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Articles 211 - 240 of 299
Full-Text Articles in Law and Politics
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 …
“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 …
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
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 …
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 …
“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 …
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 …
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 …
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.
20/20 Vision In The Long & Short-Termism Debate, Anne Tucker
20/20 Vision In The Long & Short-Termism Debate, Anne Tucker
Seattle University Law Review
What is an optimal investment time horizon—for institutions, individual shareholders and corporations? This question can evoke emotional, ideological, and theoretical responses. The answers usually deeply entrenched debates over the fundamental roles of markets versus regulation and between the appropriate loci of corporate power: the board of directors versus the shareholders. Too long-term and it is myopia; too near-term and is it short-termism. Neither label is inconsequential, so the debates are not tepid, academic, or marginal.
The Long And Short Of It: Are We Asking The Right Questions? Modern Portfolio Theory And Time Horizons, Jim Hawley, Jon Lukomnik
The Long And Short Of It: Are We Asking The Right Questions? Modern Portfolio Theory And Time Horizons, Jim Hawley, Jon Lukomnik
Seattle University Law Review
The heavy shadow of modern portfolio theory (MPT) has had a massive impact on everything from market structure, investment philosophy, and investor behavior, to the research that examines those disciplines. Researchers believe that they are casting light onto investment issues (including, for this purpose, specifically investor time horizons), but generalized acceptance of MPT allows it to continue to darken what should be enlightened.
How Commonsense Consumption Acts Are Preventing “Big Food” Litigation, Grace Thompson
How Commonsense Consumption Acts Are Preventing “Big Food” Litigation, Grace Thompson
Seattle University Law Review
This Note takes a critical look at Commonsense Consumption Acts and how they are detrimental to the possibility of “Big Food” litigation. The tobacco industry was held accountable through the effective use of tort litigation (commonly referred to as “Big Tobacco” litigation), and the food industry could theoretically be held similarly accountable, but CCAs are preventing the possibility of similar reform. Therefore, in order for health reform to be as effective as tobacco reform, CCAs must be repealed in the states where they exist. Part I of this Note discusses why the food industry needs tort reform. Specifically, it argues …
Corporate Governance As Privately-Ordered Public Policy: A Proposal, Lynn Stout, Sergio Gramitto
Corporate Governance As Privately-Ordered Public Policy: A Proposal, Lynn Stout, Sergio Gramitto
Seattle University Law Review
In this Article, we show how our society can use corporate governance shifts to address, if not entirely resolve, a number of currently pressing social and economic problems. These problems include: rising income inequality; demographic disparities in wealth and equity ownership; increasing poverty and income insecurity; a need for greater innovation and investment in solving problems like disease and climate change; the “externalization” of many costs of corporate activity onto third parties such as customers, employees, creditors, and the broader society; the corrosive influence of corporate money in politics; and discontent and loss of trust in the capitalist system among …
Brain Perspectives On Investor Behavior And Decision-Making Errors, Owen D. Jones
Brain Perspectives On Investor Behavior And Decision-Making Errors, Owen D. Jones
Seattle University Law Review
I want to start off with what I consider to be the statement of the problem. As I understand it, you’re concerned that the time horizons for maximizing the value of an investment vary among individuals in surprisingly wide, imperfectly predictable, and often seemingly irrational ways. And, if I understand your target here, the idea is that a deeper understanding of the causes of this variation might aid in the planning and design of legal and corporate policies. To jump into this, I’m going to give a little bit of an introduction about behavioral biases, and something that I’ve called …
Specificity And Time Horizons, Frank Partnoy
Specificity And Time Horizons, Frank Partnoy
Seattle University Law Review
This Essay argues that the short-termism debate would benefit from greater clarity and specificity regarding time horizons. I make four points. First, optimal time horizons vary in discernible ways. Second, the potential mismatch between actual and optimal time horizons should generate a range of responses. Third, investors and managers can discern and disclose estimates of actual and optimal time horizons (e.g., using categories such as preconscious, fast conscious, slow conscious, and discounting). Fourth, market participants, policy makers, and scholars should use such estimates to be more precise about time horizons. For example, critics of hedge fund activism could recognize that …
The Myth Of The Ideal Investor, Elisabeth De Fontenay
The Myth Of The Ideal Investor, Elisabeth De Fontenay
Seattle University Law Review
Critiques of specific investor behavior often assume an ideal investor against which all others should be compared. This ideal investor figures prominently in the heated debates over the impact of investor time horizons on firm value. In much of the commentary, the ideal is a longterm investor that actively monitors management, but the specifics are typically left vague. That is no coincidence. The various characteristics that we might wish for in such an investor cannot peacefully coexist in practice. If the ideal investor remains illusory, which of the real-world investor types should we champion instead? The answer, I argue, is …
Long-Term Executive Compensation As A Remedy For Corporate Short-Termism, Caroline Flammer
Long-Term Executive Compensation As A Remedy For Corporate Short-Termism, Caroline Flammer
Seattle University Law Review
It is often argued that corporations are too focused on the short term (i.e., they are “short-termist”). For example, during the 2016 U.S. presidential campaign, candidate Hillary Clinton urged companies to escape the tyranny of short-termism. Similarly, in the recent policy debate in the United Kingdom on the need to reform corporate governance and executive compensation, Bank of England’s Chief Economist Andy Haldane stated that “[e]xecutive pay is a matter of profound and legitimate public interest. Pay practices can encourage short-term behaviour in ways which harm both firms and the economy.” In this context, a recent article by Flammer and …
Federalism Of Personal Finance: State & Federal Retirement Plans, William A. Birdthistle
Federalism Of Personal Finance: State & Federal Retirement Plans, William A. Birdthistle
Seattle University Law Review
In this Article, I consider possible approaches that attempt to improve the plans through which millions of Americans tend to their life savings. I begin by considering the inadequacies of our current system of defined contribution accounts and then address two possible alternatives: the first being a federal account universally available to Americans based largely on the model of the Thrift Savings Plan; the second being a system of statebased retirement accounts like those that have already been developed in a handful of states. Though I conclude that a single, federal plan would be superior, either alternative approach would be …
Finding A Right To Abortion Coverage: The Ppaca, Intersectionality, And Positive Rights, Courtney Olson
Finding A Right To Abortion Coverage: The Ppaca, Intersectionality, And Positive Rights, Courtney Olson
Seattle University Law Review
During a floor debate in 1976, Representative Henry Hyde explained, “I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman. Unfortunately, the only vehicle available is the [Medicaid] bill.” For a short time after the Supreme Court of the United States established the right to abortion in Roe v. Wade, Medicaid did not distinguish between coverage for abortion and other medical services. That all changed when Congress passed the Hyde Amendment to the Medicaid Act in 1976. This Note will argue that a right to …
Are We Out Of The Woods Yet? Arctic Leasing Reform In The Trump Administration, Jonathan Schirmer
Are We Out Of The Woods Yet? Arctic Leasing Reform In The Trump Administration, Jonathan Schirmer
Seattle University Law Review
This Note examines the main statutes governing the Outer Continental Shelf (OCS) leasing process, including their interpretation by the courts. The interests of affected states and indigenous people, as well as how courts have minimized these voices will be explored, focusing on the state of Alaska. Finally, this Note argues for statutory reform as well as a change in the leasing process to increase state and indigenous participation.
An Identity Theory Of The Short- And Long-Term Investor Debate, Claire A. Hill
An Identity Theory Of The Short- And Long-Term Investor Debate, Claire A. Hill
Seattle University Law Review
Economics famously treats market actors as homogeneous. People are homo economicus, rational self-interested maximizers of their own utility. So far, so good, notwithstanding supposed behavioral “deviations” from rationality (more on those later). That people can view their own utility very differently from one another is recognized in theory, but not so much in practice. Also not sufficiently recognized is the extent to which people’s views of their own utility reflect their theories of who they are and how the world works, and that they hold such views and theories not just atomistically, but also collectively—that is, socially.
Institutional Investors, Corporate Governance, And Firm Value, K.J. Martijn Cremers, Simone M. Sepe
Institutional Investors, Corporate Governance, And Firm Value, K.J. Martijn Cremers, Simone M. Sepe
Seattle University Law Review
In the corporate governance debate, the short-term versus longterm contention has grown into perhaps today’s most controversial topic. In this debate, descriptions of institutional investors tend to present a dichotomic nature. These investors are alternatively portrayed as homogenously short-termist or as consistent “forces for good,” focused on targeting underperforming companies. This Article moves beyond this dichotomy. It shows empirically that aggregate institutional investor behavior presents nuances that depend on a variety of factors, including individual firm characteristics, institutional ownership levels, and institutional propensity toward activism.
Wrong-Termism, Right-Termism, And The Liability Structure Of Investor Time Horizons, Andrew Verstein
Wrong-Termism, Right-Termism, And The Liability Structure Of Investor Time Horizons, Andrew Verstein
Seattle University Law Review
Do investor time horizons lead to inefficient business conduct in the real economy? An extensive finance literature analyzes whether particular practices (e.g., high frequency trading and stock buybacks) lead firms to operate with inefficiently myopic investment horizons, and an extensive legal literature considers the appropriateness of policy interventions. This Article joins those debates by charting the space of possibilities: what might be the causes of problematic time horizons? What solutions are available? One implication of this analysis is that there may be unexplored market-based solutions located on the liability side of investors’ balance sheets. This Article also argues that we …
Flash Traders (Milliseconds) To Indexed Institutions (Centuries): The Challenges Of An Agency Theory Approach To Governance In The Era Of Diverse Investor Time Horizons, Harold Weston, Conrad Ciccotello
Flash Traders (Milliseconds) To Indexed Institutions (Centuries): The Challenges Of An Agency Theory Approach To Governance In The Era Of Diverse Investor Time Horizons, Harold Weston, Conrad Ciccotello
Seattle University Law Review
One aspect of the problem in trying to align a corporate investment horizon (the time period for return on investment) to that of its shareholders is the enormous range of investor time horizons, which can range from milliseconds to centuries. A second aspect of the problem is whether ownership of shares equates to ownership of the corporation. A third aspect of the problem is that, despite the theories and advocacy of shareholders being owners, based on the agency model of corporate finance first developed in the 1970s, the theory is contrary to corporate law. These three aspects will be developed …
Are Investor Time Horizons Shortening?, Rachelle Sampson, Yuan Shi
Are Investor Time Horizons Shortening?, Rachelle Sampson, Yuan Shi
Seattle University Law Review
The rise in quarterly capitalism in corporate America—increased pressure to meet quarterly earnings predictions and cater to shareholder preferences for short-term returns—has gained significant coverage in the business world and popular press in recent years. Increasingly, popular opinion suggests that firms bow to shareholder pressures, taking steps to smooth earnings and boost share prices in the short-term; firms do so by cutting Research and Development (R&D) investment, engaging in extensive cost-cutting, or increasing dividends and share buybacks. Recent estimates at the industry level show that investor discount rates have increased in recent years, supporting the notion that shorttermism is on …
Good Activist/Bad Activist: The Rise Of International Stewardship Codes, Jennifer G. Hill
Good Activist/Bad Activist: The Rise Of International Stewardship Codes, Jennifer G. Hill
Seattle University Law Review
Shareholder participation in corporate governance and investor activism are topics du jour in the United States and around the world. In the early part of the 20th century, Professors Berle and Means considered that shareholder participation was impossible in the transformed commercial world that they described in The Modern Corporation and Private Property. This was a world characterized by dispersed and vulnerable shareholders, in which owners do not manage, and managers do not own, the corporation. In such an environment, the goal of corporate law became one of protecting shareholder interests rather than providing shareholders with participation rights. The structure …
A Constitutional Critique On The Criminalization Of Panhandling In Washington State, Drew Sena
A Constitutional Critique On The Criminalization Of Panhandling In Washington State, Drew Sena
Seattle University Law Review
Individuals who have lost everything—their homes, jobs, and dignity—are often forced to live on the street. Those with no reasonable alternative can find themselves relying on the generosity of others just to survive. In response, citizens petition, legislatures enact, and officers enforce laws that criminalize signs of visible poverty. Municipalities have made considerable attempts to remove visible poverty from their cities by drafting legislation that disproportionately punishes people experiencing homelessness. This Note focuses on a particular subset of such legislation, laws that criminalize panhandling. Section I of this Note provides an overview of the First Amendment and the protection of …
Social Justice And The American Law School Today: Since We Are Made For Love, Michael Kaufman
Social Justice And The American Law School Today: Since We Are Made For Love, Michael Kaufman
Seattle University Law Review
This Article is intended to facilitate that new dialogue by finding a series of profound provocations in the Pope’s teachings. First, the Pope provokes us to consider whether our existing education and economic systems are based on an incomplete understanding of human nature.5 The first section contends that the understanding that human beings are by nature competitive and consumptive wealth maximizers is not only contrary to the Pope’s teachings but also contrary to the latest research in the fields of neuroscience, neuro-psychology, cognitive psychology, educational psychology, economics, and behavioral economics. Second, the Pope provokes us to consider whether our existing …