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Articles 241 - 270 of 359
Full-Text Articles in Agency
The Theory Of Fields And Its Application To Corporate Governance, Neil Fligstein
The Theory Of Fields And Its Application To Corporate Governance, Neil Fligstein
Seattle University Law Review
My goal here is twofold. First, I want to introduce the theory of strategic action fields to the law audience. The main idea in field theory in sociology is that most social action occurs in social arenas where actors know one another and take one another into account in their action. Scholars use the field construct to make sense of how and why social orders emerge, reproduce, and transform. Underlying this formulation is the idea that a field is an ongoing game where actors have to understand what others are doing in order to frame their actions. Second, I want …
Agency Theory As Prophecy: How Boards, Analysts, And Fund Managers Perform Their Roles, Jiwook Jung, Frank Dobbin
Agency Theory As Prophecy: How Boards, Analysts, And Fund Managers Perform Their Roles, Jiwook Jung, Frank Dobbin
Seattle University Law Review
In 1976, Michael Jensen and William Meckling published a paper reintroducing agency theory that explained how the modern corporation is structured to serve dispersed shareholders. They purported to describe the world as it exists but, in fact, they described a utopia, and their piece was read as a blueprint for that utopia. We take a page from the sociology of knowledge to argue that, in the modern world, economic theories function as prescriptions for behavior as much as they function as descriptions. Economists and management theorists often act as prophets rather than scientists, describing the world not as it is, …
Law And The Theory Of Fields, Frank Partnoy
Law And The Theory Of Fields, Frank Partnoy
Seattle University Law Review
The distinction between “material” and “existential” plays a prominent role in A Theory of Fields, and it played a prominent role in discussions at the Berle VII Symposium. In general, the authors advocated the importance of the ongoing use of social skills and the collaborative efforts to seek meaning, particularly in ways beyond the merely “material.” However, the extent to which rules might matter in these efforts was less clear. Overall, Fligstein and McAdam seek to use the concept of a strategic action field to develop a theory of social change and stability. Yet social change and stability are inextricably …
Notes On The Difficulty Of Studying The Corporation, Marina Welker
Notes On The Difficulty Of Studying The Corporation, Marina Welker
Seattle University Law Review
In the award-winning documentary The Corporation, public intellectuals and activists characterize corporations as “externalizing machines,” “doom machines,” “persons with no moral conscience,” and “monsters trying to devour as much profit as possible at anyone’s expense.” In other footage, people on the street personify corporations: “General Electric: a kind old man with lots of stories;” “Nike: young, energetic;” “Microsoft: aggressive;” “McDonald’s: young, outgoing, enthusiastic;” “Monsanto: immaculately dressed;” “Disney: goofy;” “The Body Shop: deceptive.” The documentary, like screenwriter and legal scholar Joel Bakan’s book The Corporation: The Pathological Pursuit of Profit and Power, imparts dissonant messages about corporations. On the one hand, …
Three Out Of Four Economists Recommend Raising The Minimum Wage! A Closer Look At The Debate Surrounding Seattle's Minimum Wage Ordinance, Erica Bergmann
Three Out Of Four Economists Recommend Raising The Minimum Wage! A Closer Look At The Debate Surrounding Seattle's Minimum Wage Ordinance, Erica Bergmann
Seattle University Law Review
This Note will discuss the implications of a high minimum wage by examining the debate around the Seattle Ordinance with a particular focus on the IFA lawsuit. To analyze the possible impacts of the Seattle Ordinance, current and historical arguments both in support of and in opposition to minimum wage laws are considered. This Note ultimately concludes that the U.S. District Court rightly denied the IFA’s motion for a preliminary injunction, which would have frustrated Seattle’s experiment before it began. Seattle’s plan to implement a $15 minimum wage, and similar experiments, should be permitted to proceed because the problem of …
Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery
Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery
Journal of Law and Policy
The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to protect the pension rights of employees nationwide. However, due to its broad preemptive powers, ERISA has since developed into a tool used by health insurers to recover millions of dollars in tort damages meant to benefit employees with ERISA health plans. This practice, known as subrogation, has been met with legislative backlash in the form of state antisubrogation statutes, which attempt to limit the enforceability of subrogation clauses found in almost all ERISA health plans. However, many courts have held that ERISA preempts these antisubrogation statutes, thereby affirming …
Accessory Disloyalty: Comparative Perspectives On Substantial Assistance To Fiduciary Breach, Deborah A. Demott
Accessory Disloyalty: Comparative Perspectives On Substantial Assistance To Fiduciary Breach, Deborah A. Demott
Faculty Scholarship
Culpable participation in a fiduciary's breach of duty is independently wrongful. Much about this contingent form of liability is open to dispute. In the United States, well-established general doctrine defines the elements requisite to establishing accessory liability, which is categorized as a tort and often referred to as "aiding-and abetting" liability. What's controversial is how the tort applies to particular categories of actors, most recently investment banks that advise boards of target companies in M&A transactions. In the United Kingdom, in contrast, accessory liability in connection with a breach of trust or fiduciary duty is controversial because the law is …
Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal
Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Agency In The Alternatives: Common-Law Perspectives On Binding The Firm, Deborah A. Demott
Agency In The Alternatives: Common-Law Perspectives On Binding The Firm, Deborah A. Demott
Faculty Scholarship
This chapter in a forthcoming book examines the external aspects of agency law in the context of unincorporated firms, that is, the capacity of actors associated a firm to bind it to the legal consequences of interactions with third parties. The chapter focuses in particular on the impact of acts done by a representative for which the representative lacked actual authority. The chapter differentiates the terminology and concepts associated with partnership law from the common law of agency, in particular, a partner's capacity to bind the firm albeit the partner lacks actual authority, which the chapter terms the partner's "positional …
Forum-Selection Bylaws Refracted Through An Agency Lens, Deborah A. Demott
Forum-Selection Bylaws Refracted Through An Agency Lens, Deborah A. Demott
Faculty Scholarship
Both praise and controversy surround director-adopted bylaws that affect shareholders' litigation rights. Recent bylaws specify an exclusive forum for litigation of corporate governance claims, limit shareholder claims to resolution through arbitration, and (most controversially) impose a one-way regime of fee shifting on shareholder litigants. To one degree or another, courts have legitimated each development, while commentators differ in their assessments. This Article brings into clear focus issues so far blurred in debates surrounding these types of bylaws. Focusing on forum-selection bylaws, and on Delaware precedents, I argue that beginning from the standpoint of common law agency reveals the attenuated and …
Reflections On Teaching Business Associations: The Case For Teaching More Agency And Unincorporated Business Entity Law, Mark J. Loewenstein
Reflections On Teaching Business Associations: The Case For Teaching More Agency And Unincorporated Business Entity Law, Mark J. Loewenstein
Publications
This paper argues for increased coverage of the law of agency and alternative entities in business associations courses.
Ironic Simplicity: Why Shaken Baby Syndrome Misdiagnoses Should Result In Automatic Reimbursement For The Wrongly Accused, Jay Simmons
Seattle University Law Review
Shaken baby syndrome (SBS)’s shortcomings include the debatable science behind SBS theory and diagnosis—the questioning of which has grown more vociferous—and the arguably biased, discriminatory treatment of the accused. Professor Deborah Tuerkheimer notes that the evolving SBS skepticism and contentious debate has resulted in "chaos" in many SBS adjudications and within the medical and biomechanical fields, with the same SBS proponents and opponents continually crusading for and clashing over their beliefs. The issues surrounding the medical and biomechanical components of SBS diagnoses have been repeatedly examined and discussed, and are not the focus of this Note. This Note recounts those …
Stuck Between A Rock And A Hard Place: Are Public Accounting Firms Subject To Diverging Standards Of Conduct Between Federal Courts And The Pcaob In Securities Fraud Claims?, Pierre Ciric
Journal of Business & Technology Law
No abstract provided.
The Department Of Justice Merger Guidelines: A Critique And A Proposed Improvement, R. Preston Mcafee, Michael A. Williams
The Department Of Justice Merger Guidelines: A Critique And A Proposed Improvement, R. Preston Mcafee, Michael A. Williams
Pepperdine Law Review
No abstract provided.
Decisional Integrity And The Business Judgment Rule: A Theory, Alfred Dennis Mathewson
Decisional Integrity And The Business Judgment Rule: A Theory, Alfred Dennis Mathewson
Pepperdine Law Review
No abstract provided.
Space Entrepreneurs: Business Strategy, Risk, Law, And Policy In The Final Frontier, 46 J. Marshall L. Rev. 1039 (2013), Michael Laisné
Space Entrepreneurs: Business Strategy, Risk, Law, And Policy In The Final Frontier, 46 J. Marshall L. Rev. 1039 (2013), Michael Laisné
UIC Law Review
Human civilization is on the brink of exploring another frontier. As usual, the super power governments of the world have played a major role in the initial stages. Now, as was the case when brave settlers came to colonize the West, and railroads and financial empires were built, society must rely on the private sector to take civilization to the final frontier. This article will give an overview of the current laws and policies relevant to space entrepreneurship (Part II). The Article explores the road to becoming a space entrepreneur including, a description of startup risks (Part III), an overview …
Corporate Opportunities And The Third Party “Refusal To Deal” Defense: Policy And Practice Lessons From Illinois, 47 J Marshall L. Rev 1 (2013), William Schaller
Corporate Opportunities And The Third Party “Refusal To Deal” Defense: Policy And Practice Lessons From Illinois, 47 J Marshall L. Rev 1 (2013), William Schaller
UIC Law Review
No abstract provided.
The Origin And Evolution Of The Third Party “Refusal To Deal” Defense In Illinois Corporate Opportunity Cases, 46 J. Marshall L. Rev. 937 (2013), William Lynch Schaller
The Origin And Evolution Of The Third Party “Refusal To Deal” Defense In Illinois Corporate Opportunity Cases, 46 J. Marshall L. Rev. 937 (2013), William Lynch Schaller
UIC Law Review
No abstract provided.
Imputation, The Adverse Interest Exception, And The Curious Case Of The Restatement (Third) Of Agency, Mark J. Loewenstein
Imputation, The Adverse Interest Exception, And The Curious Case Of The Restatement (Third) Of Agency, Mark J. Loewenstein
Publications
The imputation doctrine in the common law of agency provides that knowledge of an agent acquired in the course of the agency relationship is imputed to the principal. An important exception to the imputation doctrine, known as the adverse interest exception, provides that knowledge is not imputed if it is acquired by the agent in a course of conduct that is entirely adverse to the principal. These doctrines play an important role in sorting out liability when senior management of a corporation engages in a financial fraud that harms the company. Typically, new management is brought in and it sues …
Corporate Opportunities And Corporate Competition In Illinois: A Comparative Discussion Of Fiduciary Duties, 46 J. Marshall L. Rev. 1 (2012), William Lynch Schaller
Corporate Opportunities And Corporate Competition In Illinois: A Comparative Discussion Of Fiduciary Duties, 46 J. Marshall L. Rev. 1 (2012), William Lynch Schaller
UIC Law Review
No abstract provided.
Mind Control: Firms And The Production Of Ideas, Anthony J. Casey
Mind Control: Firms And The Production Of Ideas, Anthony J. Casey
Seattle University Law Review
The central questions for economic theories of the firm concern how the production of a good is organized (in the market or within a firm) and why that organization prevails. Derivative to these questions, legal scholars ask how the law affects and is affected by any particular organizational structure. Emerging literature looks at these questions in connection with the law of intellectual property. The prevailing theories in that literature focus primarily, though not exclusively, on patent law and generally adopt a property-rights theory of the firm. Those theories, focusing on residual control and hold-up problems, have shown that as patent …
Theories Of The Firm And Judicial Uncertainty, Andrew S. Gold
Theories Of The Firm And Judicial Uncertainty, Andrew S. Gold
Seattle University Law Review
There is no necessary connection between academics’ theories of the firm and judicial theories of the firm. Economists and legal scholars may adopt one theory of the firm, and courts may adopt another. We might even predict this result. Judges are not economists, and as increasingly sophisticated theories of the firm emerge in the academic literature, judges are not well-positioned to keep pace with the evolving accounts. Indeed, judges may reasonably choose to adopt no theory at all. Given these premises, this Essay explores the relationship between academically developed theories of the firm and corporate legal doctrine. Legal scholars who …
Coase, Knight, And The Nexus-Of-Contracts Theory Of The Firm: A Reflection On Reification, Reality, And The Corporation As Entrepreneur Surrogate, Charles R.T. O'Kelley
Coase, Knight, And The Nexus-Of-Contracts Theory Of The Firm: A Reflection On Reification, Reality, And The Corporation As Entrepreneur Surrogate, Charles R.T. O'Kelley
Seattle University Law Review
Working within the nexus-of-contracts model, scholars have struggled to develop a rhetorical paradigm that accurately predicts or describes corporation law. This difficulty flows from twin flaws in the currently dominant model—the equation of the corporation and the firm and the exclusion of the entrepreneur. Coase and his progenitor, Frank Knight, saw the firm as having an “inside” and an “outside” and a distinct central actor—the entrepreneur. Contrary to the allocation of resources by the unconscious processes of the market fundamental to the perfect competition model favored by free-market, nexus-of-contracts theorists, Knight and Coase looked inside the firm and identified the …
Salomon Redux: The Moralities Of Business, Allan C. Hutchinson, Ian Langlois
Salomon Redux: The Moralities Of Business, Allan C. Hutchinson, Ian Langlois
Seattle University Law Review
In this Essay, we revisit the Salomon case and its related litigation not only from a legal standpoint but also from a broader moral perspective. 4 In the second Part, we offer a detailed context for and account of the Salomon litigation. The third Part focuses on the historical roots of the corporation and the judicial arguments in Salomon. In the fourth Part, we explore the moral and legal consequences of the Salomon decision. Throughout the Essay, our ambition will be not only to give the Salomon case a more contextual and richer spin but also to tackle the relationship …
Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman Johnson
Law And Legal Theory In The History Of Corporate Responsibility: Corporate Personhood, Lyman Johnson
Seattle University Law Review
This Article, the first of a multipart project, addresses the nature of corporate personhood, one area where law has played a central role in the history of corporate responsibility in the United States.1 The treatment will be illustrative, not exhaustive. Consistent with the theme of the larger project, the Article serves to make the simple but important point that a full historical understanding of corporate responsibility requires an appreciation of the law’s significant, if ultimately limited, contribution to the longstanding American quest for more responsible corporate conduct. On one hand, the spheres of law and corporate responsibility, although clearly complementary, …
Nevada And The Market For Corporate Law, Bruce H. Kobayashi, Larry E. Ribstein
Nevada And The Market For Corporate Law, Bruce H. Kobayashi, Larry E. Ribstein
Seattle University Law Review
Berle and Means’s view that managers rather than shareholders control our largest corporations finds important expression in William Cary’s famous article arguing that managers have led shareholders on a “race to the bottom” whose finish line is Delaware. These views, in turn, support supplanting state corporation law with federal regulation of corporate governance. Concerns about a race to the bottom lately focus on Nevada, which seeks to be Delaware’s first real competitor for out-of-state firms in the national incorporation market. Evidence suggests that Nevada’s strategy is to raise tax revenues by offering a significantly laxer corporate law than Delaware. We …
Hired To Invent Vs. Work Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor
Hired To Invent Vs. Work Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor
Seattle University Law Review
Corporations have long held core aspects of legal personhood, such as rights to own and divest property and to sue and be sued. U.S. copyright law allows corporations to be authors while U.S. patent law does not allow them to be inventors. To be sure, both copyright law and patent law allow corporations to own copyrights and patents as assignees. But only copyright law, through its work-made-for-hire doctrine, provides for the nonnatural person of the corporation to “be” the author in an almost metaphysical sense. Under patent law, the natural-person inventors must always be listed in the patent documents, even …
A Shallow Harbor And A Cold Horizon: The Deceptive Promise Of Modern Agency Law For The Theory Of The Firm, David A. Westbrook
A Shallow Harbor And A Cold Horizon: The Deceptive Promise Of Modern Agency Law For The Theory Of The Firm, David A. Westbrook
Seattle University Law Review
Modern agency law—the consensual agreement of one person to work for and under the control of another—has been widely used to provide a general framework for understanding a great deal of business law. Agency law concepts can be used to frame pedagogical, scholarly, institutional, and even political discourses. In so doing, modern agency law addresses concerns about the institution of the corporation, generally by reference to contract: institutions are created out of essentially consensual, and hence justifiable, relationships among autonomous individuals. So modern agency law is more than a “theory” of the firm in the narrow sense of theory; modern …
The Future Of Socialism, Robert Paul Wolff
The Future Of Socialism, Robert Paul Wolff
Seattle University Law Review
An unpromising title, this, in the seventh year of the third millennium of the Common Era; rather like “Recent Developments in Ptolemaic Astronomy” or “Betamax—a Technology Whose Time Has Come.” My grandfather’s dream, the faith of my younger days, has turned to ashes. And yet, I remain persuaded that Karl Marx has something important to teach us about the world in which we live today. In what follows, I propose to take as my text a famous statement from Marx’s A Contribution to the Critique of Political Economy1—a sort of preliminary sketch of Das Kapital2—and see what it can tell …
Strengthening Investment In Public Corporations Through The Uncorporation, Kelli A. Alces
Strengthening Investment In Public Corporations Through The Uncorporation, Kelli A. Alces
Seattle University Law Review
We cannot completely overcome the difficulties caused by the separation of ownership and control. In The Modern Corporation and Private Property, Adolf A. Berle and Gardiner Means focused our attention on what was then a relatively new phenomenon: widely dispersed public shareholding.1 They marveled at how, for the first time in the history of the American economy, the owners of assets had so little to do with the management of those assets, and managers had so much power over so much health that did not belong to them.2 Berle and Means described what we now call the Berle−Means corporation, the …