Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Business Organizations Law (16)
- Banking and Finance Law (8)
- Securities Law (7)
- Law and Economics (5)
- Taxation-Federal (5)
-
- Taxation-Transnational (5)
- Contracts (3)
- Business (2)
- Commercial Law (2)
- Insurance Law (2)
- Labor and Employment Law (2)
- Social and Behavioral Sciences (2)
- Torts (2)
- Antitrust and Trade Regulation (1)
- Business Administration, Management, and Operations (1)
- Business Law, Public Responsibility, and Ethics (1)
- Business and Corporate Communications (1)
- Common Law (1)
- Comparative and Foreign Law (1)
- Constitutional Law (1)
- Evidence (1)
- International Trade Law (1)
- Law and Race (1)
- Law and Society (1)
- Legal Studies (1)
- Litigation (1)
- Nonprofit Organizations Law (1)
- Organizations Law (1)
- Policy Design, Analysis, and Evaluation (1)
- Institution
-
- Duke Law (7)
- University of Michigan Law School (7)
- Penn State Law (2)
- University of Florida Levin College of Law (2)
- University of North Carolina School of Law (2)
-
- University of Pennsylvania Carey Law School (2)
- Mitchell Hamline School of Law (1)
- Santa Clara Law (1)
- Syracuse University (1)
- University of Colorado Law School (1)
- University of Georgia School of Law (1)
- University of Miami Law School (1)
- Washington University in St. Louis (1)
- Washington and Lee University School of Law (1)
Articles 1 - 30 of 30
Full-Text Articles in Law
Managing Expectations: Does The Directors' Duty To Monitor Promise More Than It Can Deliver?, Lisa Fairfax
Managing Expectations: Does The Directors' Duty To Monitor Promise More Than It Can Deliver?, Lisa Fairfax
All Faculty Scholarship
This article grapples with whether we are expecting too much from the duty of oversight. The directors’ oversight duty refers to directors’ responsibility to actively monitor corporate officers, employees, and corporate affairs. Directors breach their oversight duty when officers and employees engage in wrongdoing that causes harm to the corporation and that wrongdoing can be attributed to directors’ failure to monitor. In other words, oversight liability holds directors liable for their failure to act under circumstances where it can be proven that directors should have acted and their actions could have prevented corporate harm.
The significance of directors’ oversight duty …
"Systemic Poverty As A Cause Of Recessions", Robert Ashford
"Systemic Poverty As A Cause Of Recessions", Robert Ashford
College of Law - Faculty Scholarship
This article argues that the failure to address and ameliorate systemic poverty is a major cause of recessions. Recessions occur (and sub-optimal employment and growth persist) when a critical mass of market participants come to believe that the distribution of future earning capacity is not sufficient to purchase what can be produced despite the physical and technological capacity to employ available labor and capital to produce more over the same period even at lower unit cost. The essence of systemic poverty is widespread inadequate earning capacity. In recessionary periods, with rising unemployment, the problem of inadequate earning capacity (which perennially …
Consumer Lock-In And The Theory Of The Firm, David Yosifon
Consumer Lock-In And The Theory Of The Firm, David Yosifon
Faculty Publications
When shareholders invest in a corporation they become “locked-in” to the prospects of that firm. A shareholder cannot force the firm to buy back her shares, nor can she force it to dissolve and turn over her pro rata share of its assets. She gets nothing for her capital unless the firm profits and pays dividends, or she finds someone else willing to buy her stock. Corporate law scholars have recognized that capital “lock-in” is both a corporate law solution that enables large-scale business to flourish, and a corporate law problem that threatens the growth and proper governance of big …
Slicing The Shadow: A Proposal For Updating U.S. International Taxation, Reuven S. Avi-Yonah
Slicing The Shadow: A Proposal For Updating U.S. International Taxation, Reuven S. Avi-Yonah
Articles
In the article Avi-Yonah proposed that the United States tax multinational corporations using a formulary apportionment system based solely on income derived from sales. The background for the article was drawn principally from Robert Reich’s The Work of Nations (1991), and the analysis was inspired by Stanley I. Langbein’s work on transfer pricing, especially his seminal article "The Unitary Method and the Myth of Arm’s Length," Tax Notes, Feb. 17, 1986, p. 625; see also Louis Kauder, "Intercompany Pricing and Section 482: A Proposal to Shift From Uncontrolled Comparables to Formulary Apportionment Now," Tax Notes, Jan. 25, 1993, p. 485.
Vive La Petite Difference: Camp, Obama, And Territoriality Reconsidered, Reuven S. Avi-Yonah
Vive La Petite Difference: Camp, Obama, And Territoriality Reconsidered, Reuven S. Avi-Yonah
Articles
The recent tax reform proposals by House Ways and Means Committee Chair David Camp, R-Mich., and by President Obama seem to offer starkly contrasting visions of how to reform the taxation of foreign-source income earned by U.S.-based multinational enterprises.1 Both acknowledge the problem, which is that U.S.-based MNEs currently have more than $1 trillion of ‘‘permanently reinvested’’ income offshore, which they cannot bring back to the U.S. without incurring a 35 percent tax penalty. However, they seem to offer radically different solutions: Under the Camp proposal, a participation exemption will enable U.S.-based MNEs to bring back the income without paying …
Shareholder Eugenics In The Public Corporation, Edward B. Rock
Shareholder Eugenics In The Public Corporation, Edward B. Rock
All Faculty Scholarship
In a world of active, empowered shareholders, the match between shareholders and public corporations can potentially affect firm value. This article examines the extent to which publicly held corporations can shape their shareholder base. Two sorts of approaches are available: direct/recruitment strategies; and shaping or socialization strategies. Direct/recruitment strategies through which “good” shareholders are attracted to the firm include: going public; targeted placement of shares; traditional investor relations; the exploitation of clientele effects; and de-recruitment. “Shaping” or “socialization” strategies in which shareholders of a “bad” or unknown type are transformed into shareholders of the “good” type include: choice of domicile; …
Reconsidering The Separation Of Banking And Commerce, Mehrsa Baradaran
Reconsidering The Separation Of Banking And Commerce, Mehrsa Baradaran
Scholarly Works
This Article examines the long-held belief that banking and commerce need to be kept separate to ensure a stable banking system. Specifically, the Article criticizes the Bank Holding Company Act (“BHCA”), which prohibits nonbanking entities from owning banks. The recent banking collapse has caused and exacerbated several problematic trends in U.S. banking, especially the conglomeration of banking entities and the homogenization of assets. The inflexible and outdated provisions of the BHCA are a major cause of these trends. Since the enactment of the BHCA, the landscape of U.S. banking has changed dramatically, but the strict separation of banking and commerce …
Punctilios And Nonprofit Corporate Governance--A Comprehensive Look At Nonprofit Directors' Fiduciary Duties, Thomas Lee Hazen, Lisa Love Hazen
Punctilios And Nonprofit Corporate Governance--A Comprehensive Look At Nonprofit Directors' Fiduciary Duties, Thomas Lee Hazen, Lisa Love Hazen
Faculty Publications
No abstract provided.
The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French
Journal Articles
As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French
Journal Articles
Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …
Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page
Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page
UF Law Faculty Publications
The Supreme Court’s 1911 decision in Standard Oil gave us embryonic versions of two foundational standards of liability under the Sherman Act: the rule of reason under Section 1 and the monopoly power/exclusionary conduct test under Section 2. But a case filed later in 1911, United States v. United States Steel Corporation, shaped the understanding of Standard Oil’s standards of liability for decades. U.S. Steel, eventually decided by the Supreme Court in 1920, upheld the 1901 merger that created "the Corporation," as U.S. Steel was known. The majority found that the efforts of the Corporation and its …
Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman P.Q. Johnson
Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman P.Q. Johnson
Scholarly Articles
This paper, part of a larger scholarly project, addresses one of four areas – i.e., the emergence of corporate personhood – where, historically, law has both influenced and mirrored cultural expectations concerning corporate responsibility. The other areas (treated elsewhere) are corporate purpose, corporate regulation, and corporate governance. Corporate personhood is a subject of longstanding and recurring interest that, notwithstanding it has been a settled concept since the 19th century, continues to vex and excite, as seen in the U. S. Supreme Court’s splintered 5-4 decision in the 2010 case of Citizens United v. Federal Election Commission. The decades-long debates about …
Delaware Dissolves The Glue Of Capitalism: Exonerating From Claims Of Incompetence Those Who Manage Other People's Money, Daniel S. Kleinberger
Delaware Dissolves The Glue Of Capitalism: Exonerating From Claims Of Incompetence Those Who Manage Other People's Money, Daniel S. Kleinberger
Faculty Scholarship
Delaware law is the leading source of non-federal law governing U.S. business organizations. Over the past 25 years that law has tilted further and further toward insulating individuals who manage business firms from any liability to the firms’ owners based on claims of misconduct. These developments have occurred both in corporate law and the law of unincorporated organizations.
Although often described as consistent with market principles, these developments actually undercut the proper functioning of a market system. Effective competition among firms does not require a “dog eat dog” mentality within firms. Managerial responsibility is a prerequisite to healthy firms, which …
Symposium On International Taxation And Competitiveness: Introduction And Overview, Reuven S. Avi-Yonah, Nicola Sartori
Symposium On International Taxation And Competitiveness: Introduction And Overview, Reuven S. Avi-Yonah, Nicola Sartori
Articles
In February, 2012, the Treasury and White House unveiled President Obama's Framework for Business Tax Reform. A major proposal was to abolish the deferral on income earned by foreign subsidiaries of U.S. corporations ("CFCs").
Transfer Pricing Disputes In The United States, Reuven S. Avi-Yonah
Transfer Pricing Disputes In The United States, Reuven S. Avi-Yonah
Book Chapters
In 1988, the US Treasury Department published a study of inter-company pricing (the 'White Paper') that included the following endorsement of the so-called arm's length standard (ALS) for examining the reasonableness of transactions between related parties for tax purposes: The arm's length standard is embodied in all U.S. tax treaties; it is in each major model treaty, including the U.S. Model Convention; it is incorporated into most tax treaties to which the United States is not a party; it has been explicitly adopted by international organizations that have addressed themselves to transfer pricing issues; and virtually every major industrial nation …
Pathway To Minority Shareholder Protection: Derivative Actions In The People's Republic Of China, Donald C. Clarke, Nicholas C. Howson
Pathway To Minority Shareholder Protection: Derivative Actions In The People's Republic Of China, Donald C. Clarke, Nicholas C. Howson
Book Chapters
Using a dataset of Chinese judicial opinions arising in over fifty cases, this paper analyses the development and current implementation of shareholder derivative actions in the courts of the People’s Republic of China (“PRC”), both before and after the derivative lawsuit was explicitly authorized in the PRC’s 2006 Company Law effective January 1, 2006. In addition, we describe the very unique ecology of enterprise organization and corporate governance in modern China, and critique the formal design of the derivative action and offer reform suggestions. We find the design of the Chinese derivative lawsuit to be, in some respects, innovative and …
Executive Trade Secrets, Tom C.W. Lin
Executive Trade Secrets, Tom C.W. Lin
UF Law Faculty Publications
The law discriminates among a corporation’s secrets. In the eyes of the law, commercial secrets of corporations are legitimate secrets that deserve legal protection and nondisclosure, but personal secrets of executives are not as deserving of legal protection and nondisclosure. This divergent treatment of secrets has resulted in a legal landscape of perplexing, paradoxical paths for corporations and executives concerning executive disclosures — a precarious landscape that has left corporations and investors dangerously susceptible to revelations of private facts that shock market valuation and institutional stability.
This Article explores this divergent treatment of secrets in the context of public corporations …
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin
Publications
This Article challenges the corporate-constructed image of American business and industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and doctrinal corporate law, this Article examines the ways that social and legal actors understand what it means for a corporation or its products to be American. In a global economy, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bailout of American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted public/private nature of the corporate …
What Is Securitization? And For What Purpose?, Steven L. Schwarcz
What Is Securitization? And For What Purpose?, Steven L. Schwarcz
Faculty Scholarship
In Re: Defining Securitization, Professor Jonathan Lipson attempts to define a “true” securitization transaction, ultimately characterizing it as “a purchase of primary payment rights by a special purpose entity that (1) legally isolates such payment rights from a bankruptcy (or similar insolvency) estate of the originator, and (2) results, directly or indirectly, in the issuance of securities whose value is determined by the payment rights so purchased.” There is much to admire in Lipson’s attempt but also much to question.
Let me start with the admiration. Lipson’s article is by far the most systematic and thoughtful analysis of what …
Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine
Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine
Articles
No abstract provided.
The Effective Tax Rate Of The Largest Us And Eu Multinationals, Reuven S. Avi-Yonah, Yaron Lahav
The Effective Tax Rate Of The Largest Us And Eu Multinationals, Reuven S. Avi-Yonah, Yaron Lahav
Articles
The United States has the second highest statutory corporate tax rate in the Organization for Economic Co-Operation and Development (OECD) (after Japan).1 This has not always been the case. After the Tax Reform Act of 1986 lowered the U.S. rate from 46% to 34%,2 the United States had one of the lowest statutory corporate tax rates in the OECD.3 In the past twenty-five years, however, the U.S. rate has remained essentially unchanged (it was raised to 35% in 1993),4 while most other OECD countries reduced their statutory rate so that the OECD average statutory corporate tax rate is 25.1%.
Citizens United And The Roberts Court's War On Democracy, Gene Nichol
Citizens United And The Roberts Court's War On Democracy, Gene Nichol
Faculty Publications
No abstract provided.
L3cs: An Innovative Choice For Urban Entrepreneurs And Urban Revitalization, Dana Thompson
L3cs: An Innovative Choice For Urban Entrepreneurs And Urban Revitalization, Dana Thompson
Articles
Social enterprises offer fresh ways of addressing seemingly intractable social problems, such as high levels of unemployment and poverty in economically distressed urban areas in the United States. Indeed, although social enterprises have deep and longstanding roots, the recent iteration of the social enterprise movement is gaining momentum in the United States and globally. Though there is not a singularly accepted legal definition of social enterprises, they are popularly known as businesses that use forprofit business practices, principles, and discipline to accomplish socially beneficial goals. Social entrepreneurs, those who operate social enterprises, eschew a traditional notion of charity, which primarily …
The 2011 Diane Sanger Memorial Lecture Protecting Investors In Securitization Transactions: Does Dodd–Frank Help, Or Hurt?, Steven L. Schwarcz
The 2011 Diane Sanger Memorial Lecture Protecting Investors In Securitization Transactions: Does Dodd–Frank Help, Or Hurt?, Steven L. Schwarcz
Faculty Scholarship
Securitization has been called into question because of its role in the recent financial crisis. Schwarcz examines the potential flaws in the securitization process and compare how the Dodd–Frank Act treats them. Although Dodd–Frank addresses one of the flaws, it underregulates or fails to regulate other flaws. It also overregulates by addressing aspects of securitization that are not flawed.
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin
Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin
Scholarship@WashULaw
This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national …
The Use And Abuse Of Special-Purpose Entities In Public Finance, Steven L. Schwarcz
The Use And Abuse Of Special-Purpose Entities In Public Finance, Steven L. Schwarcz
Faculty Scholarship
States increasingly are raising financing indirectly through special-purpose entities (SPEs), variously referred to as authorities, special authorities, or public authorities. Notwithstanding their long history and increasingly widespread use, relatively little is known or has been written about these entities. This article examines state SPEs and their functions, comparing them to SPEs used in corporate finance. States, even more than corporations, use these entities to reduce financial transparency and avoid public scrutiny, seriously threatening the integrity of public finance. The article analyzes how regulation could be designed in order to control that threat while maintaining the legitimate financing benefits provided by …
The Roberta Mitchell Lecture: Structuring Responsibility In Securitization Transactions, Steven L. Schwarcz
The Roberta Mitchell Lecture: Structuring Responsibility In Securitization Transactions, Steven L. Schwarcz
Faculty Scholarship
In this Lecture, Professor Schwarcz examines how complex securitization transactions may have created a “protection gap,” the conundrum that transaction parties may be unable to purchase or might not want to pay the price for full protection. As a result, they sometimes choose or are forced to assume the good faith of the other parties to the transaction and the consistency and completeness of protections provided in the transaction documents.
In-House Counsel’S Role In The Structuring Of Mortgage-Backed Securities, Steven L. Schwarcz, Shaun Barnes, Kathleen G. Cully
In-House Counsel’S Role In The Structuring Of Mortgage-Backed Securities, Steven L. Schwarcz, Shaun Barnes, Kathleen G. Cully
Faculty Scholarship
The authors introduce the financial crisis and the role played by mortgage-backed securities. Then describe the controversy at issue: whether, in order to own and enforce the mortgage loans backing those securities, a special-purpose vehicle “purchasing” mortgage loans must take physical delivery of the notes and security instruments in the precise manner specified by the sale agreement. Focusing on this controversy, the authors analyze (i) the extent, if any, that the controversy has merit; (ii) whether in-house counsel should have anticipated the controversy; and (iii) what, if anything, in-house counsel could have done to avert or, after it arose, to …
Regulating Shadow Banking, Steven L. Schwarcz
Regulating Shadow Banking, Steven L. Schwarcz
Faculty Scholarship
Inaugural Address for Boston University Review of Banking & Financial Law's Inaugural Symposium: “Shadow Banking” February 24, 2012.
Although shadow banking is said to be huge, estimated at over $60 trillion, it is not well defined. This short and accessible paper attempts to define shadow banking by identifying its overall scope and its basic characteristics. Based on the definition derived, the paper also conceptually examines how shadow banking can be regulated to try to maximize its efficiencies while minimizing its risks.
Direct And Indirect U.S. Government Debt, Steven L. Schwarcz
Direct And Indirect U.S. Government Debt, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.