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Table Of Contents, Seattle University Law Review

Seattle University Law Review

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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 …

“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 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 …

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 …

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.

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

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 …

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 …

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 …

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 …

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 …

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 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.

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

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 …

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 …

“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 …

The Anonymity Heuristic: How Surnames Stop Identifying People When They Become Trademarks, Russell W. Jacobs

Dickinson Law Review (2017-Present)

This Article explores the following question central to trademark law: if a homograph has both a surname and a trademark interpretation will consumers consider those interpretations as intrinsically overlapping or the surname and trademark as completely separate and unrelated words? While trademark jurisprudence typically has approached this question from a legal perspective or with assumptions about consumer behavior, this Article builds on the Law and Behavioral Science approach to legal scholarship by drawing from the fields of psychology, linguistics, economics, anthropology, sociology, and marketing.

The Article concludes that consumers will regard the two interpretations as separate and unrelated, processing surname …

Peacekeeping Operations In West Africa: Mechanisms Of Cooperation Between The United Nations And Ecowas With The Case Studies Concerning The Crises In Liberia And The Gambia, Serigne Cheikh Modou Kara Cisse

Dissertations and Theses

The African continent has significantly suffered from a great number of civil wars and armed conflicts since the beginning of the independence era in late 1960s. On May 28, 1975, the creation of a regional The African continent has significantly suffered from a great number of civil wars and armed conflicts since organization in West Africa called the Economic Community of West Africa States (ECOWAS) took place. The intent was to achieve "collective self-sufficiency" for its member states by building a full economic and trading union. In the late 1990s, the maintenance of peace and security in the region was …

The Inaugural Brooklyn Lecture On International Business Law: “Isds: The Wild, Wild West Of International Practice”, George Kahale Iii

Brooklyn Journal of International Law

The lecture was delivered on April 3, 2018 at Brooklyn Law School and was sponsored by the Dennis J. Block Center for the Study of International Business Law and the Brooklyn Journal of International Law.

Rethinking Isds, George Kahale Iii

Brooklyn Journal of International Law

The author is Chairman of Curtis, Mallet-Prevost, Colt & Mosle LLP and has acted as lead counsel for respondent states in many investor-state arbitrations, including several of the cases referred to herein. His article won the 2019 Burton Award for Distinguished Legal Writing.

Against Aviation Orthodoxy: India's Foreign Investment Regime For The Airline Industry, Jae Woon Lee, Umakanth Varottil

Brooklyn Journal of International Law

The foreign investment regime governing the airline industry has been the subject matter of considerable debate. Our goal in this article is to supplement the literature by embarking on an analysis of the foreign investment regime in India and to cautiously suggest that India’s new regulatory reforms could be a harbinger for other states. A study of the foreign investment regime in the airline industry in India is both interesting and timely, for at least two reasons. First, India has nearly everything that bodes well for the growth of an aviation market, and it is one of the fastest growing …

Hubungan Hukum Pedagang Perantara Dan Pelaku Usaha Dalam Bisnis Perikanan Nasional, Nur Sulistyo Budi Ambarini, Tito Sofyan, Edra Satmaidi

Jurnal Hukum & Pembangunan

This paper is part of non-doctrinal legal research using socio-legal research approach. The role of intermediary traders in the fishing business is very important. One side as an intermediary and on the other hand provides capital to fishermen and / or fish processors. The relationship creates an imbalance seen from the perspective of contract law because the position of intermediary traders as the owner of capital is stronger, so the balance principle among the parties can not met. In practice from the perspective of local law it is not an imbalance because the contribution of intermediary traders is not only …

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social …

Could The Pay Ratio Disclosure Backfire? Examining The Effects Of The Sec's Pay Ratio Disclosure Rule, Jillian Loh

Texas A&M Law Review

At the signing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), President Barack Obama asserted that, “We all win when investors around the world have confidence in our markets. We all win when shareholders have more power and more information. . . . And we all win when folks are rewarded based on how well they perform, not how well they evade accountability.” After the financial crisis in 2008, the Obama Administration recognized the need to reconstruct the existing American financial regulatory system to ensure that a financial meltdown would never happen again. It …

The Limits Of Performance-Based Regulation, Cary Coglianese

University of Michigan Journal of Law Reform

Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

Faculty Scholarship

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems, exemplified by Articles 3 and 4 of the Uniform Commercial …

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

Catholic University Law Review

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