Law Commons^™

Arguments For And Against Territoriality, Reuven S. Avi-Yonah

Articles

The tax on dividends from the active income of controlled foreign corporations meets the criteria for a bad tax: It raises little revenue but significantly affects taxpayer behavior in undesirable ways.

Territoriality: For And Against, Reuven S. Avi-Yonah

Articles

The tax on dividends from the active income of controlled foreign corporations meets the criteria for a bad tax: It raises little revenue but significantly affects taxpayer behavior in undesirable ways.

Should The Us Dictate World Tax Policy? Reflections On Ppl, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court’s decision to grant certiorari in PPL offers it a unique opportunity to change the law regarding foreign tax credits that has significantly impeded the ability of other countries to engage in meaningful tax reform. In 1938 the Court said in dicta that to qualify for the FTC a tax had to be an income or excess profits tax (or a tax imposed in lieu thereof) under U.S. tax principles. This statement has led to an elaborate set of regulations defining what is an income tax, which has significantly hampered the ability of foreign countries to adopt …

From Kansas To The Congo: Why Naming And Shaming Corporations Through The Dodd-Frank Act's Corporate Governance Disclosure Won't Solve A Human Rights Crisis, Marcia Narine

Articles

No abstract provided.

What We Talk About When We Talk About Tax Exemption, Philip Hackney

Articles

Under the Internal Revenue Code, certain nonprofit organizations are granted exemption from federal income tax (“tax-exemption”). Most tax-exemption rationales assume tax-exemption is a subsidy for organizations such as charities that provide some underprovided good or service. These theories assume there should be a tax on the income of nonprofit organizations but provide no justification for this assumption. This article contributes to the literature by examining the corporate income tax rationales as a proxy for why we might tax nonprofit organizations. The primary two theories hold that the corporate tax is imposed to: (1) tax shareholders (“shareholder theory”), and (2) regulate …

Proposals For Corporate Governance Reform: Six Decades Of Ineptitude And Counting, Douglas M. Branson

Articles

This article is a retrospective of corporate governance reforms various academics have authored over the last 60 years or so, by the author of the first U.S. legal treatise on the subject of corporate governance (Douglas M. Branson, Corporate Governance (1993)). The first finding is as to periodicity: even casual inspection reveals that the reformer group which controls the "reform" agenda has authored a new and different reform proposal every five years, with clock-like regularity. The second finding flows from the first, namely, that not one of these proposals has made so much as a dent in the problems that …

Veil-Piercing Unbound, Peter B. Oh

Articles

Veil-piercing is an equitable remedy. This simple insight has been lost over time. What started as a means for corporate creditors to reach into the personal assets of a shareholder has devolved into a doctrinal black hole. Courts apply an expansive list of amorphous factors, attenuated from the underlying harm, that engenders under-inclusive, unprincipled, and unpredictable results for entrepreneurs, litigants, and scholars alike.

Veil-piercing is misapplied because it is misconceived. The orthodox approach is to view veil-piercing as an exception to limited liability that is justified potentially only when the latter is not, a path that invariably leads to examining …

A Changing Mosaic In Sec Regulation And Enforcement: Broker-Dealers And Investment Advisers, Douglas M. Branson

Articles

The 2010 Dodd-Frank Act directed the SEC to study the issue of whether the Commission should, by regulation, decree broker-dealers (“registered representatives”) subject to the same fiduciary standards applicable to investment advisers, applicable at least since SEC v. Capital Gains Research Bureau, 385 U.S. 180 (1963). The SEC completed such a study in 2011, predictably recommending that the Commission exercise the authority Dodd-Frank had given it, namely, waving its wand, declaring brokers fiduciaries. Many able academics and regulators have adumbrated the pros and the cons of such a regulatory step. To date, however, the SEC has done nothing, undoubtedly …

Back To The Future, Sergio J. Campos

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No abstract provided.

Accelerating The Growth Of The Next Generation Of Innovators, Dana Thompson

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In a recent study on the best practices of business incubators that contribute to the success of startups, one of the best practices asserted is to include a business lawyer on the advisory board of business incubators, who may suggest necessary legal issues for startups to address and connect the incubator startups with legal assistance. Although many college and university incubators may have access to experienced attorneys who are able to provide advice, and who are able to represent student-led ventures, most do not have access to a university law clinic established to provide pro bono, direct legal representation and …

Revisiting 'Truth In Securities Revisited': Abolishing Ipos And Harnessing Private Markets In The Public Good, Adam C. Pritchard

Articles

My thesis is that the transition between private- and public-company status could be less bumpy if we unify the public-private dividing line under the Securities Act and Exchange Act. The insight builds on Cohen's thought experiment where Congress first enacted the Exchange Act. My proposed public-private standard would take the company-registration model to its logical conclusion. The customary path to public-company status is through an IPO, typically with simultaneous listing of the shares on an exchange. There is nothing about public offerings, however, that makes them inherently antecedent to public-company status. What if companies became public, with required periodic disclosures …

Corporate And International Tax Reform: Proposals For The Second Obama Administration (And Beyond), Reuven S. Avi-Yonah

Articles

The passage of the American Taxpayer Relief Act of 2012 (ATRA) offers an opportune moment to consider proposals for corporate and international tax reform. With the debate over individual tax rates for the income and estate tax settled for the present, the President and Congress are free to consider broader reforms. Few observers doubt that such reforms are sorely needed, for several reasons. First, the long-term budgetary outlook is unsustainable. Second, the U.S. corporate tax rate is the highest in the Organisation for Economic Co-Operation and Development (OECD). Third, the current system raises relatively little revenue and large amounts of …

Private Regulation Of Insider Trading In The Shadow Of Lax Public Enforcement: Evidence From Canadian Firms, Laura Nyantung Beny, Anita Anand

Articles

Like firms in the United States, many Canadian firms voluntarily restrict trading by corporate insiders beyond the requirements of insider trading laws (i.e., super-compliance). Thus, we aim to understand the determinants of firms’ private insider trading policies (ITPs), which are quasi-contractual devices. Based on the assumption that firms that face greater costs from insider trading (or greater benefits from restricting insider trading) ought to be more inclined than other firms to adopt more stringent ITPs, we develop several testable hypotheses. We test our hypotheses using data from a sample of firms included in the Toronto Stock Exchange/Standard and Poor’s (TSX/S&P) …

Deferred Prosecution And Non-Prosecution Agreements And The Erosion Of Corporate Criminal Liability, David M. Uhlmann

Articles

On April 5, 2010, a massive explosion killed twenty-nine miners at Massey Energy's Upper Big Branch mine near Montcoal, West Virginia. Following the explosion, President Barack Obama vowed that the U.S. Department of Labor would conduct "the most thorough and comprehensive investigation possible" and work with the U.S. Department of Justice ("Justice Department" or the "Department") to address any criminal violations. Later in the month, the President and Vice President flew to West Virginia to eulogize the victims and comfort their families. It was the nation's worst coal mining disaster in forty years. The tragic loss of life at the …