Law Commons^™

The Corporate Right To Bear Arms, Robert E. Wagner

William & Mary Business Law Review

The ability of a corporation to exercise constitutional protections has been rife with uncertainty and change since the conception of corporate rights came into existence. The history and rapid development of the corporation, combined with the misapplied and misunderstood “corporate personhood” theory, have resulted in an almost unintelligible hodgepodge of corporate constitutional applications. Similarly, the concept of the right to bear arms has equally been muddled and applied very differently at varying times and locations since before the establishment of the Second Amendment. This Article attempts to clarify how an alternative to the “corporate personhood” theory, namely the “purpose” theory …

What Do We Know About Shareholders' Potential To Solve Environmental And Social Problems?, Bryce C. Tingle

Georgia Law Review

Securities regulators around the world are attempting to assist socially conscious shareholders in driving changes in the way corporate America operates. At a time when legislative solutions to some of our most pressing social and environmental problems seem far away, many market actors have come to hope that shareholders can succeed in regulating and reforming corporate practices.

This paper summarizes the empirical evidence regarding the behavior of shareholders with explicit ESG mandates, the difficulties outsiders experience in evaluating ESG performance, and the outcomes generated by the limited tools available to shareholders under corporate law. It concludes there is little evidence …

Book Review: Kings, Conquerors, Psychopaths: From Alexander To Hitler To The Corporation, Tim Bakken

Genocide Studies and Prevention: An International Journal

The book Kings, Conquerors, Psychopaths is a survey of a vast amount of human wrongdoing. It lays bare the motivations of aggressors who wish to subjugate nations or groups of people and corporate executives and government bureaucrats who make discretionary decisions that harm people. Along with cataloging mass killings by despots and soldiers, the book includes stories about Ponzi-schemers and the deaths of automobile drivers and passengers who were killed by vehicle defects known to the manufacturer. The book posits that “[p]owerful, elite forces are trying to force us backward toward a non-democratic state, one where power, wealth, and prerogative …

The Corporation As A Chartered Government, David Ciepley

Hofstra Law Review

The article focuses on reevaluating the historical role of corporations, highlighting their original purpose of improving governance rather than just liability protection or property management. It explores how early scholars saw corporations as entities with legislative authority. It further argues for returning to this governmental perspective, shedding new light on corporate history and their connection to constitutional government.

The Bankruptcy Of Purdue Pharma In The Wake Of Big Tobacco, Jacob Hedgpeth

University of Colorado Law Review Forum

Two distinct public health crises shook the United States from 1954 to 2023: nicotine addiction from tobacco products, and opioid addiction starting with Purdue Pharmaceutical’s OxyContin. These crises resulted in millions of deaths and immense costs to the country as a whole. The nicotine crisis ended in a national settlement against four major tobacco manufacturers, which yielded hundreds of millions of dollars for those harmed by these products. The owners of Purdue, however, opted for bankruptcy instead of settlement, keeping the majority of the money made from OxyContin for Purdue’s owners, the Sackler family.

These four tobacco giants and Purdue …

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

William & Mary Law Review

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

Anticompetitive Corporate Spin-Offs, Alexa Rosen Grealis

University of Miami Business Law Review

Section 355 of the Internal Revenue Code allows corporations to “spin-off” parent-controlled businesses tax-free. Traditionally an important tool for divestitures and restructurings with U.S. tax consequences, recent trends suggest section 355 is also of interest to firms facing US antitrust consequences. Statements and maneuvering by some such companies indicate firms are considering spinning-off businesses to avert liability and ‘break up’ on their own terms. Despite widespread renewed interest in using antitrust laws to break up large corporations, the antitrust implications of corporate spin-offs have thus far escaped scholarly notice and scrutiny.

This Note posits that it is a mistake to …

Sb 148 - Amendments To The Nonprofit Code, Joseph Shafritz, Jonathan Shaw

Georgia State University Law Review

The Act revises, simplifies, and modernizes the Georgia Nonprofit Corporation Code, providing greater flexibility in forming and running such organizations.

Zeroing In On Net-Zero: From Soft Law To Hard Law In Corporate Climate Change Pledges, Daniel C. Esty, Nathan De Arriba-Sellier

University of Colorado Law Review

One hundred and ninety-seven nations endorsed a target of net-zero greenhouse gas (GHG) emissions by midcentury in the 2021 Glasgow Climate Pact. As countries around the world have begun to develop their plans for deep decarbonization, it has become evident that the private sector will need to deliver much of what is required for the transition to an environmentally sustainable economy. The commitment to net-zero emissions by the year 2050 has therefore cascaded to the corporate world, leading hundreds of major companies to make their own net-zero GHG pledges. What constitutes a meaningful net-zero corporate pledge, however, remains unclear—and what …

Bankruptcy’S Identity Crisis, David A. Skeel Jr.

University of Pennsylvania Law Review

"The large companies that currently file for Chapter 11 look very different than the typical Chapter 11 cases of the past. The liability side of debtors’ balance sheets is much more complex and now consists primarily of secured rather than unsecured obligations. Many firms that might once have borrowed on a secured basis from a bank and on an unsecured basis from bondholders now have first and second liens instead. Leveraged loans have further contributed to the prevalence of secured debt. While these developments are beneficial in many respects, they have exacerbated two serious problems in Chapter 11. The first …

Corporate Innovation: One Path To More Sustainable Big Business, David Nows

University of Cincinnati Law Review

No abstract provided.

Ethnic Economies, Cultural Resources, And The African American Question, Lan Cao

University of Cincinnati Law Review

No abstract provided.

Beyond The Corporate Responsibility To Respect Human Rights In The Dawn Of A Metaverse, Kuzi Charamba

University of Miami International and Comparative Law Review

Technological advances in the 21st century pose new threats to human rights from business activities. In this new technological age, individuals and communities engage through an increasing myriad of digital means and platforms, all facilitated by a smaller, more powerful set of global BigTech companies, such as Microsoft, Apple, Google, and Meta (formerly known as Facebook). In so doing, however, our lives as workers, consumers, and citizens become subject to increasing corporate control through surveillance capitalism and algorithmic governance. With the dawn of metaverses—3D immersive digital environments in which you can interact with others via avatars and through virtual and …

Business, Human Rights, And Transitional Justice: Overcoming The Regulatory Dysfunction Of International Law, Jelena Aparac

Global Business Law Review

It is said that traditional international public law is state-centric and concerns mostly State obligations and responsibility. For this, it excluded corporate actors from any accountability mechanism, even when the corporations contribute to armed conflicts and international crimes. International law does not provide a clear definition of what amounts to “subjects” under this set of rules or criteria for how to determine legal personality. At the same time, some branches of international public law directly regulate corporate actions, namely international economic law and international humanitarian law. Conversely, international courts and tribunals have accepted the corporate jus standi, in some …

Misreading Menetti: The Case Does Not Help You Avoid Liability For Your Own Fraud, Val D. Ricks

St. Mary's Law Journal

Several decades ago, an incorrect legal idea surfaced in Texas jurisprudence: that business entity actors are immune from liability for fraud that they themselves commit, as if the entity is solely responsible. Though the Supreme Court of Texas has rejected that result several times, it keeps coming back. The most recent manifestation is as a construction of Texas’s unique veil-piercing statute. Many lawyers have suggested that this view of the veil-piercing statute originated in Menetti v. Chavers, a San Antonio Court of Appeals case decided in 1998. Menetti has in fact played a prominent role in the movement to …

Cancelling Capitalism?, Christina P. Skinner

Notre Dame Law Review

Grow the Pie’s defense of capitalism is a tremendous contribution, albeit one which Edmans himself downplays. While the author largely bills his work as one aiming to correct the factual record about profitmaximization— while providing pointers for managers and policymakers—Edmans reaffirms the validity and viability of corporate capitalism as an ideology that, in practice, advances human welfare.

Injecting this viewpoint into the academic debate is critically important at a time when voices of stakeholderists seem the loudest. Sociological research long ago confirmed that societal expectations (as often shaped by academic discourse) have real impact on our social systems and …

The Case For The Inclusion Of Employee Relations Matters In Mandatory Disclosure And Reporting Requirements For Public Corporations, Derek J. Illar

Northern Illinois University Law Review

Public companies have no obligation to disclose and to report matters that pertain to equality in the workplace, the payment of wages and benefits, and health and safety issues—“employee relations matters”—under the current statutory and regulatory framework for the capital markets. The absence of this obligation significantly and glaringly handicaps shareholders and other market participants insofar as they are investing in public companies with a limited and distorted understanding of their operations that belies the historical and analytical justifications for mandatory disclosures and reporting. This Article posits that public corporations should publish information about employee relations matters because certain disclosure …

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 …

The Federal Option: Delaware As A De Facto Agency, Omari Scott Simmons

Washington Law Review

Despite over 200 years of deliberation and debate, the United States has not adopted a federal corporate chartering law. Instead, Delaware is the “Federal Option” for corporate law and adjudication. The contemporary federal corporate chartering debate is, in part, a referendum on its role. Although the federal government has regulated other aspects of interstate commerce and has the power to charter corporations and preempt Delaware pursuant to its Commerce Clause power, it has not done so. Despite the rich and robust scholarly discussion of Delaware’s jurisdictional dominance, its role as a de facto national regulator remains underdeveloped. This Article addresses …

United States Food Law Update: Initial Food Safety Restructuring Efforts, Poultry Production Contract Reforms And Genetically Engineered Rice Litigation, A. Bryan Endres, Michaela N. Tarr

Journal of Food Law & Policy

This edition of the food law update will address recent events that may serve as bellwether signs that significant, long sought changes to the food and agricultural production system may be on the horizon. The first section of the update focuses on several general food safety initiatives. These efforts may, in the near term, coalesce into comprehensive food safety legislation. The second section analyzes two food safety actions relating to specific product categories: oysters and eggs. Section three provides a brief overview of poultry production contracts that may signal a broader restructuring of the legal relationships between farmers and the …

"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 …

The Essentially-At-Home Requirement For General Jurisdiction: Some Embarrassing Cases, David Crump

Catholic University Law Review

In Daimler AG v. Baumann, the Supreme Court held that general jurisdiction does not exist unless the defendant is “essentially at home” in the forum. It offered two examples of places fitting this description but gave little further guidance or justification. A metaphor, such as essentially at home, is a bad way to express a legal standards, because the essence of a metaphor is that it substitutes one reality for another, creating a deliberate confusion. The Court also equated general jurisdiction with what it called all-purpose jurisdiction, which is wrong because it is easy to pose cases in which general …

Rethinking Mac Clauses In The Time Of Akorn, Boston Scientific, And Covid-19, Samuel Shapiro

Michigan Business & Entrepreneurial Law Review

The MAC clause is perhaps the most important clause in contract law, giving acquirers the ability to terminate even the largest agreements in the face of an often vaguely defined “Material Adverse Change.” For decades, even though MAC clauses have been present in nearly every merger agreement, courts have almost universally refused to enforce them. But the Delaware Chancery Court’s 2018 decision in Akorn may finally change that. As the world deals with the economic uncertainty caused by COVID-19, courts may soon get more opportunities to decide whether or not they will follow Akorn’s lead and begin to allow …

Corporate Bankruptcy Requirements & Impacts “Under The Egyptian Law, Belal A. Badawy

UAEU Law Journal

The term “Merchant” does not only make reference to a natural person, but can also mean a moral person and, more precisely, corporations. As firms acquire commercial capacity, they become subject to the same legal regulations governing individual merchants. They can then be declared bankrupt just at the moment that they stop paying their commercial debts.

While much emphasis has been placed on the provisions of bankruptcy generally in jurisprudence and legislation, the bankruptcy provisions of corporations are somehow overlooked, although such provisions are those which should have been given due attention, for two reasons:

First, the role of a …

Ending Corporate Anonymity: Beneficial Ownership, Sanctions Evasion, And What The United Nations Should Do About It, Vineet Chandra

Michigan Journal of International Law

In the vast majority of jurisdictions around the world, there is a generous array of corporate forms available to persons and companies looking to do business. These entities come with varying degrees of regulation regarding how much information about the businesses’ principal owners must be disclosed at the time of registration and how much of that information is subsequently available to the public. There is little policy harmonization around the world on this matter. Dictators and despots have long taken advantage of this unintended identity shield to evade sanctions which target them; in July of 2019, the Center for Advanced …

Differentiating The Corporation: Accountability And International Humanitarian Law, David Hughes

Michigan Journal of International Law

Corporations are significant global actors that are continuing to gain international legal status. Regulatory efforts have closely followed persistent claims that various forms of corporate activity are adversely affecting individual welfare and societal objectives. Such observations are perhaps most acute during instances of armed conflict. The history of corporate misdeeds occurring within or contributing to the perpetuation of warfare is now well-documented. However, the relationship between international humanitarian law—the legal field governing the conduct of war—and corporations receives less attention than other areas of international law where the treatment of business entities have made important advancements. This article considers the …

Structural Labor Rights, Hiba Hafiz

Michigan Law Review

American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed …

Adverse Domination, Statutes Of Limitations And The In Pari Delicto Defense - Application In Cases Involving Claims Of Accounting Malpractice And Corporate Fraud, Laurence A. Steckman Esq., Adam J. Rader Esq.

Touro Law Review

No abstract provided.

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

State Competition For Corporate Headquarters And Corporate Law: An Empirical Anaylsis, Jens Dammann

Maryland Law Review

No abstract provided.