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Full-Text Articles in Law

Dual Fiduciaries: Unicorns, Corporate Law And The New Frontier, Anat Alon-Beck Jan 2023

Dual Fiduciaries: Unicorns, Corporate Law And The New Frontier, Anat Alon-Beck

Faculty Publications

Legal and regulatory structures influence the shift in equities in the United States from public markets to private markets, entrepreneurial opportunities and new firm formation. There is a rise in the number of “unicorn” firms, which are privately held venture-capital backed startups that are valued at $1 billion or more. The number of unicorns in the United States and overseas has grown exponentially over the last few years. This chapter discusses the rise of the unicorns and with it the increasing importance of corporate governance and fiduciary duties. There are new vertical and horizontal conflicts among common and preferred shareholders ...


Impact Assessment And Responsible Business Conduct Tools In The Extractive Sector: An Environmental Human Rights Toolbox For Government, Business, Civil Society, And Indigenous Groups, Sara L. Seck, Charlotte Connolly, Penelope Simons, Audrey Axten Jul 2022

Impact Assessment And Responsible Business Conduct Tools In The Extractive Sector: An Environmental Human Rights Toolbox For Government, Business, Civil Society, And Indigenous Groups, Sara L. Seck, Charlotte Connolly, Penelope Simons, Audrey Axten

Responsible Business Conduct and Impact Assessment Law

This toolbox provides guidance on how governments, businesses, civil society, and Indigenous groups may encourage and adopt a human rights approach to impact assessment (IA). It forms part of a broader research project aimed at highlighting the interrelationship between IA laws and Responsible Business Conduct (RBC) tools, funded by the Social Sciences & Humanities Research Council (SSHRC) Knowledge Synthesis Grant: Informing Best Practices in Environmental & Impact Assessments (the “KSG”).


An Automation Tax- Adopt With Caution, Vincent Ooi Jun 2022

An Automation Tax- Adopt With Caution, Vincent Ooi

Research Collection Yong Pung How School Of Law

The post highlights three main issues that may result from the rapid and widespread automation of jobs: 1) declining tax revenues; 2) inequitable distribution of gains and losses from automation; and 3) social costs of job displacement, such as social support and retraining programmes for displaced workers.An automation tax may be imposed on a temporary basis to manage (slow) the rate of displacement of workers due to the adoption of automation technologies, but should not be a permanent feature. Otherwise, there will be a risk of loss of competitiveness in the long-term, possibly resulting in even greater economic harm ...


Made Crypto Losses? Don't Assume The Taxman Will Subsidise You, Vincent Ooi, Vincent Ooi Jun 2022

Made Crypto Losses? Don't Assume The Taxman Will Subsidise You, Vincent Ooi, Vincent Ooi

Research Collection Yong Pung How School Of Law

The key points we made in the article are as follows:1) One might think that because income from transactions involving cryptocurrencies is taxable, the losses from such transactions would also be deductible. Unfortunately, the situation is not quite so straightforward.2) The key question is whether it is possible to establish that there was a trade or business (in trading cryptocurrencies). If so, then the deduction rules are a lot more generous. Otherwise, there will be quite a few restrictions:a) Losses from cryptocurrency transactions are unlikely to be useable to be set off against income from other sources ...


New Assets, (Largely) Same Old Rules: The Taxation Of Digital Tokens, Vincent Ooi May 2022

New Assets, (Largely) Same Old Rules: The Taxation Of Digital Tokens, Vincent Ooi

Research Collection Yong Pung How School Of Law

In this blog post, I highlight the fact that across jurisdictions, tax provisions specifically drafted to address the taxation of digital tokens are still quite rare, meaning that existing orthodox tax rules will have to be applied. However, care must be taken when applying tax provisions and one must be aware of the limits of "reasoning by analogy".Some tax provisions make reference to specific assets or asset classes and it cannot be assumed that digital tokens which look very similar to these assets will inevitably fall under those provisions. For example, no matter how much a digital payment token ...


Esg And The Sec, Christopher Bruner Apr 2022

Esg And The Sec, Christopher Bruner

Popular Media

This piece is a review of an article by Virginia Harper Ho titled Modernizing ESG Disclosures, 2022 U. Ill. L. Rev. 277. Bruner is a contributing editor to JOTWELL’s Corporate Law section.


Purpose Proposals, Jill E. Fisch Apr 2022

Purpose Proposals, Jill E. Fisch

Faculty Scholarship at Penn Carey Law

Repurposing the corporation is the hot issue in corporate governance. Commentators, investors and increasingly issuers, maintain that corporations should shift their focus from maximizing profits for shareholders to generating value for a more expansive group of stakeholders. Corporations are also being called upon to address societal concerns – from climate change and voting rights to racial justice and wealth inequality.

The shareholder proposal rule, Rule 14a–8, offers one potential tool for repurposing the corporation. This Article describes the introduction of innovative proposals seeking to formalize corporate commitments to stakeholder governance. These “purpose proposals” reflect a new dynamic in the debate ...


Rethinking Breakups, Hiba Hafiz Apr 2022

Rethinking Breakups, Hiba Hafiz

Boston College Law School Faculty Papers

Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm ...


The Brand Defense, Hiba Hafiz Mar 2022

The Brand Defense, Hiba Hafiz

Boston College Law School Faculty Papers

Declining worker power—and increasing employer power—has suppressed wage growth and increased inequality. This decline is reinforced by contradictions in law that strengthen employers’ bargaining leverage over workers. This Article exposes those contradictions, tracing how employers have exploited the consumer rights revolution to devise brand protections and defenses that justify their control over vertically disintegrated labor markets. The Article takes a systemic view of intellectual property, antitrust, and work law to uncover their interconnected protection of employers’ brand rights at the expense of worker power. Based on the insights derived from this analysis, it proposes a suite of doctrinal ...


Business, Human Rights, & The Triple Planetary Crisis: Confronting Overconsumption, Sara Seck Mar 2022

Business, Human Rights, & The Triple Planetary Crisis: Confronting Overconsumption, Sara Seck

Articles, Book Chapters, & Popular Press

According to the United Nations, the world is facing a triple planetary crisis of climate change, nature (biodiversity) loss, and pollution and waste, with the most egregious consequences felt by those least responsible. These crises are also intertwined: nature-based solutions are promoted as climate change solutions even as heat domes fuel forest fires; extraction of minerals for green energy solutions negatively impacts biodiversity and creates pollution and waste; and carbon major companies are also among the largest producers of plastic pollution. International human rights law is increasingly grappling with environmental rights and responsibilities, as evidenced by the work of special ...


The Economic (In) Significance Of Executive Pay Esg Incentives, David Walker Feb 2022

The Economic (In) Significance Of Executive Pay Esg Incentives, David Walker

Faculty Scholarship

The hottest topic in corporate governance circles today involves company commitments to and pursuit of ESG (environmental, social, and governance) initiatives in addition to the traditional pursuit of profits. One facet of this debate has to do with how to motivate executives to pursue ESG goals. Increasingly, companies tie executive pay to ESG performance, although even strong ESG advocates debate the advisability of doing so. This Article joins the fray by closely examining ESG-based CEO pay arrangements at a subset of companies with leadership positions on the Business Roundtable, an industry trade group that embraced ESG in a 2019 statement ...


Law School News: National Housing Advocate Named To Lead Rwu's New Real Estate Initiatives 02/08/2022, Roger Williams University School Of Law Feb 2022

Law School News: National Housing Advocate Named To Lead Rwu's New Real Estate Initiatives 02/08/2022, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Influence By Intimidation: Business Lobbying In The Regulatory Process, Alex Acs, Cary Coglianese Feb 2022

Influence By Intimidation: Business Lobbying In The Regulatory Process, Alex Acs, Cary Coglianese

Faculty Scholarship at Penn Carey Law

Interest group influence in the policy process is often assumed to occur through a mechanism of exchange, persuasion, or subsidy. Here, we explore how business groups may also exert influence by intimidating policymakers—a form of persuasion, but one based not on the provision of policy information but of political information. We develop a theory where a business firm lobbies a regulator to communicate political information about its capacity to commit to future influence-seeking activities that would sanction the regulator. The regulator assesses the credibility of this message by evaluating the firm’s commitment to lobbying. Guided by our theory ...


Sustainability Obligations And Liabilities For The Company Director, Richard Allen, Michael Tang, Jan Tan, Gautam Mukharya Feb 2022

Sustainability Obligations And Liabilities For The Company Director, Richard Allen, Michael Tang, Jan Tan, Gautam Mukharya

Perspectives@SMU

SGX now requires its listees to issue a sustainability report. Why is this happening? And what do directors need to know?


Corporate Governance Reform And The Sustainability Imperative, Christopher Bruner Feb 2022

Corporate Governance Reform And The Sustainability Imperative, Christopher Bruner

Scholarly Works

Recent years have witnessed a significant upsurge of interest in alternatives to shareholder-centric corporate governance, driven by a growing sustainability imperative—widespread recognition that business as usual, despite the short-term returns generated, could undermine social and economic stability and even threaten our long-term survival if we fail to grapple with associated costs. We remain poorly positioned to assess corporate governance reform options, however, because prevailing theoretical lenses effectively cabin the terms of the debate in ways that obscure many of the most consequential possibilities. According to prevailing frameworks, our options essentially amount to board-versus-shareholder power, and shareholder-versus stakeholder purpose. This ...


Law School News: The Dean Meets The Governor 01-26-2022, Michael M. Bowden Jan 2022

Law School News: The Dean Meets The Governor 01-26-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Bilski And The Information Age A Decade Later, Michael Meurer Jan 2022

Bilski And The Information Age A Decade Later, Michael Meurer

Faculty Scholarship

In the years from State Street in 1999 to Alice in 2014, legal scholars vigorously debated whether patents should be used to incentivize the invention of business methods. That attention has waned just as economists have produced important new research on the topic, and just as artificial intelligence and cloud computing are changing the nature of business method innovation. This chapter rejoins the debate and concludes that the case for patent protection of business methods is weaker now than it was a decade ago.


Corporate Governance And The Feminization Of Capital, Sarah C. Haan Jan 2022

Corporate Governance And The Feminization Of Capital, Sarah C. Haan

Scholarly Articles

At the start of the twentieth century, women made up a small proportion of shareholders in American publicly traded companies. By 1956, women were the majority of individual shareholders. Although this change in shareholder gender demographics happened gradually, it was evident early in the century: Before the 1929 stock market crash, women shareholders had come to outnumber men at some of America’s largest and most influential corporations, including AT&T, General Electric, and the Pennsylvania Railroad. This Article synthesizes information from a range of historical sources to reveal an overlooked narrative of corporate history—the feminization of capital, or ...


Anonymous Companies, William J. Moon Jan 2022

Anonymous Companies, William J. Moon

Faculty Scholarship

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations.

This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies ...


Salt, Smurthwaite, And Smith: The Origins Of The Modern Legal Identity Of The Church Of Jesus Christ Of Latter-Day Saints, Nathan B. Oman Jan 2022

Salt, Smurthwaite, And Smith: The Origins Of The Modern Legal Identity Of The Church Of Jesus Christ Of Latter-Day Saints, Nathan B. Oman

Faculty Publications

In 2019 there existed a legal entity known as The Church of Jesus Christ of Latter-day Saints. This fact will likely strike most readers as unexceptional. More interesting, however, prior to 2019 there had been no such legal entity as the Church of Jesus Christ of Latter-day Saints for over 150 years, the last of that name likely having been disincorporated in 1862. Even more strangely, although there were millions of people around the globe who identified themselves as Latter-day Saints, in 2019 the only member of the legal entity known as The Church of Jesus Christ of Latter-day Saints ...


Shareholder Appraisal Rights: Delaware’S Flawed Market-Out Exception, Lin (Lynn) Bai, William A. Murphy Jan 2022

Shareholder Appraisal Rights: Delaware’S Flawed Market-Out Exception, Lin (Lynn) Bai, William A. Murphy

Faculty Articles and Other Publications

State statutes give dissenting shareholders an appraisal right in some, but not all corporate mergers. A widely adopted market-out exception denies appraisal if the shares are publicly traded. The rationale for market-out is that the public market offers a reliable valuation of the stocks and a convenient exit to dissenting shareholders. A major criticism of market-out is that market prices may not reflect the full value of the shares due to information asymmetry in mergers involving conflicts of interests. Delaware’s market-out approach is drastically different from that adopted by the Model Business Corporation Act (MBCA), but both have a ...


Contractual Stakeholderism, Kishanthi Parella Jan 2022

Contractual Stakeholderism, Kishanthi Parella

Scholarly Articles

In 2019, the Business Roundtable announced its commitment to all corporate stakeholders—consumers, employees, suppliers, and communities—and not just shareholders. This announcement has reawakened an old debate over corporate social responsibility. Stakeholderism advocates argue that corporate leaders must consider the interests of the various stakeholders impacted by corporate decision-making. Stakeholderism critics challenge this view, expressing concerns that stakeholderism will magnify managerial agency costs, chill regulation, risk inauthenticity, and lead to impractical solutions.

This Article proposes “contractual stakeholderism” to operationalize stakeholderism in accordance with the views of its advocates but in a way that is attentive to the concerns of ...


Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Edward J. Janger, Susan Block-Lieb Jan 2022

Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Edward J. Janger, Susan Block-Lieb

Faculty Scholarship

No abstract provided.


The Complex Dualisms Of Corporations And Democracy, Franklin A. Gevurtz Jan 2022

The Complex Dualisms Of Corporations And Democracy, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

These are perilous times for American democracy. Among the threats, many point to the power of corporations. This article examines that threat by considering a series of dualisms characterizing the relationship between corporations and democracy. This begins with a look at the anti- as well as the pro-democratic impacts of the earliest corporations and the paradoxes with respect to democracy created during the evolution of corporate law. The article then looks at internal corporate governance (so-called “corporate” or “shareholder democracy”) to show how, on the one hand, it contains features addressing some of the greatest current threats to American democracy ...


A Duty To Diversify, Anat Alon-Beck, Darren Rosenblum, Michal Agmon-Gonnen Jan 2022

A Duty To Diversify, Anat Alon-Beck, Darren Rosenblum, Michal Agmon-Gonnen

Faculty Publications

Fiduciary duties reflect the central role of leaders in corporate governance. Those with the most responsibility benefit the most from corporate success, but also bear commensurate fiduciary responsibilities. Equality, diversity, and inclusion may seem an odd fit among other fiduciary duties. However, fiduciary duties are where governance imposes the burden of “doing the right thing.” Fiduciary duties involve normatively good behavior that proves essential to ensuring responsible decision-making and achieving positive outcomes for firms.

Corporate law allows, encourages and perhaps, today, even mandates, corporate leaders to do the right thing. Not only does it seem appropriate to ask corporate leaders ...


Bargaining Inequality: Employee Golden Handcuffs And Asymmetric Information, Anat Alon-Beck Jan 2022

Bargaining Inequality: Employee Golden Handcuffs And Asymmetric Information, Anat Alon-Beck

Faculty Publications

Inaccurate unicorn firm valuation is a well-documented problem in the finance literature. Employees of these large, privately held companies do not have access to fair market valuation or financial statements and, in many cases, are denied access to such reports, even when requested. Unicorn employees are granted equity as a substantial part of their compensation, however due to the inferior position of employees in comparison to the start-up founders and other investors, information shedding light on the value of their equity grants has been withheld, as apparent in recent practices.

Start-up founders, investors, and their lawyers have systematically abused equity ...


Mythical Unicorns And How To Find Them: The Disclosure Revolution, Anat Alon-Beck, John Livingstone Jan 2022

Mythical Unicorns And How To Find Them: The Disclosure Revolution, Anat Alon-Beck, John Livingstone

Faculty Publications

Our federal and state securities laws are centered around two vital requirements for economic growth: capital formation and investor protection. Section 12(g) sits in the middle of these two concepts by attempting to ensure the latter without jeopardizing the former. However, since the passage of the Jumpstart Our Business Startups (“JOBS”) Act in 2012, exempt capital formation in the unregulated private market has increased dramatically. Companies raise nearly limitless capital from a wide range of sources while remaining outside of the public reporting regime. The overall shift has led to worse corporate governance outcomes, a decline in IPO volume ...


Duty And Diversity, Chris Brummer, Leo E. Strine Jr. Jan 2022

Duty And Diversity, Chris Brummer, Leo E. Strine Jr.

Faculty Scholarship at Penn Carey Law

In the wake of the brutal deaths of George Floyd and Breonna Taylor, a slew of reforms from Wall Street to the West Coast have been introduced, all aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope and degree of legal obligation and practical effects. In this Article, we provide an old answer to the new questions facing DEI policy, and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that ...


Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley Jan 2022

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each ...


Credit, Crises And Infrastructure: The Differing Fates Of Large And Small Businesses, Todd Baker, Kathryn Judge, Aaron Klein Jan 2022

Credit, Crises And Infrastructure: The Differing Fates Of Large And Small Businesses, Todd Baker, Kathryn Judge, Aaron Klein

Faculty Scholarship

This Essay sheds new light on the importance of credit creation infrastructure in determining who actually receives government support during periods of distress, and who continues to benefit after the acute phase of a crisis and the government’s formal support programs come to an end. The pandemic revealed, and the government’s response accentuated, meaningful asymmetries in the capacities of small and large businesses to access needed funding.

At first glance, it would seem that small businesses benefitted more than large ones from the government’s pandemic-support programs, as more government funds flowed into small businesses. Yet closer inspection ...