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Articles 241 - 270 of 301
Full-Text Articles in Commercial Law
Lobbying, Pandering, And Information In The Firm, Adam B. Badawi
Lobbying, Pandering, And Information In The Firm, Adam B. Badawi
Seattle University Law Review
In their classic and insightful article on team production in corporate law, Margaret Blair and Lynn Stout identify the minimization of rent-seeking as one of the chief benefits of vesting ultimate authority over a firm with the board of directors. In their analysis, this problematic rent-seeking arises when parties need to divide the gains from production after the fact. The squabbling that is likely to ensue may threaten to eat away most, or all, of the gains that come from productive activity. If parties know that this sort of rent-seeking will occur, they may not engage in productive activity in …
The History Of Team Production Theory, Ron Harris
The History Of Team Production Theory, Ron Harris
Seattle University Law Review
In this short Essay, the author consider the team production theory developed by Margaret Blair and Lynn Stout1 from a historical perspective, in three senses. First, does the theory fit the historical use of the corporate form? Second, can it explain the development of corporation law doctrines? And third, can we place the development of the theory as such into the intellectual history of corporation theories at large? The author will state my bottom line up front: while the Article finds the team production theory insightful and useful for my historical research, for teaching corporation law, and for thinking about …
Choosing The Partnership: English Business Organization Law During The Industrial Revolution, Ryan Bubb
Choosing The Partnership: English Business Organization Law During The Industrial Revolution, Ryan Bubb
Seattle University Law Review
For most of the period associated with the Industrial Revolution in Britain, English law restricted access to incorporation and the Bubble Act explicitly outlawed the formation of unincorporated joint stock companies with transferable shares. Furthermore, firms in the manufacturing industries most closely associated with the Industrial Revolution were overwhelmingly partnerships. These two facts have led some scholars to posit that the antiquated business organization law was a constraint on the structural transformation and growth that characterized the British economy during the period. Importantly, however, the vast majority of manufacturing firms in the modern sector were partnerships. An easy explanation for …
Boards Of Directors As Mediating Hierarchs, Margaret M. Blair
Boards Of Directors As Mediating Hierarchs, Margaret M. Blair
Seattle University Law Review
In June of 2014, the board of directors of Demoulas Supermarkets, Inc.—better known as Market Basket, a mid-sized chain of grocery stores in New England—decided to oust the man who had been CEO for the previous six years, Arthur T. Demoulas. Most likely, the board of directors did not anticipate what happened next: Thousands of employees, customers, and fans of Market Basket boycotted the stores and staged noisy public protests asking the board to reinstate “Arthur T.” The reaction by employees and customers made what had been a simmering, nasty, intrafamily feud within the closely held Market Basket chain into …
The Long Road To Reformulating The Understanding Of Directors' Duties: Legalizing Team Production Theory?, Thomas Clarke
The Long Road To Reformulating The Understanding Of Directors' Duties: Legalizing Team Production Theory?, Thomas Clarke
Seattle University Law Review
In this Article, the historical evolution of corporate governance is considered, highlighting the different eras of governance, the dominant theoretical and practical paradigms, and the reformulation of paradigms and counter paradigms. Two alternative and sharply contrasting theorizations, one collective and collaborative (the work of Berle and Means), the other individualistic and contractual (agency theory and shareholder value) are focused upon. The explanatory potential of Blair and Stout’s team production theory is elaborated, along with its conception of the complexity of business enterprise, with a mediating hierarch (the board of directors) securing a balance between the interests of different stakeholders. The …
The Agency Cost Paradigm: The Good, The Bad, And The Ugly, Claire A. Hill, Brett H. Mcdonnell
The Agency Cost Paradigm: The Good, The Bad, And The Ugly, Claire A. Hill, Brett H. Mcdonnell
Seattle University Law Review
In the “managerialist” world that preceded our present shareholder value world, some corporate managers could, and did, help themselves when they should have been doing their jobs. The modern agency cost paradigm has focused attention on this problem, in part by conceptualizing the duty of corporate managers as maximizing shareholder value. This paradigm has had a variety of effects: some good, some bad, and some ugly. The agency cost paradigm has had a good effect by focusing on the problem of managerial enrichment and providing a simple, clear benchmark—shareholder value-- that may quickly indicate when managers are performing badly. However, …
A Theory Of The Just Corporation, Ronit Donyets-Kedar
A Theory Of The Just Corporation, Ronit Donyets-Kedar
Seattle University Law Review
In their seminal article A Team Production Theory of Corporate Law, Margaret Blair and Lynn Stout hold that the modern corporation is best understood in terms of team production. Challenging the principal–agent model, Blair and Stout offer an analysis that considers the various stakeholders of the corporation as members of a team. Accordingly, they suggest, the purpose of corporate law is to provide a response to the problems created by collective production processes, in particular those pertaining to the distribution of profits stemming from the cooperation. According to Blair and Stout, the solution to this problem is to be found …
Team Production Theory And Private Company Boards, Elizabeth Pollman
Team Production Theory And Private Company Boards, Elizabeth Pollman
Seattle University Law Review
In their path-breaking article, A Team Production Theory of Corporate Law, Margaret Blair and Lynn Stout provided a new theory of the board of directors in a corporation. Drawing on the economic theory of team production, Blair and Stout argued that the board of directors serves as a mediating hierarchy for the firm as a whole, encouraging firm-specific investments from team members and reducing shirking and opportunistic behavior. While Blair and Stout provided a dramatically different view of the corporation from the conventional principal-agent account, they also delineated limitations to their proposed theory. Most importantly, they suggested that the …
The Corporation As Time Machine: Intergenerational Equity, Intergenerational Efficiency, And The Corporate Form, Lynn A. Stout
The Corporation As Time Machine: Intergenerational Equity, Intergenerational Efficiency, And The Corporate Form, Lynn A. Stout
Seattle University Law Review
This Symposium Article argues that the board-controlled corporation can be understood as a legal innovation that historically has functioned as a means of transferring wealth forward and sometimes backward through time, for the benefit of present and future generations. In this fashion the board-controlled corporation promotes both intergenerational equity and intergenerational efficiency. Logic and evidence each suggest, however, that the modern embrace of “shareholder value” as the only corporate objective and “shareholder democracy” as the ideal of corporate governance is damaging the corporate form’s ability to serve this economically and ethically important function.
Litigating Consumer Protection Acts In The Hamp Context, Amanda Martin
Litigating Consumer Protection Acts In The Hamp Context, Amanda Martin
Seattle University Law Review
The foreclosure crisis has lingered despite the improving economy. To alleviate this crisis, the U.S. government implemented the Home Affordable Mortgage Program (HAMP), a Treasury-sponsored initiative that aims to prevent foreclosure by encouraging mortgage loan servicers to modify the mortgages of qualified homeowners. The Treasury Department has extended HAMP multiple times—from its original ending date in 2013 to its present ending date in 2016. While HAMP has indeed helped homeowners avoid foreclosure, the program has spawned an array of litigation as servicer misconduct runs rampant. As the Ninth Circuit recently noted, “the [HAMP] program seems to have created more litigation …
Copyright, Consumerism, And The Cloud: Proposing Standards-Essential Technology To Support First Sale In Digital Copyright, Marco Puccia
Copyright, Consumerism, And The Cloud: Proposing Standards-Essential Technology To Support First Sale In Digital Copyright, Marco Puccia
Seattle University Law Review
America’s entertainment industry, and the creative talent that drives it, is a national treasure. Equally valuable, however, is America’s drive and commitment toward technological innovation. These two sectors have been in tension since at least 1908, when the U.S. Supreme Court was asked to determine whether the makers of piano rolls for automatically playing pianos had to pay royalties to the composers. Since that time, the entertainment industry has continued to use copyright law to resist advances in technological innovation that it views as a threat to its existing business models. This Note seeks to provide the necessary context and …
E-Books, Collusion, And Antitrust Policy: Protecting A Dominant Firm At The Cost Of Innovation, Nicholas Timchalk
E-Books, Collusion, And Antitrust Policy: Protecting A Dominant Firm At The Cost Of Innovation, Nicholas Timchalk
Seattle University Law Review
Amazon’s main rival, Apple, went to great lengths and took major risks to enter the e-book market. Why did Apple simply choose not to compete on the merits of its product and brand equity (the iPad and iBookstore) as it does with its other products? Why did Apple decide not to continue to rely on its earlier success of situating its products differently in the market than other electronics and working hard to be different and cutting-edge with its e-book delivery? This Note argues that the combination of Amazon’s 90% market share, network externalities, and an innovative technology market creates …
Inevitable Imbalance: Why Ftc V. Actavis Was Inadequate To Solve The Reverse Payment Settlement Problem And Proposing A New Amendment To The Hatch-Waxman Act, Rachel A. Lewis
Seattle University Law Review
The law regarding reverse payment settlements is anything but settled. Reverse payment settlements are settlements that occur during a patent infringement litigation in which a pharmaceutical patent holder pays a generic drug producer to not infringe on the pharmaceutical patent. Despite the recent decision by the United States Supreme Court in FTC v. Actavis, Inc., there are still unanswered questions about how the “full rule of reason” analysis will be applied to reverse payment. This Comment argues that despite the outcome in Actavis, the complex regulatory framework of the Hatch–Waxman Act will create repeated conflicts between antitrust law and patent …
Breaching The Accountability Firewall: Market Norms And The Reasonable Director, Joan Loughrey
Breaching The Accountability Firewall: Market Norms And The Reasonable Director, Joan Loughrey
Seattle University Law Review
This Article examines and evaluates the role of market norms in determining whether directors have acted reasonably and the appropriateness of setting a standard of reasonableness that reflects market norms. It argues that although there are situations in which a standard that reflects market norms may not be appropriate for determining the reasonableness of a director’s conduct, it is the best standard more often than not. While this Article focuses on the U.K. director’s duty of care, the question of whether compliance with market norms should be exculpatory arises every time legal or regulatory enforcement depends upon establishing that a …
Financial Innovation In East Asia, Ross P. Buckley, Douglas W. Arner, Michael Panton
Financial Innovation In East Asia, Ross P. Buckley, Douglas W. Arner, Michael Panton
Seattle University Law Review
Finance is important for development. However, the Asian financial crisis of 1997–1998 and the global financial crisis of 2008 highlighted the serious risks associated with financial liberalization and excessive innovation. East Asia’s strong focus on economic growth has necessitated a careful balancing of the benefits of financial liberalization and innovation against the very real risks inherent in financial sector development. This Article examines the role of regulatory, legal, and institutional infrastructure in supporting both financial development and limiting the risk of financial crises. The Article then addresses a series of issues with particular developmental significance in the region: trade finance, …
Evaluating The Performance And Accountability Of Regulators, Colin Scott
Evaluating The Performance And Accountability Of Regulators, Colin Scott
Seattle University Law Review
The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. In this Article, I follow the logic of an argument that regulation necessarily has political dimensions, even where it may appear technical. I am asking questions about how we might …
The Timing And Source Of Regulation, Frank Partnoy
The Timing And Source Of Regulation, Frank Partnoy
Seattle University Law Review
The distinction between specific concrete rules and general abstract principles has engaged legal theorists for decades. This rules–principles distinction has also become increasingly important in corporate and securities law, as well as financial market regulation. This Article adds two important variables to the rules–principles debate: timing and source. Although these two variables are relevant to legal theory generally, the specific goal here is not to address and engage the rules versus principles literature directly. Rather, the goal here is to ask whether the debate about financial market regulation might benefit from a more transparent analysis of temporal and legal source …
Deferred Prosecutions In The Corporate Sector: Lessons From Libor, Justin O'Brien, Olivia Dixon
Deferred Prosecutions In The Corporate Sector: Lessons From Libor, Justin O'Brien, Olivia Dixon
Seattle University Law Review
Since 2008, the global economic downturn has significantly in-creased operating pressures on major corporations. Additionally, there has been a corresponding increase in corporate tolerance for corruption, which has coincided with a marked preference by regulators in settling, rather than litigating, enforcement actions. This Article argues that the expansion of prosecutorial authority without appropriate accountability restraints is a major tactical and strategic error. It evaluates whether the mechanism can be made subject to effective oversight. It argues that the current frame-work in the United States is highly problematic, leading to settlements that generate newspaper headlines but not necessarily cultural change. It …
Enhancing The Transparency Dialogue In The “Santiago Principles” For Sovereign Wealth Funds, Adam D. Dixon
Enhancing The Transparency Dialogue In The “Santiago Principles” For Sovereign Wealth Funds, Adam D. Dixon
Seattle University Law Review
The financial crisis ultimately caused Western governments to welcome sovereign wealth fund (SWF) investment as a way to put a floor under collapsing markets and to provide a set of voluntary principles that would underwrite SWFs’ claim to legitimacy in the international community. In the autumn of 2007, then U.S. Treasury Secretary Henry Paulson, in conjunction with the International Monetary Fund, convened the International Working Group of SWFs (IWG) to draft a set of generally accepted principles and practices. These principles are referred to as the “Santiago Principles.” The implicit objective of these twenty-four voluntary principles is to promote greater …
Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien
Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien
Seattle University Law Review
The global investigations into the manipulation of the London Interbank Offered Rate (Libor) have raised significant questions about how conflicts of interest are managed for regulated entities contributing to benchmarks. An alternative framework, which brings the management of the rate process under direct regulatory supervision, is under consideration, coordinated by the International Organization of Securities Commissions taskforce. The articulation of global principles builds on a review commissioned by the British government that suggests rates calculated by submission can be reformed. This paper argues that this approach is predestined to fail, precisely because it ignores the lessons of history. In revisiting …
The New Policing Of Business Crime, Rachel E. Barkow
The New Policing Of Business Crime, Rachel E. Barkow
Seattle University Law Review
The central goal of this Article is to describe the burgeoning turn to new policing techniques in the business crime context and to offer some initial thoughts on the promises and limits of the approach. Part II begins by explaining the traditional or “old policing” of business crime. After implementing an initial strategy that focused on pursuing individuals, the government turned its attention to the organizations where those individuals operated. It increased the sanctions for violators and sought to target companies in an effort to prompt them to adopt internal compliance pro-grams. The focus on company compliance programs was designed …
Australia’S Experience With Foreign Direct Investment By State Controlled Entities: A Move Towards Xenophobia Or Greater Openness?, Greg Golding
Seattle University Law Review
Over the last few years, there has been considerable debate in Australia as to the appropriate regulation of foreign direct investment by entities affiliated with foreign governments. During that time, Australia has been a significant beneficiary of investment by sovereign wealth funds from many foreign jurisdictions, particularly by Chinese state owned enterprises. The Australian government, similar to governments of many developed Western countries, has struggled to properly calibrate its policy settings for regulating this type of investment activity. This Article considers the Australian regulatory regime and assesses Australia’s experience in regulating those investment flows during this period.
Are Defined Contribution Pension Plans Fit For Purpose In Retirement?, Jeremy R. Cooper
Are Defined Contribution Pension Plans Fit For Purpose In Retirement?, Jeremy R. Cooper
Seattle University Law Review
This Article considers the historical basis for the shift from defined benefit plans to defined contribution plans, the structural and practical shortcomings of defined contribution plans, alternate pension models, and adjustments to existing retirement plan models that may offer a degree of protection to plan contributors. Like the United States, Australia is now realizing the limitations of a defined contribution retirement system insofar as it relates the provision of reliable retirement income for a population with increasing life expectancy. Unlike defined contribution plans, defined benefit plans provide a benefit based typically on time served and a predetermined proportion of either …
Costing A Pretty Penny: Online Penny Auctions Revive The Pestilence Of Unregulated Lotteries, David R. Konkel
Costing A Pretty Penny: Online Penny Auctions Revive The Pestilence Of Unregulated Lotteries, David R. Konkel
Seattle University Law Review
Penny auctions, an online phenomenon imported from Europe, operate by the hundreds in the United States without meaningful oversight from consumer protection agencies. In a penny auction, consumers compete for items one penny at a time. To date, no significant inquiry, either academic or practical, into the legitimacy of the penny auction has occurred. Although marketed as auctions, online penny auctions may actually qualify as lotteries. Unlike the multifarious and confusing definitions of gambling, the long-accepted definition of a lottery consists of three elements: prize, consideration, and chance. If a penny auction satisfies this definition then, under well-established case law …
Law And Lawyers In The Incident Command System, Clifford J. Villa
Law And Lawyers In The Incident Command System, Clifford J. Villa
Seattle University Law Review
Although the Incident Command System (ICS) has existed for some forty years, the use of ICS grew significantly in the past decade because the United States learned hard lessons from infamous failures of incident management after 9/11 and Hurricane Katrina. As such, ICS theory and practice must be understood by legal scholars and practitioners who seek to contribute to the growing fields of climate change adaptation and disaster response. Filling a gap in the legal literature, this article will provide lawyers and legal scholars with an introduction to the Incident Command System, outlining the origin, doctrines, and organizational framework of …
Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande
Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande
Seattle University Law Review
The predominant view in the antitrust field has been that private enforcement, and especially class action cases, yields little or no positive results. This Article analyzes these twenty cases, compares and contrasts their analysis with that of our earlier group of forty cases, and draws new insights from the results of all sixty combined. This Article demonstrate that private antitrust litigation has provided a substantial amount of compensation for victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also demonstrate that private antitrust enforcement has had an extremely strong deterrent effect. In fact, this research demonstrates that …
Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin
Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin
Seattle University Law Review
For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted …
Leveraged Etfs: The Trojan Horse Has Passed The Margin-Rule Gates, William M. Humphries
Leveraged Etfs: The Trojan Horse Has Passed The Margin-Rule Gates, William M. Humphries
Seattle University Law Review
What do the Great Depression, the Great Recession, and the demise of Lehman Brothers and Bear Sterns all have in common? One word: leverage. The misuse of leverage, in all its forms, contributed greatly to all of these events. Yet even today, common investors can purchase a leveraged exchange-traded fund (leveraged ETF), a complex product that uses leverage to increase returns, without triggering applicable laws designed to regulate the use of leverage. This Comment articulates the basics surrounding the functions and operations of leveraged ETFs and margin rules in order to assess the compatibility of the two. The Comment argues …
The Challenges For Directors In Piloting Through State And Federal Standards In The Maelstrom Of Risk Management, Chief Justice E. Norman Veasey
The Challenges For Directors In Piloting Through State And Federal Standards In The Maelstrom Of Risk Management, Chief Justice E. Norman Veasey
Seattle University Law Review
In the 2010 Berle Center Directors’ Academy Keynote Address, Chief Justice Veasey addresses “the federal and state contexts relating to the corporate-governance focus on business risk and the expectations laid at the doorstep of directors and officers of U.S. public companies.” Specifically, Chief Justice Veasey looks “at the governance landscape through both a federal regulatory lens and a state judicial lens as it relates to risk assessment and risk management.”
See No Evil? Revisiting Early Visions Of The Social Responsibility Of Business: Adolf A. Berle’S Contribution To Contemporary Conversations, Erika George
Seattle University Law Review
Much corporate legal scholarship considers such fact patterns as beyond the scope of the discipline’s core concerns. Yet, increasingly, questions are asked concerning the scale and scope of modern corporate power. This Article will challenge the conventional understanding of what the core discipline of corporate law should encompass and argues that the failure to focus on precisely these sorts of factual scenarios involving allegations of corporate complicity in human rights violations and environmental degradation is misguided and short-sighted.