Opening Remarks,
2010
Seattle University School of Law
Opening Remarks, Chancellor William B. Chandler Iii
Seattle University Law Review
Law is, in many ways, a backwards-looking field. We litigate over facts that have already occurred, challenge deals that have already been signed, and apply rules of decision based on previously-established precedent or statutes already enacted. To the extent that this Center and the symposium reflect on Berle’s work, they too are an exercise in looking back. Indeed, some might say the establishment of a Center named in Berle’s honor is a monument to the past.
Revisiting Berle And Rethinking The Corporate Structure,
2010
Seattle University School of Law
Revisiting Berle And Rethinking The Corporate Structure, Kelli A. Alces
Seattle University Law Review
Adolf Berle and Gardiner Means painted what remains a defining portrait of corporate law. The separation of ownership and control they described and the agency costs it causes are still a central concern of the law of corporate governance. For that reason, Berle’s work is relevant nearly eighty years after its publication. Seemingly forgotten, however, is that Berle’s enduring description of the corporate structure was published before most of today’s corporate law was in place. His work preceded the Securities Act of 1933 and the Securities Exchange Act of 1934 and even preceded the dominance of Delaware common law in …
Power Without Property, Still: Unger, Berle, And The Derivatives Revolution,
2010
Seattle University School of Law
Power Without Property, Still: Unger, Berle, And The Derivatives Revolution, Cristie Ford, Carol Liao
Seattle University Law Review
We are in a time when the notion of property is in flux. The derivatives revolution has shattered the “atom of property” well beyond what was originally imagined in 1932 by Adolf Berle and Gardiner Means. This disaggregation has had fascinating, and often adverse, effects on corporate law and securities regulation. Moreover, the phenomenon has had the unexpected effect of permitting some parties that already possess considerable social, economic, and political power to accumulate even more.
The New Financial Assets: Separating Ownership From Control,
2010
Seattle University School of Law
The New Financial Assets: Separating Ownership From Control, Tamar Frankel
Seattle University Law Review
In The Modern Corporation and Private Property, Adolf A. Berle and Gardiner Means wrote about the separation of ownership from control in corporations. They noted that the interests of the controlling directors and managers can diverge from those of the shareholder owners of the firm. . . . There are those who consider such a decoupling beneficial. Others express the same concern that Berle and Means have expressed. And depending on what one focuses on in viewing the pluses and minuses of these separations, one could reach different conclusions. I reach a number of conclusions. First, the separation of …
Then And Now: Professor Berle And The Unpredictable Shareholder,
2010
Seattle University School of Law
Then And Now: Professor Berle And The Unpredictable Shareholder, Jennifer G. Hill
Seattle University Law Review
Shareholders, and the relationship between shareholders and management, lay at the heart of Professor Berle’s scholarship. The goal of this Article is to compare the image of shareholders emerging from The Modern Corporation and Private Property and the Berle/Dodd debate with a range of contemporary visions of the shareholder that underpin some international regulatory responses to recent financial debacles, from Enron to the current global financial crisis. As the Article dis- cusses, these recent developments in the era of financial crises have prompted a reevaluation of the traditional image of the shareholder—and the role of the shareholder in the modern …
Berle And The Entrepreneur,
2010
Seattle University School of Law
Berle And The Entrepreneur, Charles R.T. O'Kelley
Seattle University Law Review
In the first and last four chapters (“the Five Chapters”) of The Modern Corporation and Private Property, Adolf Berle, Jr. describes in sweeping terms a fundamental transformation of the American economy. . . . Writing more than ten years before Berle, another seminal scholar, Frank Knight . . . developed a theory of the entrepreneur as part of his larger effort to more carefully explain the theoretical underpinnings of a free-market economy. . . . Given Knight’s prominence and the fact that Knight apparently reached dramatically different conclusions than did Berle concerning the consequences flowing from separation of ownership …
The Birth Of Corporate Governance,
2010
Seattle University School of Law
The Birth Of Corporate Governance, Harwell Wells
Seattle University Law Review
Part I of this Article briefly examines the concept of “corporate governance” and argues for dating the concept’s origins to the debates of the 1920s. Part II then moves on to examine early scholarly and popular discussions of the separation of ownership and control. After surveying the historical developments that produced the recognizably modern corporate economy around the turn of the century, it examines early scholarly and popular discussions of the separation of ownership and control, focusing on three major thinkers, Louis D. Brandeis, Walter Lippmann, and Thorstein Veblen. It argues that, while each of these authors examined the separation …
Too Big To Fail?: Recasting The Financial Safety Net,
2010
Duke Law School
Too Big To Fail?: Recasting The Financial Safety Net, Steven L. Schwarcz
Faculty Scholarship
Government safety nets in the United States and abroad focus, anachronistically, on problems of banks and other financial institutions, largely ignoring financial markets which have become major credit sources for consumers and companies. Besides failing to protect these markets, this narrow focus encourages morally hazardous behavior by large institutions, like AIG and Citigroup, that are "too big to fail." This paper examines how a safety net should be recast to protect financial markets and also explains why that safety net would mitigate moral hazard and help resolve the too-big-to-fail dilemma.
Did We Tame The Beast: Views On The Us Financial Reform Bill,
2010
Duke Law School
Did We Tame The Beast: Views On The Us Financial Reform Bill, Lawrence G. Baxter
Faculty Scholarship
Prof. Lawrence Baxter takes a microscope to the ‘Dodd-Frank’ Bill (Dodd-Frank Wall Street Reform and Consumer Protection Act, H.R. 4173) finding a veritable ’Micrographia’ of doubt. The Bill was devised to address problems associated with the global financial crisis of 2007-2009. This paper was written in anticipation of the US Financial Reform Bill’s passage through Congress. The legislation has since been enacted as Public Law No. 111-203, signed by President Obama on July 21, 2010.
The Market Reaction To Legal Shocks And Their Antidotes: Lessons From The Sovereign Debt Market,
2010
Duke Law School
The Market Reaction To Legal Shocks And Their Antidotes: Lessons From The Sovereign Debt Market, Michael Bradley, James D. Cox, Mitu Gulati
Faculty Scholarship
In October 2000 a hedge fund holding an unpaid debt claim won an enormous victory against the debtor, the Republic of Peru, through an opportunistic interpretation of the common pari passu clause by a Brussels court. This development was met by charges from policy makers and practitioners that the court's decision (its novel interpretation of the pari passu clause) would lead to a dramatic increase in the risks of holdout litigation faced by sovereign debtors. Over the ensuing years, multiple reform solutions were proposed including the revision of certain contractual terms, the filing of amicus briefs in a key case, …
Voting Power Without Responsibility Or Risk: How Should Proxy Reform Address The Decoupling Of Economic And Voting Rights,
2010
Villanova University Charles Widger School of Law
Voting Power Without Responsibility Or Risk: How Should Proxy Reform Address The Decoupling Of Economic And Voting Rights, Roberta S. Karmel
Villanova Law Review (1956 - )
No abstract provided.
Four Challenges To Financial Regulatory Reform,
2010
Villanova University Charles Widger School of Law
Four Challenges To Financial Regulatory Reform, Eric J. Pan
Villanova Law Review (1956 - )
The article discusses the challenges that should be addressed in a successful financial regulatory reform. These challenges include the structuring of regulatory systems, separation of prudential supervision and consumer protection regulation, the entity responsible for monitoring and managing systemic risk, and the supervision of cross-border financial services and transactions. The reform proposals considered by Great Britain, the U.S., and European Union are analyzed.
A Brief History Of Banking And Investment Regulation In The Us And A Challenge To Remain The Greatest Nation In The World,
2010
O'Melveny and Myers, LLP
A Brief History Of Banking And Investment Regulation In The Us And A Challenge To Remain The Greatest Nation In The World, William T. Coleman Jr.
Kentucky Law Journal
No abstract provided.
The Consumer Financial Protection Agency: Love It Or Hate It, U.S. Financial Regulation Needs It,
2010
Villanova University Charles Widger School of Law
The Consumer Financial Protection Agency: Love It Or Hate It, U.S. Financial Regulation Needs It, Ann Graham
Villanova Law Review (1956 - )
The article discusses The Consumer Financial Protection Agency Act of 2009, a legislation filed in the U.S. House of Representatives on July 9, 2009. The U.S. House of Representatives passed The Wall Street Reform and Consumer Protection Act on December 11, 2009, which contained The Consumer Financial Protection Agency Act in Title IV. The American Bankers Association, Financial Services Roundtable, and Independent Community Bankers of America have opposed the creation of the Consumer Financial Protection Agency.
A Comparison Of The Handling Of The Financial Crisis In The United States, The United Kingdom, And Australia,
2010
Villanova University Charles Widger School of Law
A Comparison Of The Handling Of The Financial Crisis In The United States, The United Kingdom, And Australia, Elizabeth F. Brown
Villanova Law Review (1956 - )
The article discusses how the U.S., Great Britain and Australia handled the financial crisis, as of July 2010. It analyzes the reasons why Australia was less affected by the crisis than the U.S. and Great Britain. The author suggests that the U.S. would perform well to adopt a Twin Peaks Model which creates two agencies that regulate a broad range of financial entities but focus on narrow goals.
Things Happen,
2010
Villanova University Charles Widger School of Law
Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership,
2010
Villanova University Charles Widger School of Law
Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan Mcleod Heminway
Villanova Law Review (1956 - )
The article discusses the lessons learned from the restructuring of the U.S. Securities and Exchange Commission (SEC) under the Sarbanes-Oxley Act. The strengths and weakness of the SEC reform measures are highlighted. Key reform proposals stemming from the global financial crisis and reform efforts being undertaken as of the spring of 2010 include overhauling or abolishing the SEC, managing the SEC through the Federal Reserve or the Department of the Treasury, and combining the SEC with the Commodity Futures Trading Commission (CFTC).
Fiduciary Obligations Of Broker-Dealers And Investment Advisers,
2010
Villanova University Charles Widger School of Law
Fiduciary Obligations Of Broker-Dealers And Investment Advisers, Arthur B. Laby
Villanova Law Review (1956 - )
The article discusses fiduciary obligation that broker-dealers and investment advisers owe their clients. It addresses questions in ascertaining whether financial reform is needed. The fiduciary obligations imposed on brokers and advisers are examined. An analysis of whether fiduciary duties should be imposed on brokers providing advice is offered.
Moving Beyond The Clamor For Hedge Fund Regulation: A Reconsideration Of Client Under The Investment Advisers Act Of 1940,
2010
Villanova University Charles Widger School of Law
Moving Beyond The Clamor For Hedge Fund Regulation: A Reconsideration Of Client Under The Investment Advisers Act Of 1940, Anita K. Krug
Villanova Law Review (1956 - )
The article argues that a better approach for hedge fund regulation in the U.S. would be for law to regard private fund investors as clients of the managers of those funds. It discusses the regulatory regime governing investment advisers. The Investment Advisers Act of 1940 is tasked to regulate investment advisers and to require some investment advisers to be registered with the Securities and Exchange Commission (SEC).
The Role Of Trust In Financial Regulation,
2010
Villanova University Charles Widger School of Law
The Role Of Trust In Financial Regulation, Ronald J. Colombo
Villanova Law Review (1956 - )
The article discusses the significance of trust in the U.S. financial regulation. Trust is reportedly important because transaction costs become high in the absence of trust and relationships characterized by trust provide greater opportunities for mutually beneficial exchange. Trust is defined as the willingness to make an individual vulnerable to another. The general regulatory approach to banking, insurance, and securities regulation in the U.S. is discussed.
