Commercial Law Commons^™

Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian

Faculty Publications

In this essay for a symposium on Professor Nathan Oman's new book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman's argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called "doux commerce" thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke's critique from …

Do We Need A Global Commercial Code?, Michael Joachim Bonell

Dickinson Law Review (2017-Present)

The International Institute for the Unification of Private Law (UNIDROIT) first launched the idea of preparing a code of inter- national trade law. In 1970, the Secretariat of UNIDROIT submitted a note to the newly established United Nations Commission on International Trade Law (UNCITRAL) in justification of such an initiative and indicated some of the salient features of the project. What was proposed was a veritable code in the continental sense. The proposed code included two parts: part one dealing with the law of obligations generally, and part two relating to specific kinds of commercial transactions. However, the “Progressive codification …

Uniform Commercial Acts, Samuel Williston

Dickinson Law Review (2017-Present)

No abstract provided.

The Uniform Commercial Acts, J.P. Mckeehan

Dickinson Law Review (2017-Present)

The Commissioners on Uniform State Laws have had twenty- five annual conferences. The principal fruit of their labors is represented by the Negotiable Instruments Act, enacted in forty-seven jurisdictions; the Warehouse Receipts Act, enacted in thirty-one jurisdictions; the Sales Act, enacted in fourteen jurisdictions, the Bills of Lading Act enacted in thirteen jurisdictions, and the Stock Transfer Act, enacted in nine jurisdictions. They have also drafted acts relating to divorce, family desertion, probate of wills, marriage evasion, workmen’s compensation and partnership but these have not yet been enacted in more than a few states. All of the commercial acts are …

The Role Of Social Enterprise And Hybrid Organizations, Ofer Eldar

Faculty Scholarship

Recent years have brought remarkable growth in hybrid organizations that combine profit-seeking and social missions. Despite popular enthusiasm for such organizations, legal reforms to facilitate their formation and growth—particularly, legal forms for hybrid firms—have largely been ineffective. This shortcoming stems in large part from the lack of a theory that identifies the structural and functional elements that make some types of hybrid organizations more effective than others. In pursuit of such a theory, this Article focuses on a large class of hybrid organizations that has been effective in addressing development problems, such as increasing access to capital and improving employment …

The Corporation In The Marketplace Of Ideas, 51 J. Marshall L. Rev. 19 (2017), Matthew Telleen

UIC Law Review

No abstract provided.

Money Norms, Julia Y. Lee

Faculty Scholarship

Money norms present a fundamental contradiction. Norms embody the social sphere, a system of internalized values, unwritten rules, and shared expectations that informally govern human behavior. Money, on the other hand, evokes the economic sphere of markets, prices, and incentives. Existing legal scholarship keeps the two spheres distinct. Money is assumed to operate as a medium of exchange or as a tool for altering the payoffs of different actions. When used to make good behavior less costly and undesirable behavior more costly, money functions to incentivize, sanction, and deter. Although a rich literature on the expressive function of law exists, …

Is Incorporation Really Better Than Central Management And Control For Testing Corporate Residency? An Answer To Corporate Tax Evasion And Inversion, Charles Edward Andrew Lincoln Iv

Student Scholarship

No abstract provided.

Trans-Pacific Partnership: Continuity And Breakthroughs In U.S. Investment Treaty Practice, Charles Hendrickson Brower Ii

Law Faculty Research Publications

In October 2015, the United States completed negotiations for the Trans- Pacific Partnership (“TPP”), a free trade agreement among twelve Pacific Rim states.1 According to the White House, TPP will “rewrite the rules of trade,” will include “high standards . . . that . . . upgrade our existing agreements,” and will “have a profound impact on . . . how we invest in the developing world.”2 By contrast, the leading presidential candidates from both parties offer distinctly negative assessments of TPP. Hillary Clinton has opined that TPP does not meet the “very high” bar she would set for producing …

The Convention On The Uniform Law Of International Bills Of Exchange And International Promissory Notes: A Comparison To The Uniform Commercial Code, Harold S. White

Georgia Journal of International & Comparative Law

No abstract provided.

Commitment And Entrenchment In Corporate Governance, K.J. Martijn Cremers, Saura Masconale, Simone M. Sepe

Northwestern University Law Review

Over the past twenty years, a growing number of empirical studies have provided evidence that governance arrangements protecting incumbents from removal promote managerial entrenchment, reducing firm value. As a result of these studies, “good” corporate governance is widely understood today as being about stronger shareholder rights.

This Article rebuts this view, presenting new empirical evidence that challenges the results of prior studies and developing a novel theoretical account of what really matters in corporate governance. Employing a unique dataset that spans from 1978 to 2008, we document that protective arrangements that require shareholder approval—such as staggered boards and supermajority requirements …

Regulating The Food Truck Industry: An Illustration Of Proximity And Sanitation Regulations, Nicholas Alvarez

Journal of Food Law & Policy

Manny Hernandez, a Chicago food truck owner, would wake up in the middle of the night and slowly travel by foot around downtown Chicago carrying a 200-foot rope. The rope was used to measure the distance from the doors of brick-and-mortar restaurants to possible parking locations for his food truck. A Chicago ordinance prohibited food trucks from operating within 200 feet of the front door of any brick-and-mortar restaurant. Furthermore, Manny could not just find one spot; he needed to find many spots because Chicago law also stated that food trucks were only allowed to park at one location for …

What's Driving Acquisitions? An In-Depth Analysis Of Ceo Drivers Determining Modern Form Acquisition Strategy, Jennifer E. Wuebker

University of Richmond Law Review

Part I provides an overview of the acquisition landscape, including

a brief history of the prevalence and success of acquisitions

as well as an analysis of acquisitions today. Part II outlines

the acquisition process and highlights the importance and dynamics

of decision making, both in principle and in practice. Part

III explores two theories of acquisitive strategy driving CEO decision

making: value enhancement and private interest. Part IV

analyzes the implications of CEO personality and psychological

drivers on acquisition strategy and decision making. This article

argues that CEO traits are central decision drivers, but that no

particular set of traits …

Over-The-Counter Derivatives In A Global Financial Marketplace: The Case For Uniform Global Identifiers And Compatible Reporting Requirements In Substituted Compliance Comparability Determinations, Kimberly R. Thomasson

Catholic University Law Review

The 2008 financial crisis prompted a global regulatory overhaul of over-the-counter derivative markets. The Dodd-Frank Act mandated the CFTC and SEC to issue new rules and regulations to bring the majority of the OTC derivative market out of the dark on onto regulated exchanges. Similar action was taken in the European Union and other G20 nations. There has been a push to harmonize rules for OTC derivatives across jurisdictions to make the market more efficient and eliminate regulatory arbitrage. This Comment focuses on the process for a regulated entity in the US and EU to “substitute compliance” with its home …

Berle Vii: The Modern Corporation And A Theory Of Fields, Charles R. T. O'Kelley

Seattle University Law Review

On May 26-27, 2015, scholars disparately trained in law, anthropology, economics, political science, history and sociology gathered in Seattle for the seventh annual Berle Symposium. As with prior symposia, a principal aim of Berle VII was to shed light on the nature of the modern corporation. As with prior symposia, the voices participating represented numerous disciplines. What sets Berle VII apart from its forerunners, however, was the decision to make social scientists the dominant voices, and to select a theory propounded by sociologists—field theory—as the focal point and backdrop for the symposium. This choice reflected a second principal aim of …

On The Existential Function Of The Social And The Limits Of Rationalist Accounts Of Human Behavior, Doug Mcadam

Seattle University Law Review

Rational choice theory has achieved widespread influence in a number of social science disciplines, most notably economics and political science. Given its prominent position within economics, it is not surprising that rational choice theory (and other rationalist perspectives) dominates theory and research on the corporation and decision-making by corporate actors. By contrast, however, the theory has failed to gain more than a toehold in sociology. Indeed, most sociologists are downright hostile to rational choice theory. When pressed to explain why, those in the discipline are very likely to complain that the perspective is “asociological”; that the theory posits an atomized …

Benefit Corporations And Strategic Action Fields Or (The Existential Failing Of Delaware), Brett Mcdonnell

Seattle University Law Review

This Article analyzes the creation and growth of benefit corporations from the perspective of strategic action field theory in an attempt to shed some light upon both the subject and the methodology. It considers how the new legal field of benefit corporations responded to weaknesses in the existing fields of business and nonprofit corporations. Where major field participants such as directors, officers, employees, shareholders, or donors wish to pursue both financial and public-spirited goals that sometimes conflict without subordinating either type of goal to the other, both profit and nonprofit corporations may be unsatisfactory. Benefit corporations attempt not only to …

Corporations In The Flow Of Culture, Greg Urban

Seattle University Law Review

As an anthropologist, coming out of three decades of research among indigenous Brazilian populations, I naturally saw modern for-profit business corporations as tribes—the collective bearers of adaptive cultural know-how. They appeared to me to be the entities housing the culture needed to produce commodities, to trade commodities on the open market, or both. I was also, of course, aware of the legal concept of the corporation as fictive person capable of owning property and having standing in court cases, which I thought of as akin to the anthropological corporation insofar as both recognized the group as social actor. However, it …

Culture In Corporate Law Or: A Black Corporation, A Christian Corporation, And A Māori Corporation Walk Into A Bar . . ., Gwendolyn Gordon

Seattle University Law Review

Recent Supreme Court cases have entrenched a new image of corporate civic identity, assigning to the corporate person rights and abilities based upon the cultural characteristics, social ties, civic commitments, and internal lives of the human beings involved in it. This vision of the corporation is exemplified in recent cases implicating a corporate right to engage in political speech (Citizens United v. Federal Election Commission) and a right of corporations to be free of government interference regarding religious convictions (Burwell v. Hobby Lobby Stores, Inc.). Although much is being written about the soundness of the results in these cases and …

The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern

Seattle University Law Review

The English East India Company was first chartered in 1600, endured until the late nineteenth century, and, in a clever act of corporate resurrection, has even recently returned as a global, upmarket retail outlet selling fine foods and commemorative coins. It has also endured in the popular imagination and culture, churning out heroes and villains alike in film, television, and video games. The script writer for a forthcoming BBC miniseries, in which the East India Company stars as the prime antagonist, even noted recently that the Company was like “the CIA, the NSA, and the biggest, baddest multinational corporation on …

Remarks: The Declining Role Of Outside Counsel In Enhancing Ethical Conduct By Corporations, Jed S. Rakoff

Seattle University Law Review

Judge Rakoff’s remarks from the seventh annual Berle Symposium, held May 26–27, 2015 at Seattle University School of Law.

"Special," Vestigial, Or Visionary? What Banking Regulation Tells Us About The Corporation—And Vice Versa, Robert C. Hockett, Saule T. Omarova

Seattle University Law Review

A remarkable yet seldom noted set of parallels exists between modern U.S. bank regulation, on the one hand, and what used to be garden-variety American corporate law, on the other hand. For example, just as bank charters are matters not of right but of conditional privilege even today, so were all corporate charters not long ago. Just as chartered banks are authorized to engage only in limited, enumerated activities even today, so were all corporations restricted not long ago. And just as banks are subject to strict capital regulation even today, so were all corporations not long ago. In this …

What Might Replace The Modern Corporation? Uberization And The Web Page Enterprise, Gerald F. Davis

Seattle University Law Review

The number of public corporations in the United States has been in decline for almost twenty years. Alternative forms of organization, from LLCs and benefit corporations to Linux and Wikipedia, provide robust competition to traditional corporations, while short-lived, project-based enterprises that assemble supply chains from available parts are increasingly cost effective. Yet our understanding of corporate governance has not kept pace with the new organization of the economy and we continue to treat the public corporation with dispersed ownership as the default form of doing business. Meanwhile, many of the corporations going public in recent years have abandoned traditional standards …

The Rhetoric Of Negative Externalities, Claire A. Hill

Seattle University Law Review

Negative externalities are costs imposed on third parties. The paradigmatic example is pollution. A firm manufactures a product that generates toxic waste, and dumps the waste; society pays for the associated cost, including, for instance, the community’s health problems caused by the waste. Profit is supposed to measure the firm’s revenues in excess of the associated costs; because this cost is not included, the firm’s profits are higher than they should be, and there is more pollution than there should be. What is privately optimal diverges from what is socially optimal. The concept of negative externalities is intuitively appealing. It …

The Widening Scope Of Directors' Duties: The Increasing Impact Of Corporate Social And Environmental Responsibility, Thomas Clarke

Seattle University Law Review

This Article concerns the widening scope of directors’ duties under the increasing impact of the pressures for corporate social and environmental responsibility. Narrow interpretations of directors’ duties that focus simply on the commercial success of the business and relegate other considerations to externalities are not tenable in the present context. The dawning realization of the global consequences of imminent climate change provides a series of inescapable challenges for business enterprises.

Bringing Continuity To Cryptocurrency: Commercial Law As A Guide To The Asset Categorization Of Bitcoin, Evan Hewitt

Seattle University Law Review

This Note will undertake to analyze bitcoin under the Uniform Commercial Code (UCC) and the Internal Revenue Code (IRC)—two important sources of commercial law—to see whether any existing asset categories adequately protect bitcoin’s commercial viability. This Note will demonstrate that although commercial law dictates that bitcoin should—nay must—be regulated as a currency in order to sustain its existence, the very definition of currency seems to preclude that from happening. Therefore, this Note will recommend that we experiment with a new type of asset that receives currency-like treatment, specifically designed for cryptocurrencies, under which bitcoin can be categorized in order to …

Law And The Theory Of Fields, Frank Partnoy

Seattle University Law Review

The distinction between “material” and “existential” plays a prominent role in A Theory of Fields, and it played a prominent role in discussions at the Berle VII Symposium. In general, the authors advocated the importance of the ongoing use of social skills and the collaborative efforts to seek meaning, particularly in ways beyond the merely “material.” However, the extent to which rules might matter in these efforts was less clear. Overall, Fligstein and McAdam seek to use the concept of a strategic action field to develop a theory of social change and stability. Yet social change and stability are inextricably …

Notes On The Difficulty Of Studying The Corporation, Marina Welker

Seattle University Law Review

In the award-winning documentary The Corporation, public intellectuals and activists characterize corporations as “externalizing machines,” “doom machines,” “persons with no moral conscience,” and “monsters trying to devour as much profit as possible at anyone’s expense.” In other footage, people on the street personify corporations: “General Electric: a kind old man with lots of stories;” “Nike: young, energetic;” “Microsoft: aggressive;” “McDonald’s: young, outgoing, enthusiastic;” “Monsanto: immaculately dressed;” “Disney: goofy;” “The Body Shop: deceptive.” The documentary, like screenwriter and legal scholar Joel Bakan’s book The Corporation: The Pathological Pursuit of Profit and Power, imparts dissonant messages about corporations. On the one hand, …

The Theory Of Fields And Its Application To Corporate Governance, Neil Fligstein

Seattle University Law Review

My goal here is twofold. First, I want to introduce the theory of strategic action fields to the law audience. The main idea in field theory in sociology is that most social action occurs in social arenas where actors know one another and take one another into account in their action. Scholars use the field construct to make sense of how and why social orders emerge, reproduce, and transform. Underlying this formulation is the idea that a field is an ongoing game where actors have to understand what others are doing in order to frame their actions. Second, I want …

Agency Theory As Prophecy: How Boards, Analysts, And Fund Managers Perform Their Roles, Jiwook Jung, Frank Dobbin

Seattle University Law Review

In 1976, Michael Jensen and William Meckling published a paper reintroducing agency theory that explained how the modern corporation is structured to serve dispersed shareholders. They purported to describe the world as it exists but, in fact, they described a utopia, and their piece was read as a blueprint for that utopia. We take a page from the sociology of knowledge to argue that, in the modern world, economic theories function as prescriptions for behavior as much as they function as descriptions. Economists and management theorists often act as prophets rather than scientists, describing the world not as it is, …