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Articles 1 - 30 of 33
Full-Text Articles in Law and Economics
The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow
The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow
Law & Economics Working Papers
Soft law is on the ascent in international insolvency, seeming now to occupy a preferred status over boring old conventions. An arguably constitutive aspect of soft law, which some contend provides a normative justification for international law generally, is its "dialogic" nature, by which I mean its intentional exposure to recursive norm contestation and iterative development: soft law starts a dialogue. The product of that dialogue, on a teleological view, may well be hard law. In the international insolvency realm, that pathway is through (soft) model domestic legislation that aspires toward enactment as municipal law. The happy story is that …
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo
Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo
All Faculty Scholarship
The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.
Fascism And Monopoly, Daniel A. Crane
Fascism And Monopoly, Daniel A. Crane
Law & Economics Working Papers
The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Unit, this Article assesses the historical …
Forging Taiwan’S Legal Identity, Margaret K. Lewis
Forging Taiwan’S Legal Identity, Margaret K. Lewis
Brooklyn Journal of International Law
The legal system in Taiwan is undergoing a transformation. Over a hundred years since the founding of the Republic of China and over thirty years since the end of martial law on Taiwan, a new legal identity is being forged. Public criticism of “dinosaur” judges and esoteric debates among law-trained elites have galvanized efforts to create a more inclusive discussion surrounding legal reforms. Taiwan is facing the challenge of moving from dinosaurs to dynamism. This Article argues that transparency, clarity, and participation both are animating principles of the current reform debate and are beginning to emerge as characteristics of Taiwan’s …
Prosecutorial Discretion And Environmental Crime Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data For 2005-2014, David M. Uhlmann
Prosecutorial Discretion And Environmental Crime Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data For 2005-2014, David M. Uhlmann
Law & Economics Working Papers
In a 2014 article entitled “Prosecutorial Discretion and Environmental Crime,” I presented empirical data developed by student researchers participating in the Environmental Crimes Project at the University of Michigan Law School. My 2014 article reported that 96 percent of defendants investigated by the United States Environmental Protection Agency and charged with federal environmental crimes from 2005 through 2010 engaged in conduct that involved at least one of the aggravating factors identified in my previous scholarship, namely significant harm, deceptive or misleading conduct, operating outside the regulatory system, and repetitive violations. On that basis, I concluded that prosecutors charged violations that …
Should Automakers Be Responsible For Accidents?, Kyle D. Logue
Should Automakers Be Responsible For Accidents?, Kyle D. Logue
Articles
Motor vehicles are among the most dangerous products sold anywhere. Automobiles pose a larger risk of accidental death than any other product, except perhaps opioids. Annual autocrash deaths in the United States have not been below 30,000 since the 1940s, reaching a recent peak of roughly 40,000 in 2016. And the social cost of auto crashes goes beyond deaths. Auto-accident victims who survive often incur extraordinary medical expenses. Those crash victims whose injuries render them unable to work experience lost income. Auto accidents also cause nontrivial amounts of property damage—mostly to the automobiles themselves, but also to highways, bridges, or …
Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn
Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn
All Faculty Scholarship
Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second, …
Made For This Moment: The Enduring Relevance Of Adolf Berle’S Belief In A Global New Deal, Leo E. Strine Jr.
Made For This Moment: The Enduring Relevance Of Adolf Berle’S Belief In A Global New Deal, Leo E. Strine Jr.
Seattle University Law Review
At a time when the insecurity of working people in the United States and Europe is being exploited by nativist forces, the concept of a global New Deal is more relevant than ever. But, instead of a global New Deal, the predominant force in international trade in recent decades has been spreading pre-New Deal, laissez-faire approaches to markets, without extending with equal vigor the regulations essential to providing ordinary people economic security. Adolf Berle recognized that if the economy did not work for all, the worst impulses in humanity could be exploited by demagogues and authoritarians, having seen this first …
On The Origins Of The Modern Corporation And Private Property, Bernard C. Beaudreau
On The Origins Of The Modern Corporation And Private Property, Bernard C. Beaudreau
Seattle University Law Review
The Modern Corporation and Private Property (MCPP) by Adolf A. Berle Jr. and Gardiner Means, published in 1932, is undisputedly the most influential work ever written in the field of corporate governance. In a nutshell, Berle and Means argued that corporate control had been usurped by a new class of managers, the result of which included (1) shareholder loss of control (a basic property right), (2) questionable corporate objectives and behavior, and (3) the potential breakdown of the market mechanism. In this paper, I examine the origins of MCPP, paying particular attention to the authors’ underlying motives. I argue that …
The Rise And Fall (?) Of The Berle–Means Corporation, Brian R. Cheffins
The Rise And Fall (?) Of The Berle–Means Corporation, Brian R. Cheffins
Seattle University Law Review
This Article forms part of the proceedings of the 10th Annual Berle Symposium (2018), which focused on Adolf Berle and the world he influenced. He and Gardiner Means documented in The Modern Corporation and Private Property (1932) what they said was a separation of ownership and control in major American business enterprises. Berle and Means became sufficiently closely associated with the separation of ownership and control pattern for the large American public firm to be christened subsequently the “Berle–Means corporation.” This Article focuses on the “rise” of the Berle–Means corporation, considering in so doing why ownership became divorced from control …
Berle X: Berle And His World: An Homage To William W. Bratton, Charles R. T. O'Kelley
Berle X: Berle And His World: An Homage To William W. Bratton, Charles R. T. O'Kelley
Seattle University Law Review
An introduction to the Berle X symposium, honoring William W. (Bill) Bratton.
Technological And Institutional Crossroads: The Life And Times Of Adolf A. Berle Jr., Bernard C. Beaudreau
Technological And Institutional Crossroads: The Life And Times Of Adolf A. Berle Jr., Bernard C. Beaudreau
Seattle University Law Review
In this paper, I examine the life and times of Adolf A. Berle Jr., perhaps the most influential scholar in the field of corporate governance. Specifically, I examine his contribution in light of the technological and institutional changes that occurred in the late nineteenth century—changes that were germane to his thinking and understanding of corporate governance. I argue that, despite his perspicacity, he failed to appreciate the changing role of corporate officers—that is, from that of fiduciary agent to that of visionary, founder, and essential element in corporate success. Put differently, in the early twentieth century, the key asset in …
“In Time Of Stress, A Civilization Pauses To Take Stock Of Itself”: Adolf A. Berle And The Modern Corporation From The New Era To 1933, Mark Hendrickson
“In Time Of Stress, A Civilization Pauses To Take Stock Of Itself”: Adolf A. Berle And The Modern Corporation From The New Era To 1933, Mark Hendrickson
Seattle University Law Review
This Article demonstrates three things. First, an examination of Berle’s work and thinking in this critical period reveals the ways in which public problems and the need to “know capitalism,” to borrow a phrase from Mary Furner, converged in the post-WWI era in remarkable and unprecedented ways that would shape New Deal and post-New Deal politics and policy. Berle’s gift for synthesizing evidence and constructing narratives that explained complex events were particularly well suited to this era that prized the expert. Second, identifying a problem and developing a persuasive narrative is one thing, but finding solutions is another. Berle joined …
The ‘Berle And Means Corporation’ In Historical Perspective, Eric Hilt
The ‘Berle And Means Corporation’ In Historical Perspective, Eric Hilt
Seattle University Law Review
This Article presents new evidence on the evolution of the business corporation in America and on the emergence of what is commonly termed the “Berle and Means corporation.” Drawing on a wide range of sources, I investigate three major historical claims of The Modern Corporation: that large corporations had displaced small ones by the early twentieth century; that the quasi-public corporations of the 1930s were much larger than the public corporations of the nineteenth century; and that ownership was separated from control to a much greater extent in the 1930s compared to the nineteenth century. I address each of these …
Berle And Corporation Finance: Everything Old Is New Again, Frank Partnoy
Berle And Corporation Finance: Everything Old Is New Again, Frank Partnoy
Seattle University Law Review
In this essay, I want to illustrate how Adolf A. Berle Jr.’s Studies in the Law of Corporation Finance1 was prescient about the kinds of financial innovation that are central to today’s markets. For scholars who are not familiar with this publication, Corporation Finance is a compilation of edited versions of several of Berle’s articles, along with some new material, most of which is focused on 1920s corporate practice. My primary goal here is simply to shine a light on this work and to memorialize for scholars the key passages that echo many of today’s challenges. The punch line of …
The Modern Corporation And Private Property Revisited: Gardiner Means And The Administered Price, William W. Bratton
The Modern Corporation And Private Property Revisited: Gardiner Means And The Administered Price, William W. Bratton
Seattle University Law Review
This essay casts additional light on The Modern Corporation’s corporatist precincts, shifting attention to the book’s junior coauthor, Gardiner C. Means. Means is accurately remembered as the generator of Book I’s statistical showings—the description of deepening corporate concentration and widening separation of ownership and control. He is otherwise more notable for his absence than his presence in today’s discussions of The Modern Corporation. This essay fills this gap, describing the junior coauthor’s central concern—a theory of administered prices set out in a Ph.D. dissertation Means submitted to the Harvard economics department after the book’s publication.
Adolf Berle During The New Deal: The Brain Truster As An Intellectual Jobber, Robert B. Thompson
Adolf Berle During The New Deal: The Brain Truster As An Intellectual Jobber, Robert B. Thompson
Seattle University Law Review
Adolf Berle’s ideas have attained a remarkable longevity in corporate law with an influence exceeding that of any other twentieth century law professor. Participants in the now ten Berle symposia often have framed the discussion of his career as an intellectual history, usually built around the powerful transformative effect of The Modern Corporation and Private Property (MCPP). Yet this approach is insufficient to explain large parts of Berle’s professional career, including what Berle did during the twelve years of the Roosevelt Administration that immediately followed MCPP. This Article offers an alternative focus that better accounts for the career of an …
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Looking Forward In A Failing World: Adolf A. Berle, Jr., The United States, And Global Order In The Interwar Years, Jessica Wang
Looking Forward In A Failing World: Adolf A. Berle, Jr., The United States, And Global Order In The Interwar Years, Jessica Wang
Seattle University Law Review
This essay explores Berle’s understanding of American power and its relationship to global order in the era between the First and Second World Wars. I first survey the history of progressive internationalism in the 1920s in order to situate Berle’s approach to U.S. foreign relations and global affairs, before proceeding to a close examination of Berle’s immediate response to the aftermath of World War I, and then his foreign policy activities as part of the Roosevelt administration in the late 1930s and early 1940s. My analysis focuses in particular on his public efforts to promote a transformative vision of global …
Corporate Lessons For Public Governance: The Origins And Activities Of The National Budget Committee, 1919–1923, Jesse Tarbert
Corporate Lessons For Public Governance: The Origins And Activities Of The National Budget Committee, 1919–1923, Jesse Tarbert
Seattle University Law Review
There is a peculiar disconnect between the way specialists view the 1920s and the way the decade is understood by non-specialists and the general public. Casual observers tend to view the 1920s as a conservative or reactionary interlude between the watershed reform periods of the Progressive Era and New Deal. Although many scholars have abandoned the traditional view of the 1920s, their work has not yet penetrated the generalizations of non-specialists. Even readers familiar with specialist accounts portraying the New Era as the age of “corporate liberalism” or the “Associative State” tend to view these concepts as just another way …
Collected Lectures And Talks On Corporate Law, Legal Theory, History, Finance, And Governance, William W. Bratton
Collected Lectures And Talks On Corporate Law, Legal Theory, History, Finance, And Governance, William W. Bratton
Seattle University Law Review
A collection of eighteen speeches and lectures, from 2003 to 2018, discussing and expanding on the writings and theories of Adolf Berle and Gardiner Means.
Merrick Dodd And The Great Depression: A Few Historical Corrections, Charles R. T. O'Kelley
Merrick Dodd And The Great Depression: A Few Historical Corrections, Charles R. T. O'Kelley
Seattle University Law Review
Merrick Dodd is remembered primarily for his role as coprotagonist, with Adolf Berle, in the famous Berle–Dodd debate. Dodd’s contribution to that debate—For Whom are Corporate Managers Trustees?—has generally been interpreted as the inspiration for modern stakeholder theory. Berle’s contribution has generally been viewed as the foundation on which shareholder primacy rests. Both of these views have been clarified by the nuanced work of Bratton and Wachter. Oddly, while scholars have devoted a great deal of attention to Berle’s actual life story, there is almost no scholarship that sheds light on Merrick Dodd, the historical person.
Berle And Means’S The Modern Corporation And Private Property: The Military Roots Of A Stakeholder Model Of Corporate Governance, Andrew Smith, Kevin D. Tennent, Jason Russell
Berle And Means’S The Modern Corporation And Private Property: The Military Roots Of A Stakeholder Model Of Corporate Governance, Andrew Smith, Kevin D. Tennent, Jason Russell
Seattle University Law Review
The Modern Corporation and Private Property by Adolf Berle and Gardiner Means (1932) remains one of the most cited works in management studies. Our paper shows that Berle and Means espoused a stakeholder theory of corporate governance that challenged the then-hegemonic idea that the sole purpose of a corporation is to create value for the shareholders. We argue that Berle and Means’s support for stakeholder theory can be associated with their earlier service in the U.S. military, an organization which then inculcated an ethos of public service in its members. Our paper, which is based on archival research in the …
Quasi Governments And Inchoate Law: Berle’S Vision Of Limits On Corporate Power, Elizabeth Pollman
Quasi Governments And Inchoate Law: Berle’S Vision Of Limits On Corporate Power, Elizabeth Pollman
Seattle University Law Review
This Berle X Symposium essay gives prominence to distinguished corporate law scholar Adolf A. Berle, Jr. and his key writings of the 1950s and 1960s. Berle is most famous for his work decades earlier, in the 1930s, with Gardiner Means on the topic of the separation of ownership and control, and for his great debate of corporate social responsibility with E. Merrick Dodd. Yet the world was inching closer to our contemporary one in terms of both business and technology in Berle’s later years and his work from this period deserves attention.
“All Lawyers Are Somewhat Suspect”: Adolf A. Berle And The Modern Legal Profession, Harwell Wells
“All Lawyers Are Somewhat Suspect”: Adolf A. Berle And The Modern Legal Profession, Harwell Wells
Seattle University Law Review
Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This Article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would …
Democracy In America At Work: The History Of Labor’S Vote In Corporate Governance, Ewan Mcgaughey
Democracy In America At Work: The History Of Labor’S Vote In Corporate Governance, Ewan Mcgaughey
Seattle University Law Review
Can there be democracy in America at work? The historical division between democracy in politics and hierarchy in the economy is under strain. Hierarchical interests in the economy are shifting their model of power into politics, and yet a commitment to revive the law is resurgent. Central examples are the proposed Accountable Capitalism Act, Reward Work Act, Workplace Democracy Acts, and Employees’ Pension Security Acts. They would create a right for employees to elect 40% of directors on $1 billion company boards, a right for employees to elect one-third of directors on other listed company boards and require one-half employee …
The Limits Of Legal Evolution: Knowledge And Normativity In Theories Of Legal Change, Liam Mchugh-Russell
The Limits Of Legal Evolution: Knowledge And Normativity In Theories Of Legal Change, Liam Mchugh-Russell
PhD Dissertations
Over the last forty years, legal theory and policy advice have come to draw heavily from an ‘evolutionary’ jurisprudence that explains legal transformation by drawing inspiration from the theoretical successes of Darwinian natural selection. This project seeks to enrich and critique this tradition using an analytical perspective that emphasizes the material consequences of concepts and ideas. Existing theories of legal evolution depend on a positivist epistemology that strictly distinguishes the objects of social life — interests, institutions, systems — from knowledge about those objects. My dissertation explores how knowledge, and especially non-legal expertise, acts as an independent site and locus …
Bitcoin, Virtual Currencies, And The Struggle Of Law And Regulation To Keep Pace
Bitcoin, Virtual Currencies, And The Struggle Of Law And Regulation To Keep Pace
Marquette Law Review
At less than a decade old, Bitcoin and other virtual currencies have had a major societal impact, and proven to be a unique payment systems challenge for law enforcement, financial regulatory authorities worldwide, and the investment community. Rapid introduction and diffusion of technological changes throughout society, such as the blockchain that serves as Bitcoin’s crypto-foundation, continue to exceed the ability of law and regulation to keep pace. During 2017 alone, the market price of Bitcoin rose 1,735%, from about $970 to $14,292, causing an investor feeding frenzy. As of September 11, 2018, a total of 1,935 cryptocurrencies are reported, having …
Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton
Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton
Articles
In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with …