Law Commons^™

Business Decisions By The New Board: Behavioral Science And Corporate Law, Robert J. Haft

Michigan Law Review

This Article's thesis is that, by reason of its recently secured independence from management domination, the boards of directors of large American corporations are now in a unique position to make business decisions of the highest quality, and that corporate law should respond to this potential appropriately. On the basis of findings in the behavioral sciences, this Article urges a limited rethinking of the role of the chief executive and the board of directors before the model of directors as "monitors" of the chief executive's performance is frozen in place. Already armed with information supposedly received as monitors, the independent …

Corporate Indemnification Of Directors And Officers: Time For A Reappraisal, K.G. Jan Pillai, Craig Tractenberg

University of Michigan Journal of Law Reform

This Article evaluates the benefits and burdens of shifting litigation risk from management to the enterprise. The Article begins by considering the nature of the legal risks confronting the corporate executive, and the principles of common law that developed to counter those risks. The Article proceeds to assess the two statutory responses to threats of personal liability against the corporate executive: indemnification statutes, and director and officer insurance. Finally, after comparing the effective absolute immunity available to corporate executives with the qualified immunity enjoyed by high-level government officials, the Article concludes that indemnification practices have overinsulated the corporate officer from …

Accidents: Causation And Responsibility In Law, A Focus On Coal Mining, J. Davitt Mcateer

West Virginia Law Review

No abstract provided.

Independent Contractor Safety In The Mines: A Review And Analysis Of Regulatory History With Proposals For Change, Diane C. Chernoff

West Virginia Law Review

No abstract provided.

Capital Expenditures: A Result In Search Of A Rationale, John W. Lee, Nina R. Murphy

Faculty Publications

No abstract provided.

Ogiony V. Commissioner, 617 F.2d 14 (2d Cir. 1980), Vincent A. Sable

Florida State University Law Review

Taxation-DISREGARDING THE CORPORATE ENTITY-PARTNERS UNABLE TO IGNORE EXISTENCE OF CORPORATION USED FOR FINANCING PURPOSES

Franchise Regulation: Comprehensive State Regulation Now Unnecessary, Robert C. Downs

Faculty Works

Since 1970, there has been an epidemic of state regulatory activity con­cerning the sale of franchises and business opportunities. In addition to those states which actually have adopted franchise regulation statutes, several state legislatures currently are considering pending legislation. Undoubtedly, other states, including Missouri, soon will have the opportunity to protect their un­suspecting citizens from the risks believed to be inherent in the franchising industry.

Nor has the franchising business gone unnoticed by the federal govern­ment. On December 21, 1978, the Federal Trade Commission (FTC) published its rule 436, entitled "Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures." …

Implied Rights Of Action, Tamar Frankel

Faculty Scholarship

In Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis,¹ the United States Supreme Court declined to imply a private right of action for damages under the Investment Advisers Act of 1940.² Transamerica is the most recent of a series of Supreme Court decisions limiting the availability and scope of implied private actions under the federal securities laws.³ It stands in sharp contrast to J.L Case Co. v. Borak,⁴ a 1964 decision in which the Court seemed to extend an open invitation to "private attorneys general" to supplement SEC enforcement with private damage actions.

The Court's withdrawal from …

Investment Company Advertising, Tamar Frankel

Faculty Scholarship

SEC Regulation has changed from specific guidelines for advertisers to a general antifraud provision. Despite greater latitude, conflicts may arise between the commission's regulation and first amendment protection of commercial speech.

Washington's Doctrine Of Corporate Disregard, Thomas V. Harris

Washington Law Review

Corporations are ordinarily recognized as legal entities separate and distinct both from their own shareholders, officers, and directors, and from other corporations. There are, however, situations in which the Washington courts will not recognize this separateness. In such cases, the shareholders, officers, directors, or even wholly separate corporations, are held responsible for the corporation's activities. When they have refused to recognize the corporation as a separate legal entity, Washington's courts have employed the "doctrine of disregard." The consequences of the doctrine are not borne by the corporation. Frequently, its underlying liability has already been established. In other cases, the corporation's …

Tax Apportionment Of The Income Of A Unitary Business: An Examination Of Mobil Oil Corp. V. Commissioner Of Taxes Of Vermont, William D. Dexter

BYU Law Review

No abstract provided.

The Impact Of The Mobil Case On Apportionment Of Income, Frank M. Keesling

BYU Law Review

No abstract provided.

Washington's Doctrine Of Corporate Disregard, Thomas V. Harris

Washington Law Review

Corporations are ordinarily recognized as legal entities separate and distinct both from their own shareholders, officers, and directors, and from other corporations. There are, however, situations in which the Washington courts will not recognize this separateness. In such cases, the shareholders, officers, directors, or even wholly separate corporations, are held responsible for the corporation's activities. When they have refused to recognize the corporation as a separate legal entity, Washington's courts have employed the "doctrine of disregard." The consequences of the doctrine are not borne by the corporation. Frequently, its underlying liability has already been established. In other cases, the corporation's …

Equity Insolvency And The New Model Business Corporation Act, Daniel T. Murphy

Law Faculty Publications

By eliminating earned and capital surplus, the new Model Business Corporation Act may be perceived as providing directors with some additional flexibility regarding distributions to shareholders. As a practical matter however, the statute does not dramatically enlarge the ambit of their discretion. Directors have always had the flexibility to make distributions from both earned or capital surplus. The distributions are still tempered, as they were under the old statute, by the notion of equity solvency. On the other hand, the Comment to new section 45 provides the board of directors with substantial guidance of the proper methodology to use in …

Introduction: Transnational Corporate Concentration-The Issues, Thomas E. Kauper

Michigan Journal of International Law

Competition policy in the United States, particularly reflected in antitrust policy, in recent years has focused on corporate structure. To some, this emphasis simply reflects a belief in a close correlation between corporate structure and behavior. A single firm monopoly inevitably will restrict output and raise prices above levels that would prevail under competition conditions, distorting allocative efficiency. The behavioral pattern is a direct consequence of structure. Many believe that high corporate concentration, even short of single firm monopoly, is at least conducive to, if not a cause of, monopolistic behavior. Some also view high corporate concentration, and the aggregation …

International Implications Of Limitations On "Aggregate Concentration", David Boies

Michigan Journal of International Law

Traditionally, antitrust laws have been concerned with competition and concentration within a single market. In the past few years, however, increasing attention has been given to economywide or aggregate concentration-especially when such concentration is accomplished by merger rather than by internal growth. In 1979 and 1980, Congress considered Senate Bill S. 600 which would limit mergers based on size criteria that are unrelated, at least directly, to proof of a lessening of competition within any given market. The international implications of applying this principle are complex and difficult, and have yet to be fully addressed. It is the purpose of …

Doctrines And Problems Relating To U.S. Control Of Transnational Corporate Concentration, Douglas E. Rosenthal, Stuart E. Benson, Lisa Chiles

Michigan Journal of International Law

It is the principal thesis of this article that important recent case decisions in U.S. antitrust law reflect just this conflict over the extent to which intraindustry (horizontal) concentration is economically harmful. We are at a point where the future direction of the law is difficult to discern. Until there is greater U.S. policy agreement, and consistency within U.S. law itself, it is unlikely that any common transnational response will emerge to even horizontal corporate concentration. Ironically, it may not be possible to clarify U.S. antitrust law as long as the underlying policy conflict remains so sharp. For the present, …

The "Economic" Analysis Of Transnational Mergers, William James Adams

Michigan Journal of International Law

No congregation of lawyers can be considered complete without a token economist. The role of the economist consists of describing the economic mode of analyzing the legal problem under consideration. Unfortunately from the standpoint of the token, economists rarely agree on criteria appropriate for the appraisal of economic phenomena. With respect to transnational corporate mergers, four modes of analysis may be described legitimately as economic.

United Kingdom Regulation Of Transnational Corporate Concentration, J. Denys Gribbin

Michigan Journal of International Law

This article begins by describing the United Kingdom's policy toward outward and inward direct investment and then sets out the essentials of the competition laws that are among the major, nondiscriminatory regulatory mechanisms that affect corporate behavior and planning. The article also analyzes the development of competition policy as a microeconomic instrument along with its application to monopoly, oligopoly, and cartels involving transnational corporations. Competition policy, except for cartels, is shown to be relatively benign toward mergers until recently, and with respect to monopoly and oligopoly has sought remedies in regulation of prices and behavior rather than through structural change. …

Sherman Act Applications To Predation By Controlled Economy Enterprises Marketing In The United States: Departures From Mechanical Formulae, Deborah M. Levy

Michigan Journal of International Law

In a reproachful dissent in United States v. Columbia Steel, the late Justice Douglas sought to remind his brethren what the antitrust laws of the United States are all about: [A]ll power tends to develop into a government in itself. Power that controls the economy should be in the hands of elected representatives of the people, not in the hands of an industrial oligarchy. Industrial power should be decentralized.... That is the philosophy and the command of the Sherman Act.

Structural Aspects Of Multinational Corporate Trade With The Nonmarket Economies Of Eastern Europe: An Mnc Perspective On Domestic And Foreign Regulation, John G. Scriven

Michigan Journal of International Law

In considering the structural aspects of multinational corporate trade relationships with the nonmarket economies of Eastern Europe, it is important, as a preliminary matter, to acknowledge certain intractable features of that trade. Only through a continuing awareness of the interplay of these factors can one hope to understand the role of law or regulation in trade with these states.

Reflections On Recent Oecd Activities: Regulation Of Multinational Corporate Conduct And Structure, Kurt Stockmann

Michigan Journal of International Law

In recent, years, the Organization for Economic Cooperation and Development (OECD) has repeatedly addressed, in a variety of forms, the problem of transnational corporate concentration. In the field of restrictive business practices, it has made suggestions on specific antitrust problems, issued council recommendations, and promulgated the 1976 Concil Guidelines for multinational enterprises. Not surprisingly for an organization that adheres to the principle of unanimity and, consequently, is governed by the law of the smallest common denominator, these efforts have thus far focused more on procedure than on substance. Even where quasisubstantive rules have been adopted, such as in competition guideline …

The New Debt-Equity Regulations Under The Internal Revenue Code, Christopher R. Hoyt

Faculty Works

One of the most litigated tax issues is whether an interest in a corporation is stock or debt. Although stock and debt have many similar characteristics, the tax consequences can vary drastically depending on which interest exists. Recognizing the need to end this uncertainty, Con­gress enacted section 385 of the Internal Revenue Code as part of the Tax Reform Act of 1969. That section authorized the Treasury Department to issue regulations distinguishing debt from equity for all tax purposes and listed five factors that may be considered. On December 29, 1980, the department filed final regulations scheduled to become effective …

The Power Of Directors To Terminate Shareholder Litigation: The Death Of The Derivative Suit?, George W. Dent

Faculty Publications

This article will analyze the problems raised by the board's attempt to terminate shareholder suits and will advance proposals to deal with those problems.

Equity Insolvency And The New Model Business Corporation Act, Daniel T. Murphy

University of Richmond Law Review

One consequence of the recent and far-reaching revisions to the financial provisions of the Model Business Corporation Act (hereafter the "Model Act") is to re-focus attention on the significance of the elusive concept of equity insolvency as it affects corporate distributions.

The Valuation Of A Close Corporation: Glimpses Of Objectivity In An Inflationary Period, James E. Cushing Jr.

Loyola University Chicago Law Journal

No abstract provided.

Partnership Allocations And Capital Accounts Analysis, Donald J. Weidner

Scholarly Publications

No abstract provided.

Index

Michigan Journal of International Law

Index of terms used in this volume.

Corporate Distributions And The Income Tax: A Consideration Of The Inconsistency Between Subchapter C And Its Underlying Policy, Charles O'Kelley

Faculty Articles

The issue of whether the sale of shares to an issuer shall be treated as a dividend or as received in exchange for a capital asset has troubled Congress, courts, and commentators since the Revenue Act of 1913. If a corporation redeems some of its shares or distributes all of its assets in complete liquidation, the transaction is generally described as having the characteristics of a divided to the extent the distribution is ‘out of earnings and profits' and the characteristics of a sale to the extent that it terminates the equity interest of the redeemed party. In light of …

"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.

Michigan Law Review

Because this Article's arguments are interwoven, a preliminary roadmap seems advisable. First, Section I will examine three perspectives on corporate punishment and will develop several concepts in terms of which corporate penalties should be evaluated. Although this analysis will suggest several barriers to effective corporate deterrence, Section II will explain why a sensible approach to corporate misbehavior still must punish the firm as well as the individual decision- maker. Section III will then evaluate three proposed approaches: (1) the "equity fine,'' (2) the use of adverse publicity, and (3) the fuller integration of public and private enforcement. In addition, it …