Business Organizations Law Commons^™

The Dystopian Potential Of Corporate Law, D. Gordon Smith

Faculty Scholarship

The community of corporate law scholars in the United States is fragmented. One group, heavily influenced by economic analysis of corporations, is exploring the merits of increasing shareholder power vis-a-vis directors. Another group, animated by concern for social justice, is challenging the traditional, shareholder-centric view of corporate law, arguing instead for a model of stakeholder governance. The current disagreement within corporate law is as fundamental as in any area of law, and the debate is more heated than at any time since the New Deal. This paper is part of a debate on the audacious question, Can Corporate Law Save …

The Undercivilization Of Corporate Law, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Allocating Business Profits For Tax Purposes: A Proposal To Adopt A Formulary Profit Split, Reuven S. Avi-Yonah, Kimberly A. Clausing, Michael C. Durst

Law & Economics Working Papers Archive: 2003-2009

The current system of taxing the income of multinational firms in the United States is flawed across multiple dimensions. The system provides an artificial tax incentive to earn income in low-tax countries, rewards aggressive tax planning, and is not compatible with any common metrics of efficiency. The U.S. system is also notoriously complex; observers are nearly unanimous in lamenting the heavy compliance burdens and the impracticality of coherent enforcement. Further, despite a corporate tax rate one standard deviation above that of other OECD countries, the U.S. corporate tax system raises relatively little revenue, due in part to the shifting of …

Business Associations, Paul A. Quirós, Lynn S. Scott, William B. Shearer Iii, William S. Smoak Jr.

Mercer Law Review

This Article surveys noteworthy cases in the areas of corporate, limited liability company, partnership, agency, and joint venture law decided between June 1, 2007 and May 31, 2008 by the Georgia Supreme Court, the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia. In addition, this Article provides an overview of enactments at the 2008 Session of the Georgia General Assembly to the Official Code of Georgia Annotated (O.C.G.A.) with respect to banking, finance, commerce, corporation, partnership, and business associations statutes.

Troubled Projects, Workouts And Debt Restructurings, Richard Blumenreich

William & Mary Annual Tax Conference

No abstract provided.

Partnership Allocations: What You Don't Know Can Hurt You, Steven M. Friedman

William & Mary Annual Tax Conference

No abstract provided.

Piercing The Corporate Veil In Regulated Industries, Douglas G. Smith

BYU Law Review

No abstract provided.

Electronic Tax Fraud - Are There "Sales Zappers" In Japan?, Richard Thompson Ainsworth

Faculty Scholarship

Although there is no public acknowledgement - in the press, in a court case, though any announcement by the Japanese National Tax Administration, or in any academic studies or papers - that Zappers and Phantom-ware are a fraud problem in Japan, a number of factors suggest that Japan may be very fertile ground for technology-assisted cash skimming fraud. Those factors include: (1) a high concentration of small to medium sized businesses; (2) the fact that the retail economy is highly cash-based; and (3) the high level of technology acceptance in the Japanese retail sector - electronic cash registers (ECRs) and …

Dysfunctional Deference And Board Composition: Lessons From Enron, Bernard S. Sharfman, Steven J. Toll

NULR Online

No abstract provided.

Obedience As The Foundation Of Fiduciary Duty, Rob Atkinson

Scholarly Publications

No abstract provided.

Linkage And The Deterrence Of Corporate Fraud, Miriam Baer

Faculty Scholarship

No abstract provided.

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

The (Not So) Puzzling Behavior Of Angel Investors, Darian M. Ibrahim

Vanderbilt Law Review

Where do entrepreneurs turn for funding once their credit cards are maxed out, friends and family are no longer taking their calls, but it is still too early for venture capitalists to invest? They turn to "angel" investors. Angel investors are wealthy individuals who personally finance the same high-risk, high-growth start-ups as venture capitalists but at an earlier stage. Well-known angels include Microsoft co-founder Paul Allen, EDS founder H. Ross Perot, and Dallas Mavericks' owner Mark Cuban. But the prototypical angel may still be rich old Uncle Joe, the wealthy, distant relative or family acquaintance. Angels come in many forms, …

The (Not So) Puzzling Behavior Of Angel Investors, Darian M. Ibrahim

Faculty Publications

No abstract provided.

Parity Lost: The Price Of A Corporate Tax In A Progressive Tax World, Richard Winchester

Nevada Law Journal

The United States has always taxed income at progressive rates, so that an individual’s tax burden would increase with his ability to pay. Whenever the United States has had an income tax, it has also imposed an entity level tax on the profits of certain businesses, but not others. Both the structure of the progressive tax rates and the design of the entity level tax on business profits have evolved over time, resulting in a wide range of incentives and outcomes. This Article recounts the early history of the income tax in the United States, focusing on how an entity …

Getting The Roberts Court Right: A Response To Chemerinsky, Jonathan H. Adler

Faculty Publications

Dean Erwin Chemerinsky makes a substantial contribution to the narrative of conservative ascendance [within the Roberts Court] in The Roberts Court at Age Three. Chief Justice Roberts and Justice Alito “have been everything that conservatives could have dreamed of and liberals could have feared,” he writes. The two newest justices are forging “a solid conservative voting majority" on the Court. The result is a Court that is “notably more conservative” than its predecessors on most contentious questions. It is, Dean Chemerinsky claims, “the most conservative Court since the mid-1930s.”

To say Dean Chemerinsky overstates his case is an understatement. …

Securities Class Actions As Pragmatic Ex Post Regulation, Elizabeth Chamblee Burch

Scholarly Works

Securities class actions are on the chopping block-again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions' negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle.

Thus, understanding the full picture and texture of securities class actions necessitates …

Changing The Paradigm Of Stock Ownership From Concentrated Towards Dispersed Ownership? Evidence From Brazil And Consequences For Emerging Countries, Erica Gorga

Cornell Law Faculty Working Papers

This paper analyzes micro-level dynamics of changes in ownership structures. It investigates a unique event: changes in ownership patterns currently taking place in Brazil. It builds upon empirical evidence to advance theoretical understanding of how and why concentrated ownership structures can change towards dispersed ownership.

Commentators argue that the Brazilian capital markets are finally taking off. The number of listed companies and IPOs in the Sao Paulo Stock Exchange (Bovespa) has greatly increased. Firms are migrating to Bovespa’s special listing segments, which require higher standards of corporate governance. Companies have sold control in the market, and the stock market has …

Tales Of Two Regimes For Regulating Limited Liability Law Firms In The Us And Australia: Client Protection And Risk Management Lessons, Susan Saab Fortney

Faculty Scholarship

This essay contrasts the regimes that allow limited liability partnerships in the US and fully incorporated legal practices in Australia. The essay argues that Australia has taken advantage of an opportunity to develop innovative and necessary regulation of law firm ethical infrastructure with the introduction of incorporated legal practices, but the United States has not yet adequately addressed the consumer and ethical risks of limited liability partnerships. This essay raises the issue of whether Australia’s requirement that incorporated law firms should implement “appropriate management systems” to ensure ethical conduct is a model that could fruitfully be applied to all law …

Zappers And Phantomware: Are State Tax Administrators Listening Now?, Richard Thompson Ainsworth

Faculty Scholarship

When the Federation of Tax Administrators (FTA) held a national Compliance and Education Workshop in Louisville, Kentucky (February 25-27, 2001) one of the invited speakers was Kevin Pratt, Manager, Underground Economy, Canadian Customs and Revenue Authority (CCRA). He spoke on Zappers.

To the best of anyone's present recollection, this was the first time zappers had been discussed with a large group of state-level US tax compliance professionals. However, most of the information that the CCRA presented to the FTA in 2001 was not its own - it was derivative. Zapper investigations were not an in-house specialty of the CCRA (although …

An Overview Of Brazilian Corporate Governance, Bernard S. Black, Antonio Gledson De Carvalho, Érica Gorga

Cornell Law Faculty Publications

We provide the first detailed picture of firm-level corporate governance practices in an emerging market. We report on the corporate governance practices of Brazilian public companies, based primarily on an extensive 2005 survey of 116 companies. Most firms have a controlling shareholder or group. Board independence is an area of weakness. The boards of most Brazilian private firms are comprised entirely or almost entirely of insiders or representatives of the controlling family or group. Many firms have no independent directors. Financial disclosure is a second area of weakness. Only a minority of firms provide a statement of cash flows or …

Insuring Corporate Crime, Miriam Baer

Faculty Scholarship

No abstract provided.

Jiminy Cricket For The Corporation: Understanding The Corporate Conscience, Colin P. Marks

Faculty Works

Historically, the corporation has evolved since the late eighteenth century from a relative few, specially chartered associations, generally organized to complete projects for the public good to the modern profit-making behemoths of modern America. Along the way, corporations have been subjected to regulation, often in response to public outcry against perceived abuses of power. This corporate evolution has also resulted in a general separation of ownership and control, though that is not to say that corporate mangers act completely free from external pressures such as to make a profit. With regard to the corporate "conscience," though corporations do not have …

Mergers, Taxes, And Historical Materialism, Ajay K. Mehrotra

Indiana Law Journal

In the last few years, corporate mergers and acquisitions witnessed explosive growth. Although more recent market conditions have halted the latest merger movement, scholars and commentators have used the earlier rise in merger activity to reevaluate the preferential tax treatment granted to those mergers and acquisitions that fall under the U.S. tax law's definition of a corporate "reorganization. " Under the current Internal Revenue Code, neither shareholders nor corporations recognize gain or loss on the exchange of stock or securities in transactions that qualify as a "corporate reorganization." The significance of this tax rule raises a central question: why does …

Insuring Corporate Crime, Miriam Hechler Baer

Indiana Law Journal

Corporate criminal liability has become an important and much-talked about topic. This Article argues that entity-based liability-particularly the manner in which it is currently applied by the federal government---creates social costs in excess of its benefits. To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation's employees would commit crimes, and then charge companies for insuring those risks. The insurance would cover civil penalties associated with the entity's employee-related criminal conduct. …

Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara L. Seck

Osgoode Hall Law Journal

Home state reluctance to regulate international corporate activities in the human rights context is sometimes characterized as an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a regulatory role for home states in preventing and remedying human rights harms is increasingly being suggested. This paper seeks to explore theoretical perspectives that support unilateral home state regulation. Having established that unilateral home state regulation could serve …

Zappers And Phantomware: The Need For Fraud Prevention Technology, Richard Thompson Ainsworth

Faculty Scholarship

There is a demand-market for technology that facilitates tax fraud. By all accounts the providers in this market are working in a growth industry.

In the short term this is bad news for those concerned with tax policy and information privacy. In the long term however, the fight against technology-assisted fraud is stimulating the development of a more robust technology base within tax administrations, and this is good news for those who believe that a sophisticated technological infrastructure is needed to resolve difficult questions of tax design.

This paper focuses on two technology-accelerants of SME tax fraud - zappers and …

Corporations As Victims Of Mismanagement: Beyond The Shareholders Vs. Managers Debate, Carlos Gomez-Jara Diez

Pace Law Review

No abstract provided.

The Failing Company Defense After The Commentary: Let It Go, Oliver Zhong

University of Michigan Journal of Law Reform

This Note proposes the abolishment of the failing company defense in merger control law. This call for reform is based on a comprehensive critique, which consists of a revisit of the doctrinal history, a survey of problems in current practice, and an inquiry into the normative merits of both the status quo and alternative plans. The reform advocated will purify the doctrine and improve the practice with minimum adjustments, in line with the ongoing movement to modernize merger review with the publication of the Commentary to the Merger Guidelines.

Branding The Small Wonder: Delaware's Dominance And The Market For Corporate Law, Omari Scott Simmons

University of Richmond Law Review

No abstract provided.