Organizations Law Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Jpmorgan Chase London Whale A: Risky Business, Arwin G. Zeissler, Daisuke Ikeda, Andrew Metrick

Journal of Financial Crises

In December 2011, the Chief Executive Officer and Chief Financial Officer of JPMorgan Chase (JPM) instructed the bank’s Chief Investment Office to reduce the size of its Synthetic Credit Portfolio (SCP) during 2012, so that JPM could decrease its RiskWeighted Assets as the bank prepared to adopt the impending Basel III bank capital regulations. However, the SCP traders were also told to minimize the trading costs incurred to reduce Risk-Weighted Assets, while still maintaining the opportunity to profit from unexpected corporate bankruptcies. In an attempt to balance these competing objectives, head SCP derivatives trader Bruno Iksil suggested in January 2012 …

Activist Shareholders At De Facto Controlled Companies, Gaia Balp

Brooklyn Journal of Corporate, Financial & Commercial Law

Activist campaigns are likely to increasingly target controlled companies. Studies concerning activism at controlled companies focus on shareholder-empowering tools, such as the right to nominate and elect minority directors on the board, as a pathway for limiting the principal-principal agency problem. However, not enough attention has been paid to the distinction between de jure and de facto controlled companies. Building on a recent case concerning a leading Italian corporation, this Article analyzes the possible unexpected corporate governance consequences of successful activist intervention at de facto controlled companies, showing that, where minority shareholders are granted the right to appoint directors on …

Reputation As A Disciplinarian Of International Organizations, Kristina Daugirdas

Articles

As a disciplinarian of international organizations, reputation has serious shortcomings. Even though international organizations have strong incentives to maintain a good reputation, reputational concerns will sometimes fail to spur preventive or corrective action. Organizations have multiple audiences, so efforts to preserve a “good” reputation may pull organizations in many different directions, and steps taken to preserve a good reputation will not always be salutary. Recent incidents of sexual violence by UN peacekeepers in the Central African Republic illustrate these points.

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.

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 …

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 …

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 …

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 …

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.

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 …

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 …

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

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

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

Seattle University Law Review

No abstract provided.

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

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

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

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

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

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

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.

Regulating Offshore Finance, William J. Moon

Faculty Scholarship

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic …

The Legal Architecture Of United Nations Peacekeeping: A Case Study Of Unifil, Layan Charara

Michigan Journal of International Law

This Note explores the ways UNIFIL is a unique peacekeeping force that can still teach broader lessons about UN peacekeeping It is organized into four parts: Part I provides a contour of UN peacekeeping operations; Part II chronicles the history of UNIFIL; Part III analyzes the current legal regime with respect to UN peacekeeping; and Part IV surveys solutions offered in the past and recommends more apposite courses of action to strengthen the legal recourse available to peacekeepers and their families.

Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Religious organizations enjoy many of the same benefits that other non-profit organizations do. Churches, temples and mosques, for example, generally are exempt from local real estate taxes. Economically speaking, a tax exemption has the same effect as a subsidy; freedom from tax liability means that the organization can devote its financial resources to other activities. But where an exemption afforded to a religious employee is broader than the equivalent exemption available to a secular employee, a significant Establishment Clause concern is raised. The parsonage exemption of Internal Revenue Code Section 107 presents such an issue: ministers are permitted to exclude …

Dr. Tele-Corporation: Bridging The Access-To-Care Gap, Nader Amer

Dickinson Law Review (2017-Present)

The United States is currently confronting an access-to-healthcare crisis, which rural regions are experiencing at a disproportionate rate. Many commentators have touted telemedicine as a solution for the access-to-care issue. Telemedicine uses video and telecommunication technology to allow physicians to treat patients from distant locations and thus facilitates a more equal distribution of physicians throughout the United States.

Although the telemedicine industry is quickly growing, the corporate practice of medicine doctrine impedes the industry’s expansion and consequently obstructs a viable solution to the access-to-care crisis. Generally, the corporate practice of medicine doctrine prohibits corporations and limited liability companies from employing …

Crafting Fee-Shifting Policy, Benjamin P. Edwards

Scholarly Works

The controversy over emerging fee-shifting corporate bylaw and charter provisions presents multiple policy choices. Delaware’s decision to ban the provisions offers an opportunity for: (i) states to offer a meaningful alternative to Delaware; and (ii) the generation of useful information for evaluating whether particular bylaws or charter provisions enhance shareholder wealth.

International Civil Individual Responsibility And The Security Council: Building The Foundations Of A General Regime, Vincent-Joël Proulx

Michigan Journal of International Law

This Article focuses on a few tools at the disposal of the United Nations Security Council (“UNSC”) to enhance individual (read: civil) responsibility concerning nonstate terrorist actors with a view to opening other avenues of inquiry regarding other subversive nonstate actors (“NSAs”), for instance in the areas of transnational torts, human rights (“HR”) violations, and environmental damage caused by business entities. As discussed in Part V, recent developments surrounding the application of the Alien Tort Claims Act (“ATCA”) in the United States and the prospect of establishing a basis for universal civil jurisdiction further signal that no such solid basis …

Bias In The Boardroom: Implicit Bias In The Selection And Treatment Of Women Directors

Marquette Law Review

In light of the stagnation in growth of women directors on corporate boards, board diversity advocates and corporate leaders should look to the role implicit gender bias plays in the board nomination process and in challenges women directors face while serving on boards. Relevant stakeholders often overlook how implicit bias barriers prevent women from reaching the boardroom and persist as obstacles once women directors have earned their seats on the board. Incorporating social psychological research on implicit bias and recognized strategies to work around bias, such as objective assessments and guidelines, data analytics, and accountability mechanisms, this Article encourages companies …