporate Governance, Andrew Smith, Kevin D. Tennent, Jason Russell

Seattle University Law Review

The Modern Corporation and Private Property by Adolf Berle and Gardiner Means (1932) remains one of the most cited works in management studies. Our paper shows that Berle and Means espoused a stakeholder theory of corporate governance that challenged the then-hegemonic idea that the sole purpose of a corporation is to create value for the shareholders. We argue that Berle and Means’s support for stakeholder theory can be associated with their earlier service in the U.S. military, an organization which then inculcated an ethos of public service in its members. Our paper, which is based on archival research in the …

Dialectical Regulation, Robert B. Ahdieh

Robert B. Ahdieh

While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.

Such patterns of regulatory engagement are increasingly evident, across …

Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan

Michigan Law Review

When the government contracts with private parties, the risk of fraud runs high. Fraud against the government hurts everyone: taxpayer money is wasted on inferior or nonexistent products and services, and the public bears the burdens attendant to those inadequate goods. To combat fraud, Congress has developed several statutory frameworks to encourage whistleblowers to come forward and report wrongdoing in exchange for a monetary reward. The federal False Claims Act allows whistleblowers to file an action in federal court on behalf of the United States, and to share in any recovery. Under the Dodd- Frank Act, the SEC Office of …

Distributed Governance, Carla L. Reyes, Nizan Geslevich Packin, Bejamin Edwards

Faculty Journal Articles and Book Chapters

Distributed ledger technology enables disruption of traditional business organizations by introducing new business entities without the directors and officers of traditional corporate entities. Although these emerging entities offer intriguing possibilities, distributed entities may suffer significant collective action problems and expose investors to catastrophic regulatory and governance risks. Our essay examines key considerations for stakeholders and argues that distributed entities must be carefully structured to function effectively.

This essay breaks new ground by critically examining distributed entities. We argue that a distributed model is most appropriate when DLT solves a unique corporate governance problem. We caution against ignoring the lessons painstakingly …

Legal Diversification, Kelli A. Alces

Scholarly Publications

The greatest protection investors have from the risks associated with capital investment is diversification. This Essay introduces a new dimension of diversification for investors: legal diversification. Legal diversification of investment means building a portfolio of securities that are governed by a variety of legal rules. Legal diversification protects investors from the risk that a particular method of minimizing agency costs will prove ineffective and allows investors to own securities in a variety of firms, with each security governed by the most efficient set of legal rules given the circumstances of the investment. Diversification of investment by legal rules is possible …

Credit Risk Transfer Governance: The Good, The Bad, And The Savvy, Houman B. Shadab

Articles & Chapters

Goldman Sachs and American International Group on the eve of the 2008 financial crisis were bound together through a web of credit risk transfer (CRT) contracts in the form of credit default swaps (CDSs) and synthetic collateralized debt obligations (CDOs). Synthetic CDOs enabled certain hedge funds to profit from the ultimate bursting of the housing bubble due to the funds’ savvy in understanding CRT better than their counterparties. This Article constructs a novel theory of CRT that extends the insights of creditor governance theory to CRT transactions. By doing so, this Article establishes a framework for good CRT governance. CRT …

Developing Governance And Regulation For Emerging Capital And Securities Markets, Ali A. Ibrahim

Georgetown Law Graduate Paper Series

No abstract provided.

Dialectical Regulation, Robert B. Ahdieh

Faculty Scholarship

While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.

Such patterns of regulatory engagement are increasingly evident, across …

Managing Risk On A $25 Million Bet: Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett Iii

ExpressO

An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly-held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely-held corporation plagued by inter-shareholder conflict.

This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital finance, this Article demonstrates for the first time how this dichotomy obscures how all firms - public and private - often face the …

Voluntary Adoption Of Corporate Governance Mechanisms, Anita I. Anand, Frank Milne, Lynnette Purda

ExpressO

We examine the extent to which firms adopt recommended but not required corporate governance guidelines and establish that firms voluntarily implement suggested domestic best practices and the mandatory practices of neighboring countries as well. Drawing on the intuition of a principal-agent model in which the entrepreneur cannot fund all positive NPV projects, we hypothesize that access to capital is a primary determinant of the willingness of firms to voluntarily adopt corporate governance mechanisms. Our empirical results provide significant evidence that firms voluntarily adopt corporate governance guidelines. These results suggest that global competition for capital encourages firms to voluntarily adopt governance …

Voluntary Vs Mandatory Corporate Governance: Towards An Optimal Regulatory Framework, Anita I. Anand

ExpressO

This article fills a gap in the legal literature by comparing mandatory corporate governance regimes to voluntary corporate governance regimes. It encourages market participants, including regulators, to acknowledge that firms have incentives to adopt enhanced governance practices voluntarily and to make disclosure about the same. The article argues that an optimal governance regime is a hybrid one in which adoption of best practice guidelines is voluntary but disclosure of corporate governance practices is mandatory. Such a regime is optimal because it balances the benefits and costs to all stakeholders, particularly issuers and investors. The cost analysis should be completed by …