Business Organizations Law Commons^™

Expropriation Of Shares Via The Corporate Constitution, Stephen Bull

Research Collection Yong Pung How School Of Law

Company constitutions sometimes include powers to effect compulsory share acquisitions from members. Where these are introduced into the constitution after incorporation, the amendment, like all constitutional alterations, must be able to satisfy the common law “bona fide test” in order to be valid. The content of this test has been much debated since the first cases a century ago, and differences in view have emerged from the English and Australian courts. While there is no local case law on such expropriations per se, the High Court recently confirmed for the first time the applicability in Singapore of the common law …

Agentes Artificiales En Las Juntas Corporativas, Sergio Alberto Gramitto Ricci, David Cordero-Heredia, Carlos A. Carillo-Jaramillo

Faculty Works

Miles de afios atras, empresarios romanos gestionaban negocios conjuntos a traves de esclavos altamente inteligentes de propiedad comun. Los esclavos romanos no tenfan plena capacidad legal y eran considerados propiedad de sus duefios comunes. Ahora, las corporaciones buscan delegar la toma de decisiones a maquinas superinteligentes mediante el uso de inteligencia artificial en las juntas corporativas. La inteligencia artificial podrfa asistir, integrar e incluso reemplazar a los directores humanos. Sin embargo, el concepto de usar inteligencia artificial en las juntas directivas esta, en gran medida, inexplorado y plantea varios problemas. Este artfculo arroja luz sobre los desaffos legales y de …

What's The Beef With Tax Credits? Feeding California’S Animal Production Industry, Stephanie Don

UC Law Business Journal

California’s animal production industry is a powerhouse in the United States food supply chain. In 2021, California generated $12.8 billion in gross cash income from animal production alone, ranking California’s animal production industry as #7 among the states. However, most small farms reported net losses. This paper identifies two financial issues plaguing California’s small farms in the animal production industry: monopolization, and the cost of complying with California’s heightened standard for ethical animal production.

First, the monopolization of small farms is a nationwide issue. In 2022, only four companies controlled 85% of meat packing in the United States. Large companies …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Empowering Consumer Rights And Community Welfare: Enhancing Corporate Accountability Through A Geographical Indication Licensing Policy, Akriti ., Sarang Sureshrao Khadkekar, Pinaki Ghosh

International Journal on Consumer Law and Practice

Geographical Indications are a unique form of intellectual property that can potentially improve social-economic welfare. The Indian GI Act is based on the concept of consumer welfare, which prevents market activities that can mislead or confuse consumers. Such confusion can be about the source of origin, the quality, or the reputation of the goods. However, several studies have shown the rampant use of GI names by unauthorized persons and Corporations, creating dangers of diluting the reputation of GI names. Such unauthorized use of GI names results in an unfair commercial advantage to these infringers. Not only that, a genuine consumer …

Antitrust, Amazon, And Algorithmic Auditing, Jens Frankenreiter, Abhisek Dash, Abhijnan Chakraborty, Saptarshi Ghosh, Animesh Mukherjee, Stefan Bechtold, Krishna P. Gummadi

Scholarship@WashULaw

In digital markets, antitrust law and special regulations aim to ensure that markets remain competitive despite the dominating role that digital platforms play today in everyone's life. Unlike traditional markets, market participant behavior is easily observable in these markets. We present a series of empirical investigations into the extent to which Amazon engages in practices that are typically described as self-preferencing. We discuss how the computer science tools used in this paper can be used in a regulatory environment that is based on algorithmic auditing and requires regulating digital markets at scale.

Sticky Charters? The Surprisingly Tepid Embrace Of Officer-Protecting Waivers In Delaware, Jens Frankenreiter, Eric L. Talley

Scholarship@WashULaw

This article investigates the reaction to a much-heralded 2022 legal reform in Delaware that permitted a corporation’s charter to exculpate its officers from monetary exposure for breaching their fiduciary duty of care. To isolate reactions to this statutory reform, we make extensive use of generative AI tools to identify and interpret charter amendments that introduce officer-facing waivers. We find a surprisingly tepid rate of uptake among Delaware corporations through the end of the first post-reform year, notwithstanding widespread predictions that corporate entities would quickly storm the exculpation exits once permitted to do so.

Our study makes two contributions to the …

Sex & Startups, Jens Frankenreiter, Talia B. Gillis, Eric L. Talley

Scholarship@WashULaw

Venture capital is widely perceived to have a gender problem. Both founders seeking capital and the investors themselves are overwhelmingly male, fomenting concerns about how—and how fairly—the VC sector distributes its economic gains. Although gender disparities in funding are well documented, we still know little about whether the governance of VC-backed startups similarly manifests gender imbalances. This knowledge gap is critical, since VC investments often carry strings attached, in the form of cash flow and control rights that can vary substantially from deal to deal.

This study unveils a first-of-its-kind dataset that offers detailed insights into the governance of VC-backed …

Profit, Mission, And Protest At Work, Marion Crain

Scholarship@WashULaw

The classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called “woke capitalism” signal their virtuous support for progressive social causes favored by both their consumer base and their idealistic young workers. This has become particularly important in a tight labor market: by targeting workers’ values, savvy firms increase recruiting yields, enhance productivity, and reduce training costs as retention rates rise, while …

Mythical Adverse Effect, Naveen Thomas

Faculty Scholarship

No abstract provided.

Climate, Clarity, Controversy: A Constitutional, Statutory, And Policy Analysis Of The Sec’S Proposed Climate Disclosure Rules, Astoneia O. Moss

Emory Business Law Review

The burgeoning ESG movement has heightened investors’ interest in how companies steward the environment in which they operate; manage their human capital; and implement strategies to effectively manage and fulfill the desires of stakeholders. As a result, the SEC has sought to implement a mandatory climate-related disclosure regime to provide investors with public companies’ climate-related data to assist in the investment decision-making process. The proposed climate-related disclosure rule has faced criticism from businesses, politicians, and legal scholars on constitutional, statutory, and policy grounds. This Comment concludes that based on the statutory language of the Securities Act of 1933 and Securities …

The Rise Of Labor Issues As An Antitrust Priority, Richard Dagen, Maryanne Magnier

Emory Business Law Review

No abstract provided.

For The Birds: Trademark And Brand Management Considerations For The Rebranded Digital Town Square, Arielle Levin

Emory Business Law Review

No abstract provided.

Settlement As Construct: Defining And Counting Party Resolution In Federal District Court, Charlotte S. Alexander, Nathan Dahlberg, Anne M. Tucker

Scholarly Works

Most civil cases settle. Yet generating a definitive settlement rate presents complex definitional and empirical problems, both in what should count as a settlement and how to count it. This Essay makes three contributions to better understanding and defining settlement. First, we propose a flexible, empirically informed, operationalizable definition of settlement as party resolution. Second, we exploit a new federal litigation data source to count party resolutions using machine learning models trained on 11 million docket sheet entries. Third, we offer new findings on party resolution frequency and distribution in the federal courts. Settlement is more widely and differently deployed …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Nonprofit Corporations & Politics: The Entity/Coordination Tension, Lloyd Hitoshi Mayer

Journal Articles

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared …

Venture Capital And Financial Stability, Ann Lipton

Publications

No abstract provided.

Will The Real Shareholder Primacy Please Stand Up?, Ann Lipton

Publications

No abstract provided.

Every Billionaire Is A Policy Failure, Ann Lipton

Publications

No abstract provided.

Socially Acceptable Securities Fraud, Christine Hurt

Faculty Journal Articles and Book Chapters

What is a lie? Moreover, where is it a lie? Lies are bad. Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 create liability for issuer firms and individuals who make “an untrue statement of a material fact” or omit “a material fact required to be stated therein or necessary to make the statements therein not misleading.” In the ninety years since the passage of the Securities Exchange Act, however, the number of ways in which market participants may publicly disseminate statements that will be consumed by investors has exploded; does 10b-5 really apply to all these …

Corporate Governance Through Social Media, Christina M. Sautter

Faculty Journal Articles and Book Chapters

Retail investors and other stakeholders are vigorously and loudly taking positions regarding corporate governance issues on social media. They are gathering on social media to discuss which stocks to invest in and to debate and collectively act on corporate governance-related matters. Propelled by new technologies and social media, retail investor engagement has shifted away from traditional venues like corporate voting and shareholder proposals. Retail investors have opened tens of millions of new brokerage accounts since 2020. These new retail investors, primarily Millennials and GenZ’ers, are adept at using technology and naturally gather and obtain information on social media. A co-author …

Law’S Detrimental Reliance On Intermediaries, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technology is law’s magic mirror. Even as law seeks to cabin the effects of emerging technology in society, when we hold emerging technology up to law, emerging technology often reflects flaws or gaps in legal constructs. Of course, rather than recognizing those flaws or gaps, law retorts back “mirror, mirror, on the wall, who is the fairest of them all?,” demanding that all other disciplines and constructs bow before law’s mighty, near-perfect reach. Often, no matter how strongly emerging technology demands that law bend, legal evolution only occurs after regulatory failures harm individuals on a massive scale. One emerging …

The Thrusts And Parries Of Policy Arguments, Scott Hirst

Faculty Scholarship

Anyone who has ever put forward a policy proposal has heard the response, “if it ain’t broke, don’t fix it.” But despite the ubiquity of this attack on policy proposals, there has been little sustained inquiry into how the attack works and how it can be defended. The goal of this Article is to identify policy attacks like this, and to show their underlying logical structure, and how they function to attack policy proposals. The Article demonstrates this approach by considering three generic attacks on policy proposals, which I refer to as ain’t broke attacks, partial framing attacks, and dollar …

Intermediaries And Differentiated Voting, Usha Rodrigues

Scholarly Works

This article explores the implications of differentiated voting—precatory, volitional, veto, and vetting—for institutional intermediaries such as mutual funds and pension funds. Building on the work of Jill Fisch and Jeff Schwartz, the piece argues that fund managers should exercise informed fiduciary judgment rather than rely on pass-through voting, which often proves impractical for retail investors. While precatory proposals on broad governance or ESG issues may allow meaningful shareholder input, director elections, bylaw amendments, mergers, and conflicted transactions require the expertise and discretion of intermediaries. Using Tesla as a case study, the article illustrates how different voting categories operate in …

Fiscal Equity: The Non-Profit Model Of Corporate Ownership, Eric A. San Juan

American University Business Law Review

In an era of excessive executive compensation, the non-profit corporation serves as an exemplary alternative. Voluntarily, some brand-name manufacturers operate under existing law that permits non-profit ownership. Virtually all corporations could become non-profits under a legislative reform potentially more effective than past redistributive measures. Twentieth-century progressive taxation has waned, while initiatives to endow impoverished children with personal accounts have not expanded beyond pilot programs. Instead, economic inequality widens with global industrialization. Traditionally, deprivation led to the call for the abolition of private ownership of the means of production, yet this proved impracticable under revolutionary regimes. A review of the evolution …

Communication Decency Act And The Intellectual Property Exception, Casey Windsor

American University Business Law Review

As the internet proliferated in the 1990s, Congress became concerned with courts impeding the advancement of the internet and the distribution of obscene materials. Congress passed Section 230 of the Communication Decency Act (CDA), which was part of the Telecommunications Act of 1996. Section 230(c), known as the “Good Samaritan” provision, gave broad immunity to interactive computer services providers (ISPs) who monitor third-party content posted to their website.3 Section 230 created the regulatory foundation for modern day ISPs, including social media websites like Facebook.