Business Organizations Law Commons^™

Tackling Vulnerabilities Through Corporate Duties, Jingchen Zhao

Catholic University Law Review

In this article, and drawing on the work of Fineman and others, we use a vulnerability lens as a device to emphasize the protection that could be offered to vulnerable parties in corporations through directors’ duties. By situating corporations in the vulnerability paradigm, we will discuss the limitations of formal equality and clarify the role played by corporate law. The increasingly blurred distinction between private law and public law will be discussed to rationalize the protection of the vulnerable through collective responsibility. Vulnerability theory mediates conflicts between calls for “regulatory state policies” and “individual responsibility” to supervise and monitor corporate …

Public Law 86-272 And The Texas Margin Tax, Marvin J. Williams

St. Mary's Law Journal

No abstract provided.

From Alpha To Omegle: A.M. V. Omegle And The Shift Towards Product Liability For Harm Incurred Online, Preston Buchanan

University of Miami Business Law Review

But for the Internet, many of our interactions with others would be impossible. From socializing to shopping, and, increasingly, working and attending class, the Internet greatly facilitates the ease of our daily lives. However, we frequently neglect to consider that our conduits to the Internet have the potential to lead to harm and injury. When the Internet was in its infancy, and primarily was a repository of information, Congress recognized the threat of continual lawsuits against online entities stemming from the content created by their users. The Communications Decency Act of 1996 arose to mitigate the seemingly Herculean task for …

Piercing The Shield Of U.C.C. Article 4a: Estate Of Levin V. Wells Fargo Bank’S, Implications For Terrorism Victims’ Attachment Of Blocked Electronic Wire Transfers Originating From State Sponsors Of Terrorism, Olivia Lu

University of Miami Business Law Review

This Piece examines how ambiguity in the property interests that would be subject to attachment under section 201 of the Terrorism Risk Insurance Act (“TRIA”) and section 1610(g) of the Foreign Sovereign Immunities Act (“FSIA”) has affected efforts by victims of terrorism to fulfill their monetary judgments, especially in light of courts’ use of Article 4A of the Uniform Commercial Code to fill the definitional gap. This Piece focuses on a recent D.C. Circuit decision, Estate of Levin v. Wells Fargo Bank, N.A., analyzing its implications for terrorism victims holding monetary judgments to attach blocked electronic funds transfers (“EFTs”) originating …

College Athlete Employment Model: An “Amateur” Attempt To Resolve The Exploitation Created By The Ncaa, Ryan Brida

University of Miami Business Law Review

The college sports industry is deeply rooted within the culture of the United States. Its popularity has only grown, which has led to business opportunities and vast economic wealth for many within the National Collegiate Athletic Association (“NCAA”). This wealth is mainly distributed among, but not limited to, NCAA executives, conference commissioners, university presidents, coaches, and athletic directors. The individuals actually taking part in the athletic contests, the college athletes, are excluded from this list. Specifically, looking at Division I college athletes, the harsh reality is that these young men and women are participating in a billion-dollar industry and not …

The Acquisition Of Twitter: The Legal Interplay Between Elon Musk, Shareholders, Employees, And The Government, Florence Shu-Blankson

University of Miami Business Law Review

This article examines the acquisition process of Twitter by Elon Musk. It will analyze the legal validity of Musk’s initial claims for rescinding his offer, as well as Twitter’s defense arguments. It will consider questions such as: Did Twitter cause a material adverse effect to its operations that would be a basis for Musk to avoid the deal? Did Musk run afoul of any regulatory requirements under the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) regulations? What impact did the ultimate sale of Twitter have on other stakeholders, such as corporate executives and non-executives, shareholders, employees. The …

Virtual Stardom: The Case For Protecting The Intellectual Property Rights Of Digital Celebrities As Software, Alexander Plansky

University of Miami Business Law Review

For the past several decades, technology has allowed us to create digital human beings that both resemble actual celebrities (living or deceased) or entirely virtual personalities from scratch. In the near future, this technology is expected to become even more advanced and widespread to the point where there may be entirely virtual celebrities who are just as popular as their flesh-and-blood counterparts—if not more so. This raises intellectual property questions of how these near-future digital actors and musicians should be classified, and who will receive the proceeds from their performances and appearances. Since, in the near-term, these entities will probably …

Corporations As International Economic Law Actors, Barnali Choudhury

All Papers

Actors in international law are presumed to be states. Yet in the international economic law arena, the corporation is one of the most prominent non-state actors. Indeed, in some instances, the corporation may even be more influential than the state in some arenas of international economic law. This short piece examines three instances of this influence. First, it looks at the role of corporations in law-making; second, it examines corporations’ role in monitoring and compliance; and, third, it explores corporations’ legal personality in international economic law. Finding corporations’ immense influence on law-making and monitoring and compliance, combined with a robust …

Enforcing International Human Rights Law Against Corporations, Barnali Choudhury

All Papers

International human rights law is generally thought to apply directly to states, not to corporations since the latter is not a subject of international law. Some domestic courts are, however, enforcing these norms against corporations in domestic settings. Canadian courts have, for instance, recognized that corporations can be liable for breach of customary international law norms while UK courts have enforced international human rights norms indirectly against corporations relying on a combination of domestic corporate and tort law.

At the same time, some states are choosing to enforce international human rights norms against corporations using regulatory initiatives. These initiatives, known …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Scholarly Articles

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Leveraging Information Forcing In Good Faith, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

Leveraging Information Forcing in Good Faith, a chapter in Research Handbook on Law and Time, argues that the information-forcing-substance theory has a significant role to play both in how courts decide duty of good faith and oversight matters and in how active and engaged directors can add value in the boardroom. As explored in the chapter, by deploying the theory in corporate-law matters, the courts can reveal the information gaps between officers and directors and create pressure for better processes and discourse within the corporation. In turn, this can impact both the way in which fiduciaries interact with …

Franchising Law In The United States Between Theory And Practice: Heads Up For Foreign Investors, Radwa Elsaman

Touro Law Review

As a dynamic vehicle for fostering investment opportunities, both domestically and internationally, franchising spans a diverse array of industrial sectors, encompassing both goods and services. The United States plays a highly influential role in global franchise industry promotion, with a vast majority of International Franchise Association members representing American companies. Present data underscores that franchising has extended its reach to virtually every sector of the American economy. Notably, the United States stands among just four common law nations that have established dedicated franchise legislation, operating at both state and federal levels. This framework includes provisions for pre-sale disclosure, registration of …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …