Business Organizations Law Commons^™

Corporate Social Responsibility And The Multinational Enterprise, Constance Z. Wagner

All Faculty Scholarship

In this book review, the author critiques Levi’s Children: Coming to Terms with Human Rights in the Global Marketplace by Karl Schoenberger. Schoenberger depicts the struggle by Levi Strauss & Co. to abide by its principles regarding workers’ rights after its decision to relocate some manufacturing operations abroad, an effort that he concludes was ultimately unsuccessful. In exploring this topic, he discusses the human rights issues confronting Levi Strauss & Co. and other U.S. multinationals and the increasing pressure exerted by the public for such companies to operate in a socially responsible manner. Schoenberger’s primary contribution to the growing literature …

Ongoing Issues In Russian Corporate Governance, Merritt B. Fox

Faculty Scholarship

This Article concerns Russian corporate governance today. It starts by arguing that there are fundamental differences between the policy questions raised by SOEs and those raised by non-SOEs and that the analysis needs to separate out these two kinds of corporations. The Article then goes on to consider several ongoing issues relating to non-SOEs. To start, it suggests the need for a set of rules, backed by reliably applied stiff sanctions, requiring disclosure of all situations where a person, by himself or as a member of a coordinated group, is the beneficial owner of sufficient shares to be able to …

Incorporating By Reference: Knowing Law In The Electronic Age, Peter L. Strauss

Faculty Scholarship

Last October, the Office of the Federal Register published a Notice of Proposed Rulemaking (78 Fed. Reg. 60,784 (Oct. 2, 2013)) to revise its regulations governing the practice of "incorporation by Reference," which permits federal agencies to create binding regulatory obligations just by referring to standards that have been developed by private nongovernmental organizations, standards development organizations (SDOs) such as the American National Standards Institute (ANSI) or the American Society of Mechanical Engineers (ASME). This rulemaking should be of substantial interest to the occupational safety community. While its comment period has closed, comments remain open until May 12, 2014, on …

Innovation In Teaching Llcs: Introduction, Lyman P.Q. Johnson

Washington and Lee Law Review

No abstract provided.

To Be Or Not To Be A Funding Portal: Why Crowdfunding Platforms Will Become Broker-Dealers, Shekhar Darke

UC Law Business Journal

The recently enacted JOBS Act created crowdfunding exemption to securities registration, allowing entrepreneurs to raise capital for their ventures from everyday investors. The crowdfunding exemption has many stipulations such as a maximum investment and offering amounts within a given period. Also, investors can only invest in crowdfunding opportunities through intermediaries that are registered as broker-dealers or funding portals. The JOBS Act created funding portal registration as an easier alternative to the more burdensome broker-dealer registration. Thus, many people believe that crowdfunding platforms will opt to register as funding portals. However, this note argues that crowdfunding platforms would rather choose broker-dealer …

Confidential Ideas And Independent Contractors: Trade Secret Ownership In The Age Of The Hired Gun, Rob P. Saka

UC Law Business Journal

Does an independent contractor or a party hiring the contractor own the new, confidential ideas that fall outside of what the contract or is hired to provide, but that arise during the course of that work? The issue of tradesecret ownership is important due to the growing use of contractors, particularly in the tech development industry. This note explores the emerging issue of trade secret ownership in the post- Great Recession era of increased reliance on contractor-inventors. In concluding that-absenta contrary written agreement- contractor- inventors are the rightful owners of their incidentally created trade secrets while assigned to a project, …

Creating A Culture Of Compliance: Why Departmentalization May Not Be The Answer, Michele Destefano

UC Law Business Journal

Over the past few decades, as corporate criminal liability rules, sentencing guidelines, and settlement incentives have changed, there has been increased emphasis on and resources devoted to the compliance function at large publicly held companies. In this article, Professor DeStefano traces the development of the compliance function at large corporations and questions the recent mandate by certain governmental entities that malfeasant corporations designate a chief compliance officer and separate the compliance gatekeeping function from the legal department so that this chief compliance officer does not report to the general counsel. She categorizes the types of arguments made for and against …

Bolstering Competition In The International Remittance Market: A Proposal For Reforming The Current Regulatory Licensing Framework Governing Money Transmission Businesses, Leslie Gutierrez

UC Law Business Journal

State licensing requirements for money transmission businesses involved in international remittances have allowed key players Western Union and MoneyGram to benefit from the high demand for remittances and the lack of competition by enabling these entities to impose inflated prices on migrant consumers. With the growth of remittance flows and the rise of technological innovations, such as Internet and mobile payments, the current state-by-state licensing requirements for money transmission businesses prove to be overly burdensome and expensive and, ultimately, a barrier to entry for small businesses and start-ups. This note proposes to replace the current money-transmitting state licensing framework with …

One Worldwide Set Of Global Accounting Standards? - Hmm, Neal F. Newman

UC Law Business Journal

This paper examines the contemplated worldwide adoption of IFRS. This paper explores whether a one size fits all accounting regime is viable where economies around the globe, though interconnected, have different histories, different cultural norms, different economic dynamics, different investor and capital bases, and therefore, perhaps different uses for financial information. Do these different cultural norms, economic dynamics, investor and capital bases therefore necessitate different uses for financial information? And if so, how does that affect the stated goal of "[a] single set of high quality global accounting standards?" It is possible that these different cultural norms, economic dynamics, investor …

Managing Conflicts Of Interest In China's Public Sector: Fighting Corruption At The Early Stage, Hao (Victor) Wu, Xiaoqi (Claudia) Sun

Richmond Journal of Global Law & Business

No abstract provided.

The (Un)Enforcement Of Corporate Officers' Duties, Megan Wischmeier Shaner

Faculty Articles

No abstract provided.

A Canadian Model Of Corporate Governance: Where Do Shareholders Really Stand?, Carol Liao

All Faculty Publications

This feature article in the Director Journal summarizes the findings from the report, "A Canadian Model of Corporate Governance: Insights from Canada's Leading Legal Practitioners," produced for the Canadian Foundation for Governance Research and the Institute of Corporate Directors (also available on SSRN).

In the report, interviews were conducted with 32 leading senior legal practitioners across Canada to opine on the fundamental principles that are driving the development of Canadian corporate governance. The report found that Canadian common law has made the process of considering stakeholders in the "best interests of the corporation" more overt, well beyond what is assumed …

Disruptive Innovation And The Global Emergence Of Hybrid Corporate Legal Structures, Carol Liao

All Faculty Publications

There is considerable legal scholarship focused on reforming the shareholder primacy model of governance embodied within the modern day corporation. While these efforts are worthwhile and must continue, there are certain ideological and practical limitations that make true reformation of this model difficult. It is important, therefore, that in the midst of ongoing efforts, one does not lose sight of available alternatives.

This article promotes a novel perspective that does not spring from traditional-style efforts of corporate reform, but rather, on how a growing trend in corporate law may create 'disruptive innovations' in the marketplace and foster an environment where …

Fixing Multi-Forum Shareholder Litigation, Minor Myers

Faculty Scholarship

No abstract provided.

The New “Human Equity” Transactions, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In the past year, a number of new financial transactions (such as the Fantex, Upstart and Pave transactions) have emerged that allow individuals to raise funds by offering a percentage interest in their future earnings. Unlike traditional lending arrangements, these structures essentially enable the funding provider to take a percentage of the recipient’s future return on their human capital for a specified time period, effectively getting the upside if earnings are higher and the downside risk if earnings are lower than anticipated. Such transactions represent a significant departure from traditional forms of lending and pose serious questions for the legal …

Financial Conglomerates And Information Barriers, Andrew F. Tuch

Scholarship@WashULaw

The organizational structure of financial conglomerates gives rise to fundamental regulatory challenges. Legally, the structure subjects firms to multiple, incompatible client duties. Practically, the structure provides firms with a huge reservoir of non-public information that they may use to further their self-interests, potentially harming clients and third parties. The primary regulatory response to these challenges and a core feature of the financial regulatory architecture is the information barrier or Chinese wall. Rather than examine measures to strengthen information barriers, to date legal scholars have focused on the circumstances in which to deny them legal effect, while economists have focused on …

Charitable Nonprofits’ Use Of Noncompetition Agreements: Having The Best Of Both Worlds, Lindsey D. Blanchard

McGeorge School of Law Scholarly Articles

No abstract provided.

Is The Independent Director Model Broken?, Roberta Karmel

Faculty Scholarship

No abstract provided.

Concentrated Ownership And Corporate Control: Wallenberg Sphere And Samsung Group, Hwa-Jin Kim

Articles

Samsung Group’s success cannot be attributed to its corporate governance structure, at least thus far. The corporate governance of Samsung has been rather controversial. As the group faces the succession issue the corporate governance has become as crucial as their new products and services. Samsung has discovered a role model on the other side of the planet, Wallenberg Sphere in Sweden. Much effort has been made to learn about Wallenberg’s arrangements and key to its success. However, a fundamental difference between the institutions in Sweden and Korea has made the corporate structures of the two groups radically different. Wallenberg uses …

The Law And Economics Of Corporate Social Responsibility And Greenwashing, Miriam A. Cherry

Faculty Publications

In this symposium article, I explore the link between corporate social responsibility (CSR) and the threat of greenwashing. In the first part of the article, I start with first principles, examining the origins of greenwashing, structuring its definitions, and identifying the economic incentives that lead firms into the practice. The second part of this article examines the legal structure that allows greenwashing to occur, and with it, explores the pervasiveness and extent of greenwashing. The third part of this article articulates the harms of greenwashing. Intuitively, greenwashing involves deception, falsity, and hypocrisy that reflexively seem problematic. Identifying the actual harm …

Toward A Critical Corporate Law Pedagogy And Scholarship, André Ddouglas Pond Cummings, Steven A. Ramirez, Cheryl L. Wade

Faculty Publications

(Excerpt)

In recent years, the publicly held corporation has assumed a central position in both the economic and political spheres of American life. Economically, the public corporation has long acted as the key institution within American capitalism. Politically, the public corporation now can use its economic might to sway electoral outcomes as never before. Indeed, individuals who control public firms wield more economic power and political power today than ever before. These truths profoundly shape American society. The power, control, and role of the public corporation under law and regulation, therefore, hold more importance than ever before.

Even though corporate …

Quotas And The Transatlantic Divergence Of Corporate Governance, Véronique Magnier, Darren Rosenblum

Faculty Publications

The French adoption of a corporate board quota for women reflects Europe’s increasingly stakeholder-oriented approach to corporate governance, one that stands in marked contrast with that of the United States. This Article discusses how the corporate board quota will shift French and European corporate governance. The change accentuates an already established stakeholder corporate culture widespread in Europe, most notably evidenced by the presence of worker representation on boards. In contrast, the United States’ corporate governance structure increasingly places the shareholder at its center. The proliferation of quotas for women on corporate boards in the national and transnational European contexts is …

Social Entrepreneurship And Uncorporations, Jesse Finrock, Eric L. Talley

Faculty Scholarship

Larry Ribstein’s pioneering analysis of alternative business forms during the late twentieth century highlighted the contractarian freedom that these forms provided. The rise of the LLC model was of particular interest to Ribstein, who assessed how this model brought greater freedom to those who held duties and obligations within the corporate structure. This Article takes up Ribstein’s mantle by assessing the development the alternative “social enterprise” business forms manifested in benefit corporations (BC) and flexible purpose corporations (FPC). Both forms allow an incorporated entity to articulate and pursue a social benefit alongside the maximization of shareholder returns. Despite its utility, …

Branding The Post-Closing Dispute, Jennifer Sullivan

Publications

No abstract provided.

Protecting American Innovators By Combating The Decline Of Patents Granted To Small Entities, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The new patent laws and recent economic trends indicate that there is a difficult time ahead for small entities. American entrepreneurs and small businesses have created several of the major technological innovations in the past forty years. However, statistics indicate that patents granted to small entities have declined. In the wake of this trend, the U.S. Patent system has undergone significant changes. Currently, the United States Patent and Trademark Office (“USPTO”) is in the process of implementing the policies and procedures outlined in its five-year strategic plan. Further, the Leahy-Smith America Invents Act (“AIA”), the largest patent reform law since …

Trust V. Law (In A Box): Do Organizational Forms Really Make A Difference?, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

In this contribution to the University of Illinois College of Law’s 2013 Larry Ribstein Memorial Symposium, I assess Professor Ribstein’s approach to both to trust and the “uncorporation.” My thesis is that his disciplinary commitment to a transaction cost economics model resulted in an overstatement of the extent to which business association forms matter in the real world. In contrast to Professor Ribstein’s view that mandatory law (which includes corporate law) “crowds out” trust (implicitly making uncorporations more amenable to trust), I see the orderliness of modern and abstract business structures (of any kind) as distinct from, yet operating at …

Reforming Consumer-Insurer Dispute Resolution In The Auto Insurance Industry, Cassandra Roeder

Student Award Winning Papers

No abstract provided.

Toward Greater Guidance: Reforming The Definitions Of The Foreign Corrupt Practices Act, Matthew W. Muma

Michigan Law Review

The Foreign Corrupt Practices Act of 1977 is the cornerstone of the United States’ efforts to combat the involvement of U.S. companies and individuals in corruption abroad. Enforced by both the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”), the Act targets companies and individuals that pay bribes to “foreign officials,” a nebulous category of persons that includes everyone from foreign cabinet members to janitors at companies only partially owned by a foreign state. After only sporadic enforcement in the early years of the Act’s existence, the SEC and DOJ now bring many cases annually. This increased …

Corporate Voluntarism And Liability For Human Rights In A Post-Kiobel World, Robert C. Bird, Daniel R. Cahoy, Lucien J. Dhooge

Kentucky Law Journal

No abstract provided.

Valuation In Light Of Uncertainty: How Stock Option Pricing Models Can Inform More Accurate Valuation Discounts For Built-In Gains, Rebecca N. Morrow

Kentucky Law Journal

No abstract provided.