Business Organizations Law Commons^™

Federalism And Company Law, Richard M. Buxbaum

Michigan Law Review

It would be a simplifying and historically dubious reduction to equate state interest in corporation law with interventionist or regulatory policies and federal interest with liberal or facilitative ones. So long as a federal legal system presupposes the continuing involvement of two governments with the same subject, however, it is only the subordinate polity's interest in intervention or regulation that makes for interesting reading. State facilitative policies in an era of national facilitative policies raise no questions, and a state's continuing adherence to laissez faire policies when the national government turns interventionist typically creates no conflict. It is only the …

The Supervision Of Corporate Management: A Comparison Of Developments In European Community And United States Law, Alfred F. Conard

Michigan Law Review

In 1971, Eric Stein published an account of the remarkable progress of the European Economic Community (EEC) toward a harmonized law of business corporations. The progress was particularly striking from an American viewpoint, because the harmonization was achieved by moving toward the more rigorous of the various national standards, in contrast to the "race of laxity" or "race for the bottom" that has characterized the movement toward uniformity in the corporation laws of U.S. states.

The Large Civil Aircraft Industry: Applying Legal Policy-Making Tools To Accommodate A Changing Industry, Dennis G. Terez

Michigan Journal of International Law

This note first examines the emergence of Airbus Industrie (Al or Airbus) and identifies some of the legal and policy instruments which the European governments have employed to make Al a successful competitor. After a brief discussion of the growing difficulties with subsidy policies, the note considers European Community legislation for a common European industrial policy and the creation of a European Export Bank as possible alternative solutions for maintaining Al's competitiveness. The note finally argues that international industrial agreements are necessary legal tools for effective regulation of the manufacture and sale of large civil aircraft. International agreements currently in …

Technology Diffusion And The Performance Of American Manufacturing: A Propsal For An Industrial Extension Service, Frank Ostroff

Michigan Journal of International Law

The purpose of this article is to propose an Industrial Extension Service modeled upon the Agricultural Extension Service, and suggest how it might effectively address certain fundamental problems hindering the performance of the American manufacturing sector. Part I highlights some probable causes of American manufacturing's declining relative performance. Part II discusses why firms may adopt new technology more slowly than would be optimal. Part III considers the model of the Agricultural Extension Service, pointing out those features that make it attractive and those features that would have to be changed in applying it to the industrial sector. Part III also …

The United States Specialty Steel Industry, Michael H. Leb

Michigan Journal of International Law

Part I of this note briefly describes the problems of the specialty steel industry and traces the attempts to deal with those problems from 1968 through the imposition of the relief measures which spawned the current negotiations. After discussing the trade history of the specialty steel industry, the note examines the effectiveness of two domestic import relief statutes through which the government has attempted to assist the industry. The note then analyzes U.S. attempts to aid the specialty steel industry through measures which violate the fundamental principles of the GATT system. The note concludes that since the GATT system cannot …

Foreign Investment Laws In Developing Countries, Jane E. Cross

Michigan Journal of International Law

Rather than extensively analyzing the various laws of Argentina, Mexico, and Nigeria that are specifically designed to encourage foreign investment, this note endeavors to explain how the laws of these countries that have as the primary function the monitoring and restricting of foreign investment activity are able to refrain from severely discouraging the foreign investment needed to promote industrialization. The tendency of LDCs to liberalize their restrictive foreign investment laws over the last few years demonstrates the growing importance of minimizing the adverse impact of legal constraints on foreign capital investment.

The Joint Enterprise: Collaboration Between The Public And Private Sectors, Howard Anawalt, Karen Robbins

Michigan Journal of International Law

This article first outlines the structures of the joint and tripartite enterprises. It then addresses two legal concerns facing an operational enterprise, the potential tort liability of enterprise participants and antitrust restrictions. Tort liability is a threshold concern of any joint venture or partnership, and antitrust law is a basic constraint on the operations of any business. The article proceeds to show that the problems they pose for a joint enterprise can be minimized or avoided. In the third part of the article the authors demonstrate the special utility of the joint enterprise.

Comments On 'Tax Neutrality Between Equity Capital And Debt', Douglas A. Kahn

Articles

Professor Andrews' proposals are aimed at eliminating a tax bias that affects a corporation's choice of a method of raising additional capital. Professor Andrews believes that the current tax system favors a corporation which raises capital internally by accumulating its income (or by borrowing) rather than by issuing stock. Professor Andrews seeks a neutral system that permits the choice of the manner in which capital is raised to be made on economic grounds without influence of the tax laws.

The Role Of Planning Contracts In The Conduct Of French Industrial Policy, Saul Estrin, Peter M. Holmes

Michigan Journal of International Law

The French have a long history of state economic planning, of comprehensive industrial policy, and of contractualised relations between the state and firms, though the links between them have not always been close. In the following section we review the relevant history of French planning and industrial policy. We focus in the second section on the development of contractual relations between corporations and the state in postwar France until the Socialists took office in 1981. In the third section we discuss recent developments, and we conclude with a theoretical appraisal of the experience.

Whither The Future Of Japanese Industrial Development Policies?, Merit E. Janow

Michigan Journal of International Law

This article describes past and present Japanese industrial policies. After discussing the evolution of Japanese industrial policies generally, it addresses the specific instruments of those policies including those intended to assist declining industries as well as those intended to promote the development of new industries. Finally, this article suggests that government guidance of Japan's industrial sector has decreased and is likely to decrease further still in the future.

Canada's Foreign Investment Review Act And The Problem Of Industrial Policy, James M. Spence Q.C.

Michigan Journal of International Law

The purpose of this article is to consider the Foreign Investment Review Act (FIRA or the Act) of Canada in the context of the continuing discussion in North America of the concept of "industrial policy." The particular version of industrial policy of interest for this purpose is the concept which involves interventionist activity by the government designed to affect directly the economic activity of an industry, company, or plant. The first part of the article briefly describes the background and operation of FIRA. The second part comments on the concept of interventionist industrial policy as it has developed in Canada. …

Investment Incentives And Guarantees In The Republic Of China, The Republic Of Korea, Thailand, And The People's Republic Of China, Barbara J. Martin

Michigan Journal of International Law

This note will focus on direct investment in four countries in Southeast Asia: the Republic of China (ROC), the Republic of Korea (ROK or South Korea), Thailand, and the People's Republic of China (PRC). Despite similar goals, these four countries differ significantly in their treatment of foreign investors.

Industrial Policy In The Field Of Informatics In Brazil, Walter Douglas Stuber

Michigan Journal of International Law

This article first presents a brief overview of Brazilian industrial development. This overview provides a basis for understanding how the Brazilian Government's informatics policy differs from past Brazilian industrial models. The article then describes the Brazilian Government's policy in the field of informatics. It concludes that a policy which is less protectionist than the government's current program would, through allowing greater foreign participation in the market, better encourage the development of Brazilian informatic companies.

The Impact Of Industrial Legislation On The Behavior Of Multinational Enterprises And Labor In The Industrializing Countries Of East And Southeast Asia, Kojo Yelpaala

Michigan Journal of International Law

The phenomenon of industrial legislation is not new in the world. Several industrialized, non-industrialized, capitalist, and socialist countries all have at different stages in their development used industrial legislation for the achievement of industrial goals, development targets and national welfare objectives. This legislation has generally addressed labor relations, taxes, plant location, exchange controls, and capital controls. What is perhaps new is its focus on the behavior of Multinational Enterprises (MNE). The emergence of the MNE on the world economic scene has introduced an elusive but important element in the industrial policy calculus of nations.

Employee Involvement In Decision-Making: European Attempts At Harmonization, Ruth A. Harvey

Michigan Journal of International Law

Part I of this note examines the sources of Community power over employment policy. Part II analyzes two Community directives approximating laws regarding employee involvement in dismissal procedures. It also examines the impact of these Community directives on two Member States, the Federal Republic of Germany (FRG or West Germany) and the United Kingdom. The note focuses on the FRG because its statutes have served as the model for Community directives, and because the harmonization of laws throughout the Community will provide unique benefits to the FRG. The note examines the United Kingdom because its government has historically had a …

An Alternative To High Tech, Donald E. Dekieffer

Michigan Journal of International Law

In recent years American industry's ability to compete in the international marketplace has appeared to decline. With a decreased world market share and a balance of payments deficit many policymakers have concluded that traditional industry is dying and that it is time to reassess American economic strength in new and more advanced industries, that is, "high-tech" industries. The "failure" of domestic "smokestack" industries producing automobiles, steel, and textiles allegedly supports this view. However, the problems of these industries are attributable to the current structure and climate of international and domestic trade. To offer any realistic solutions, the following issues must …

Limiting The Use Of The Rico Act As A Defense To Hostile Corporate Takeovers, Mary Ann Lesniak

University of Michigan Journal of Law Reform

This Note argues that RICO could be a legitimate defense to a hostile corporate takeover pursuant to a cash tender off er if shareholders who retain stock will be harmed by the takeover. Part I of this Note examines the general background of the RICO Act. Part II applies the Act to a hostile cash tender offer and examines each element of a civil RICO action. Part III advocates the use of RICO's injury requirement to limit this application of the Act and analyzes the potential injuries to shareholders and management during a hostile cash tender offer. This limitation upon …

European Merger Control: Legal And Economic Analyses On Multinational Enterprises, Volume 1, Michigan Law Review

Michigan Law Review

A Review of European Merger Control: Legal and Economic Analyses on Multinational Enterprises, Volume 1 edited by Klaus Hopt

The Attorney-Client Privilege And The Corporate Client: Where Do We Go After Upjohn?, Michigan Law Review

Michigan Law Review

Part I of this Note examines two of the more popular standards, the Seventh Circuit's "subject matter test" and the Eighth Circuit's "modified subject matter test" and concludes that neither approach is entirely consistent with the purposes of the privilege. Part II argues that the courts should adopt the Eighth Circuit's test with two further modifications. One revision is but a demand for clarification and consistency: the courts should explicitly adopt Dean Wigmore's legal advice requirement for corporate clients. The other modification is more radical: the command requirement should be eliminated. Under this approach, every employee may stand in the …

Toward Understanding Unlawful Organizational Behavior, Diane Vaughan

Michigan Law Review

The emergence and growth of regulatory agencies charged with controlling organizational misconduct has been so widespread that the monitoring and regulation of corporate interactions has itself become "big business," with the complexity of the regulatory agencies at times matching or even exceeding that of the organizations they regulate. The effectiveness of these efforts to control unlawful organizational behavior has been assessed in many different ways. The records of agency investigations, administrative hearings, and judicial proceedings provide data on enforcement actions, court decrees, trials, convictions, penalties, and other indicators that allow empirical estimates to be made. A realistic assessment of agency …

Enforced Self-Regulation: A New Strategy For Corporate Crime Control, John Braithwaite

Michigan Law Review

Part I outlines the concept of enforced self-regulation, sketches its theoretical underpinnings, and illustrates its application in the context of corporate accounting standards. Part II argues the merits of enforced self-regulation. Part III dispels notions that the proposal is a radical departure from existing regulatory practice and points to areas in which necessary empirical research could be conducted by discussing incipient manifestations of partial enforced self-regulation models in the aviation, mining, and pharmaceutical industries. Part IV considers in some detail the weaknesses of the proposed model. The final Part considers the importance of determining an optimal mix of regulatory strategies; …

The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan

Michigan Law Review

This Article addresses that question by examining judicial sentencing philosophy as applied to white-collar criminality and reporting data that illuminate the operation of that philosophy. Part I of the Article argues that the traditional purposes and limits of criminal sentencing may plausibly justify either disparate or comparable sentences in cases of white-collar and common criminality. Part II describes the obstacles to an accurate empirical inquiry into how judges resolve these uncertainties in the theory of punishment. Part III presents a study designed to overcome as many of these obstacles as possible. What is most dramatic is that the resulting data …

The Criminal Liability Of Corporations And Other Groups: A Comparative View, L. H. Leigh

Michigan Law Review

Briefly, three positions concerning corporate liability may be identified. First, there are systems of full corporate criminal liability, such as those in England and the United States. Second, there are systems that recognize only partial corporate criminal liability, for example Denmark, Belgium, and France. Finally, some systems do not permit such liability at all, or permit it only under the guise of administrative offenses. Italy and West Germany afford examples of this restrictive view of corporate liability.

This Article will sketch each of these positions in some detail, beginning, in Part I, with those systems that authorize full liability. Part …

The Organization As Weapon In White-Collar Crime, Stanton Wheeler, Mitchell Lewis Rothman

Michigan Law Review

This Article explores the advantages of using organization or occupation in the more typical case. Our inquiry takes this as its central question: What difference does it make when a white-collar crime is committed in the course of one's occupation or when acting on behalf, or with the assistance, of an organization? If we are becoming, as some have argued, an organizational society, then we should see the results of this change reflected in illicit as well as licit behavior. The organizational form may be used for either social or antisocial ends. Our principal hypothesis, as the title suggests, is …

Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

Michigan Law Review

We explore in this Article the basis and consequences of the target's suit under the antitrust laws. We approach the question from the perspective of federal antitrust law and state corporation law.

We argue in Part I that the target is a singularly poor "private attorney general" because it is a beneficiary, not a victim, of any violation. An antitrust suit thus must be understood as an attempt by managers to defend their own positions, not as an attempt to vindicate the public interest. In the jargon of antitrust, the target is not a victim of "antitrust injury" and therefore …

The Effect Of Insider Trading Rules On The Internal Efficiency Of The Large Corporation, Robert J. Haft

Michigan Law Review

Academics have hotly debated these justifications for years, and none of the three has achieved universal acclaim. This Article suggests another perspective: Prohibiting insider trading may enhance business decision-making in large corporations. With the exception of proponents of the Business Property view, analysts have focused on how an insider trading rule affects the national securities markets and traders in those markets. The internal governance of the large corporation is a different matter, one deserving separate consideration.

Corporations And Information: Secrecy, Access, And Disclosure, Michigan Law Review

Michigan Law Review

A Review of Corporations and Information: Secrecy, Access, and Disclosure by Russell B. Stevenson, Jr.

The Continuing Debate On Corporate Governance, J. Kirkland Grant

Michigan Law Review

A Review of The Modern Corporate Manager: Responsibility and Regulation by William A. Groening and The Limits of Corporate Power: Existing Constraints on the Exercise of Corporate Discretion by Ira M. Millstein and Salem M. Katsh

Corporate Crime, Michigan Law Review

Michigan Law Review

A Review of Corporate Crime by Marshall B. Clinard and Peter C. Yeager

Union Representatives As Corporate Directors: The Challenge To The Adversarial Model Of Labor Relations, Robert A. Mccormick

University of Michigan Journal of Law Reform

This Article addresses these questions first by discussing the predominant philosophical approach adopted by unions in their dealings with management, and then describing several ways in which the labor laws reflect this traditional model of employment relations by showing, first, that the influence of unions has been limited to circumscribed categories of business decisions. The Article next examines decisions made by the National Labor Relations Board ("NLRB") and the courts that have carefully sought to separate employer from employee, assuming their interests to be inherently antagonistic. Then follows an evaluation of the NLRB's treatment of deviations from the traditional model …