Business Organizations Law Commons^™

Masthead

UC Law Business Journal

No abstract provided.

Section 10(B) And The Fiduciary Conundrum, Thomas M. Madden

UC Law Business Journal

No abstract provided.

The Hiring Entity’S Usual Course Of Business, Syed M. Q. Ali Khan

UC Law Business Journal

The ABC test has increasingly become a tool to differentiate employees from independent contractors. Companies and counsel throughout the nation have grappled with Part B of this test, which requires a determination of the hiring entity’s “usual course of business.” Adjudicators have provided little guidance on how to conduct this analysis and are admittedly frustrated with this “elusive concept.” Yet a thorough treatment of the analytical framework and guiding principles of Part B of the ABC Test has not been put forth.

This article fills this void in scholarship. By tracing the relevant concepts to the common law control test, …

Religious Roots Of Corporate Organization, Amanda Porterfield

Seattle University Law Review

Religion and corporate organization have developed side-by-side in Western culture, from antiquity to the present day. This Essay begins with the realignment of religion and secularity in seventeenth-century America, then looks to the religious antecedents of corporate organization in ancient Rome and medieval Europe, and then looks forward to the modern history of corporate organization. This Essay describes the long history behind the entanglement of business and religion in the United States today. It also shows how an understanding of both religion and business can be expanded by looking at the economic aspects of religion and the religious aspects of …

Investors As International Law Intermediaries: Using Shareholder Proposals To Enforce Human Rights, Kishanthi Parella

Seattle University Law Review

One of the biggest challenges with international law remains its enforcement. This challenge grows when it comes to enforcing international law norms against corporations and other business organizations. The United Nations Guiding Principles recognizes the “corporate responsibility to respect human rights,” which includes human rights due diligence practices that are adequate for “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.” Unfortunately, many corporations around the world are failing to implement adequate human rights due diligence practices in their supply chains. This inattention leads to significant harms for …

The Rise Of Decentralized Autonomous Organizations: Opportunities And Challenges, Aaron J. Wright

Articles

The article explores the rise of Decentralized Autonomous Organizations (DAOs), highlighting their potential to transform traditional organizational structures through blockchain technology and smart contracts. DAOs offer operational efficiencies, such as decentralized governance and transparent decision-making, but face significant legal challenges, including lack of recognition, liability concerns, and regulatory uncertainties. The article argues that U.S. business law, with its emphasis on private ordering, could accommodate DAOs, but legal adaptations are necessary to address their unique characteristics and ensure widespread adoption.

From Property Rights To Liberty Rights: We The Corporations, A Review Essay, Laura Phillips-Sawyer

Scholarly Works

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live …

Fiduciary Judgment Rules, Julian Velasco

Journal Articles

Because of the strong moral rhetoric and robust equitable remedies available in fiduciary law, it is not surprising to find lawyers and legal scholars seeking to expand the reach of fiduciary law principles into new relationships and new areas of law. However, expansion often does not work very well because of the demanding and pervasive nature of fiduciary duties. Thus, jurists often turn to the business judgment rule and its policy of underenforcement of fiduciary duties as a way to fit fiduciary law principles into other areas of law. The problem with this approach is that it is based on …

Leveraging Corporate Law: A Broader Account Of Delaware’S Competition, Christopher M. Bruner

Maryland Law Review

No abstract provided.

Times They Are A-Changin': When Tech Employees Revolt!, Anat Alon-Beck

Maryland Law Review

No abstract provided.

Not Without Consent: Protecting Consent Rights Against Deliberate Breach, Karen A. Chesley

Maryland Law Review

No abstract provided.

Why We Need Better Corporate Governance Data, Jens Frankenreiter, Cathy Hwang, Yaron Nili, Eric L. Talley

Scholarship@WashULaw

Three decades of finance, economics, and legal studies in corporate governance have been built substantially on data sets with nearly unknown provenance. A new paper sets to correct this fatal flaw of contemporary corporate governance research by debuting a brand new resource—the Cleaning Corporate Governance database.

The Future Or Fancy? An Empirical Study Of Public Benefit Corporations, James Hicks, Michael B. Dorff, Steven Davidoff Solomon

Scholarship@WashULaw

The public benefit corporation (“PBC”) is one of the most hyped developments in corporate law, due to the PBC’s unique social purpose. Unlike the traditional corporation, directors of PBCs are required under their fiduciary duties to consider the impact of their decisions on a range of stakeholders and communities. This new form is hailed by many as a framework for a reformed capitalism. Critics, on the other hand, have assailed PBCs as unworkable—at best allowing corporations to “greenwash,” providing a thin disguise for ordinary corporate profit-seeking behavior.

What has been lacking in this debate is evidence about whether and how …

The Yin And Yang Of Corporations And Democracy, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

These are perilous times for American democracy. Among the threats, many point to the power of corporations. This article examines that threat by considering a series of dualisms characterizing the relationship between corporations and democracy.

This begins with a look at the anti- as well as the pro-democratic impacts of the earliest corporations and the paradoxes with respect to democracy created during the evolution of corporate law. The article then looks at internal corporate governance (so-called “corporate” or “shareholder democracy”) to show how, on the one hand, it contains features addressing some of the greatest current threats to American democracy, …

The Coming Shift In Shareholder Activism: From "Firm-Specific" To "Systematic Risk" Proxy Campaigns (And How To Enable Them), John C. Coffee Jr.

Faculty Scholarship

This article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may …

The Future Of Disclosure: Esg, Common Ownership, And Systematic Risk, John C. Coffee Jr.

Faculty Scholarship

The U.S. securities markets have recently undergone (or are undergoing) three fundamental transitions: (1) institutionalization (with the result that institutional investors now dominate both trading and stock ownership); (2) extraordinary ownership concentration (with the consequence that the three largest U.S. institutional investors now hold 20% and vote 25% of the shares in S&P 500 companies); and (3) the introduction of ESG disclosures (which process has been driven in the U.S. by pressure from large institutional investors). In light of these transitions, how should disclosure policy change? Do institutions and retail investors have the same or different disclosure needs? Why are …

Autonomous Business Reality, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Society tends to expect technology to do more than it can actually achieve, at a faster pace than it can actually move. The resulting hype cycle infects all forms of discourse around technology. Unfortunately, the discourse on law and technology is no exception to this rule. The resulting discussion is often characterized by two or more positions at opposite ends of the spectrum, such that participants in the discussion speak past each other, rather than to each other. The rich context that sits in the middle ground goes disregarded altogether. This dynamic most recently surfaced in the legal literature regarding …

Stock Buyback Ability To Enhance Ceo Compensation: Theory, Evidence, And Policy Implications, Nitzan Shilon

Lewis & Clark Law Review

I report that stock buyback ability to enhance CEO compensation has reached a record high amount corresponding to one-third of total pay. Also, I refute the common wisdom that this ability is attributed mainly to buyback impact on per share criteria that determine annual bonuses. Instead, I show that because of recent reforms in executive compensation design, the ability of buybacks to boost the amount of CEO stock-based compensation has become ten times higher than their potential to increase annual bonuses. I argue, first, that the potential of stock buybacks to enhance their compensation provides CEOs with incentives to conduct …

The Rule Of Technology: How Technology Is Used To Disturb Basic Labor Law Protections, Tammy Katsabian

Lewis & Clark Law Review

Much has been written on technology and the law. Leading scholars are occupied with the power dynamics between capital, technology, and the law, along with their implications for society and human rights. Alongside that, various labor law scholars focus on the implications of smart technology on employees’ rights throughout the recruitment and employment periods and on workers’ status and rights in the growing phenomenon of platform-based work. This Article aims to contribute to the current scholarship by zooming out and observing from a bird’s-eye view how certain actors use technology to manipulate and challenge basic legal categories in labor today. …

Executive Pay Clawbacks And Their Taxation, David I. Walker

Faculty Scholarship

Executive pay clawback provisions require executives to repay previously received compensation under certain circumstances, such as a downward adjustment to the financial results upon which their incentive pay was predicated. The use of these provisions is on the rise, and the SEC is expected to soon finalize rules implementing a mandatory, no-fault clawback requirement enacted as part of the Dodd-Frank legislation. The tax issue raised by clawbacks is this: should executives be allowed to recover taxes previously paid on compensation that is returned to the company as a result of a clawback provision? This Article argues that a full tax …

Second Panel Discussion - Symposium: Who Makes Esg? Understanding Stakeholders In The Esg Debate, Lisa M. Fairfox, Carmen X. W. Lu, David H. Webber

Faculty Scholarship

This symposium was hosted virtually by Fordham University School of Law on October 23, 2020. The transcript has been edited for clarity and to provide sources, references, and explanatory materials for certain statements made by the speakers.

The second panel discussion was on the topic of "Stakeholders as the driving force of ESG." Panelists for the second panel were Carmen Lu, Lisa Fairfax, and David Webber.

Does Tax Matter? Evidence On Executive Compensation After 162(M)'S Repeal, Gregg Polsky, Brian Galle, Andrew Lund

Scholarly Works

As part of the most sweeping federal tax reform in a generation, the Tax Cuts and Jobs Act (“TCJA”) radically altered the tax treatment of compensation paid to senior executives of public companies. Prior to the TCJA, payment of such compensation in excess of one million dollars was non-deductible except to the extent the compensation was performance-based. The TCJA eliminated the exception so that all senior executive compensation above one million dollars is now non-deductible regardless of whether it is performance-based or not.

This reform provides a natural experiment to study the role of tax law in influencing managerial pay …

Debt’S Emotional Encumbrances, Pamela Foohey

Scholarly Works

This chapter focuses on the role of emotions in the theory and practice of commercial and consumer credit laws, including bankruptcy, in the United States. It assesses knowledge about people’s emotions regarding personal and business financial problems, and evaluates how “money law” systems account for these emotions. This assessment finds that emotions surrounding taking on and being able to pay back debt differ between business leaders and people who shoulder household debt. These differences are traceable in large part to historical understandings of the respectability of incurring debt. This history has shaped the development of bankruptcy, commercial, and consumer credit …

Unlocking Progressive Corporate Governance: The Black And Brown Hdfc Key, Gregory Louis

American University Business Law Review

No abstract provided.

The Feca’S Foreign Nationals Prohibition In United States V. Singh: Criminalizing Campaign Contributions Without The Requisite Mens Rea And The Ramifications For Foreign Corporations With Domestic Subsidiaries, Abigail Gampher

American University Business Law Review

No abstract provided.

Deciphering Property Insurers’ Indemnification Obligations After Disasters, Pandemics And Business Interruption Losses: An Analysis Of State Supreme Courts And Federal Circuits’ Declaratory Judgments, Willy E. Rice

Journal of Business & Technology Law

No abstract provided.

Public Benefit Corporations: There's No Public Benefit To Breaching Fiduciary Duties, Oderah Nwaeze

Emory Business Law Review

During the spring and summer of 2020, in the midst of the COVID-19 pandemic, the United States witnessed large, public protests and activism reminiscent of the 1950s and 60s. Following the death of George Floyd, a Black man, at the hands of Minneapolis police, the American public once again mobilized to fight the ills and inequities of racism and discrimination. A significant number of nonprofit organizations and government departments have been created to resolve the social and political issues that plague Americans. Even Corporate America has been called to act, given that seventy percent of consumers are interested in the …

Posted: No Phising, Lawrence J. Trautman, Mohammed T. Hussein, Emmanuel U. Opara, Mason J. Molesky, Shahedur Rahman

Emory Business Law Review

Any engineering approach to cybersecurity must recognize that many breaches are the result of human behavior, rather than sophisticated malware. Effective cybersecurity defenses require a systematic engineering approach that recognizes the organizational, cultural and psychological barriers to effectively dealing with this problem. The U.S. Securities and Exchange Commission (SEC) defines “phishing” as, “the use of fraudulent emails and copy-cat websites to trick you into revealing valuable personal information—such as account numbers for banking, securities, mortgage, or credit accounts, your social security numbers, and the login IDs and passwords you use when accessing online financial service providers.” Once this information is …

The Doctrine Of Implied Honesty In Contract: Is Neither A Slippery Slope Nor A "New Vista" Of Contract Nullification That Should Concern Businesses Or Franchisors, John J. Jacko Iii

Emory Business Law Review

In the fourteen years since the New York Law Journal published Franchising: LJL Transportation, Contract Nullification by Franchisor, the sky has not fallen nor has the concept of honesty in contract slipped down any slope that threatens contract law generally or franchise systems, specifically. Time has proven the critic, the criticism, and any consternation for the franchise termination opinion in LJL Transportation, Inc. v. Pilot Air Freight Corp. and the implied honesty in contract doctrine to be wrong. One franchise contracts treatise embraces and cites the LJL case for the proposition that “[h]iding revenue from the franchisor in order to …

Electric Vehicle Limbo: The Need For Charging Incentives, Shahil Patel

Emory Business Law Review

A study published by AAA in 2018 shows, “20 percent or 50 million Americans, will likely go electric for their next vehicle purchase.” This means that 1/5 Americans plan on moving on from their previous gasoline car to an electric vehicle. Fast forward to 2021, electric vehicle technology has vastly improved in the battery, range, and charging spheres which further popularizes this movement. It is evident that companies have taken note, as announcements of new electric vehicles coming to the market keeps increasing. There are many reasons for this shift and electric vehicles are set to become the future. However, …