Secured Transactions Commons^™

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

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

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

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

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

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

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

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

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

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 …

The Value Of Uncertainty, Cathy Hwang, Benjamin P. Edwards

Faculty Scholarship

No abstract provided.

Law And Development In West And Central Africa (Ohada), Peter Winship

Faculty Journal Articles and Book Chapters

This seminar paper considers whether OHADA - an experiment in unifying business law in African countries - has been a success. Following a prologue that explains the origins of the paper, the first part of the paper sets out basic information about the Organisation pour l’Harmonisation du Droit des Affaires en Afrique (“Organization for the Harmonization of Business Law in Africa,” known by the acronym OHADA). This part is followed by a review of law and development literature to assess the value of this literature for an evaluation of the success (or not) of OHADA. A third part then focuses …

The Intersection Between Ucc Article 9 And Intellectual Property: The Need For A National, Centralized Filing System For Ip, 15 J. Marshall Rev. Intell. Prop. L. 83 (2015), Willa Gibson

UIC Review of Intellectual Property Law

Intellectual property has emerged as a commercially valuable and dominant asset to our economy promoting innovative technological developments that have and continue to stimulate economic growth promoting our free-enterprise, market-based system. Secured transactions involving intellectual property also promotes and stimulates our economic growth. Such transactions provide innovators with much needed capital to design, develop, and market their intellectual property. Despite the economic benefits derived from secured financing involving such property, legal uncertainty exists whether federal or state law governs how to perfect best security interests in intellectual property. Having a perfected security interest in collateral puts a lender in its …

The Responsible Investor’S Guide To Climate Change, Jeffrey D. Sachs, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Around the world, institutional investors – including pension funds, insurance companies, philanthropic endowments, and universities – are grappling with the question of whether to divest from oil, gas, and coal companies. The reason, of course, is climate change: unless fossil-fuel consumption is cut sharply – and phased out entirely by around 2070, in favor of zero-carbon energy such as solar power – the world will suffer unacceptable risks from human-induced global warming. How should responsible investors behave in the face of these unprecedented risks?

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

The Intersection Between Ucc Article 9 And Intellectual Property: The Need For A National, Centralized Filing System For Ip, Willa E. Gibson

Akron Law Faculty Publications

Intellectual property has emerged as a commercially valuable and dominant asset to our economy promoting innovative technological developments that have and continue to stimulate economic growth promoting our free-enterprise, market-based system. Secured transactions involving intellectual property also promotes and stimulates our economic growth. Such transactions provide innovators with much needed capital to design, develop, and market their intellectual property. Despite the economic benefits derived from secured financing involving such property, legal uncertainty exists whether federal or state law governs how to perfect best security interests in intellectual property. Having a perfected security interest in collateral puts a lender in its …

The Value Of Public-Notice Filing Under Uniform Commercial Code Article 9: A Comparison With The German Legal System Of Securities In Personal Property, Jens Hausmann Dr.

Georgia Journal of International & Comparative Law

No abstract provided.

Secured Credit And Insolvency Law In Argentina And The U.S.: Gaining Insight From A Comparative Perspective, Guillermo A. Moglia Claps, Julian B. Mcdonnell

Georgia Journal of International & Comparative Law

No abstract provided.

Nevada's Foreclosure Epidemic: Homeowner Associations' Super-Priority Liens Not So "Super" For Some, Kylee Gloeckner

Nevada Law Journal

No abstract provided.

The Perils Of Primacy: Successor Liability For Lenders Turned Declarants In Louisiana Common Interest Communities, Christopher K. Odinet

Faculty Scholarship

In surveying the landscape of contemporary American real estate, it is increasingly difficult — if not impossible — to find a development that is not part of a common-interest community. Whether one is strolling through the avenues of a mixed-use commercial development or driving down the manicured tree-lined streets in a residential neighborhood, a complex and detailed legal regime underpins these developments in order to ensure that the order, quality, and aesthetic of the project is ensured and maintained from its earliest days and long into its future.

Since its inception in the early 1900s, the complexity of common interest …

Putting The “Uniform” Back In The Securities Litigation Uniform Standards Act Of 1998: The Case For Employing A Reasonable Relationship Approach, Christopher R. Bellacicco

Catholic University Law Review

No abstract provided.

Conflating Politics And Development? Examining Investment Treaty Arbitration Outcomes, Susan Franck

Scholarly Articles in Law Reviews & Journals

International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal …

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

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

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 …

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

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

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 …

Turning Restitution Upside-Down: The Mortgage Fraud Restitution Formula Amidst Volatile Housing Prices, Nicole Scott

Nevada Law Journal

No abstract provided.