Business Organizations Law Commons^™

The Specter Of The Giant Three, Lucian Bebchuk, Scott Hirst

Faculty Scholarship

This Article examines the large, steady, and continuing growth of the Big Three index fund managers — BlackRock, Vanguard, and State Street Global Advisors. We show that there is a real prospect that index funds will continue to grow, and that voting in most significant public companies will come to be dominated by the future “Giant Three.”
/="/">
/="/">We begin by analyzing the drivers of the rise of the Big Three, including the structural factors that are leading to the heavy concentration of the index funds sector. We then provide empirical evidence about the past growth and current status …

Proxy Voting Reform: What Is On The Agenda, What Is Not On The Agenda, And Why It Matters For Asset Owners., Cynthia A. Williams

Articles by Maurer Faculty

Investor proxy voting practices have entered the public spotlight again in 2018 as Congress and the Securities and Exchange Commission ("SEC") consider changes to the rules which govern proxy voting and regulation of proxy advisors. The focus has largely been on companies 'frustration with an asserted out-sized influence of proxy advisory firms and the corporate community's long standing pushback to shareholder proposals, especially those dealing with environmental, social, and governance ("ESG') issues. However, an accurate recognition of the longstanding principles which underlie institutional investors 'fiduciary duties and provide the legal context for the exercise ofproxy voting rights has been largely …

Transnational Business Governance Interactions, Regulatory Quality And Marginalized Actors: An Introduction, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott

All Faculty Publications

In what circumstances can transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—be harnessed to enhance the quality of transnational regulation and advance the interests of marginalized actors? This chapter introduces the concept of transnational business governance interactions (TBGIs), summarizes the TBGI analytical framework and defines regulatory quality and marginalized actors. It proposes to investigate the relationship between TBGIs, regulatory quality and marginalized actors at three levels: regulatory capacities, outputs and outcomes. The chapter presents the plan of the book and summarizes the key messages …

Let’S Shake On It: Perceived Pre-Contractual Risk In Cross-Border Investment, Kevin J. Fandl Jd, Phd

University of Miami Business Law Review

This article asks whether a legal system that provides protection for commitments made prior to contract formation is more or less conducive to risk-taking by foreign investors than a legal system that does not. I surmise that increased levels of protection for precontractual commitments establish an environment more hospitable to new business development, giving potential entrepreneurs added security in their ventures. And I further surmise that different legal traditions provide different levels of protection for these pre-contractual commitments.

To better understand the risks faced by cross-border business investors, this article describes the key distinctions between legal systems that create potential …

Data First, Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 2), Richard Thompson Ainsworth

Faculty Scholarship

This is the second in a four-part series addressing VAT/GST avoidance schemes involving remote sales of services. These schemes have been growing in importance. The IMF reports that the services component of cross-border trade has been on the rise for fifty-years or more, making the Internet a serious threat to revenue. Technology has accelerated tax avoidance.

Statutory draftsmen in New Zealand have looked at this problem directly with what has been called the Netflix Tax. Technologist in Fiji have been struggling with similar problems and have developed technology-based security systems that would seem to address remote sales of services more …

Loyalty Loses Ground To Market Freedom In The U.S. Supreme Court, Daniel Harris

William & Mary Business Law Review

In the last decade, the U.S. Supreme Court has taken a much less moralistic and much more market-oriented approach to questions of fiduciary loyalty. In cases involving fiduciaries with conflicts of interest, the Court has shifted the burden of proof to the party claiming unfair treatment, thereby protecting deals and making loyalty harder to enforce. The Court has also struck down or narrowly construed laws designed to prevent disloyalty by fiduciaries on the theory that broad prohibitions on business conduct encroach on constitutionally protected freedoms.

This Article discusses how the Supreme Court’s new approach represents a departure from the Court’s …

Criminal Trade Secret Theft Cases Against Judgment Proof Defendants In Texas And California, Michelle Evans, Kurt M. Saunders

William & Mary Business Law Review

Trade secret theft is a costly and ongoing risk to many businesses. As the two most populous states, California and Texas are home to numerous businesses that own trade secrets. Although civil remedies afford one source of relief when a trade secret has been stolen or disclosed, collecting on a judgment may be impossible due to the Homestead laws in both states, which effectively render the defendants judgment proof. In such cases, another alternative is to consider a criminal prosecution under the Federal Economic Espionage Act or state law. The same misconduct that results in civil liability can also violate …

Government Ownership Of Banks: A Curse Or A Blessing For The United States?, Yueh-Ping (Alex) Yang

William & Mary Business Law Review

During the Financial Crisis of 2007–2008, the Treasury injected an enormous amount of capital and held equity in 707 financial institutions to stabilize the U.S. financial system. The government’s large-scale ownership of banks alarmed the U.S. banking sector. The mainstream opinion in the United States strongly opposed this practice, mostly due to the distrust of the government and the fear that government intervention would jeopardize private shareholders’ interests. Later developments, including the Treasury’s quick exit from its holdings and the Dodd-Frank Act’s declaration of the end of bailouts, suggest that the U.S. government eventually succumbed to the mainstream opinion.

Such …

Data First, Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 1), Richard Thompson Ainsworth

Faculty Scholarship

Over the past decade the VAT in the South Pacific has been changing. More change is coming. Change is needed in both the larger economies (Australia and New Zealand) and the smaller ones (the Pacific Island Countries or PICs). The changes we see currently are propelled by cross-border remote sales of services and low-value goods.

The government response in the South Pacific is not uniform. The larger economies have relied on statutory remedies; the smaller economies are turning to technology. The larger economies are crafting complex, extra-territorial compliance provisions targeting remote sellers. The smaller economies are mandating secure digital invoices, …

Board Governance For The Twenty-First Century, Faith Stevelman, Sarah C. Haan

Scholarly Articles

A decade after the global financial crisis, corporate governance is in a state of flux. A conceptual shift is underway. Years ago, in "first wave" governance, boards had a cozy relationship with the company C-suite. In "second wave" governance, which took hold in the 1970s, legal academics reimagined the board's role, conceptualizing directors as monitors charged with limiting waste and abuse that can arise in agency relationships. Now, we find ourselves at the threshold of "third wave" governance, in which boards are asked to grapple immediately and candidly with both the financial aspects of business and new environmental, social, and …

Business Law Bulletin, Spring 2019

Business Law Bulletin

No abstract provided.

Incapacitating Criminal Corporations, W. Robert Thomas

Vanderbilt Law Review

If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having a physical "body to kick"-and, by extension, a body to throw into prison-is not one of them. The ambition of this project is not to reject this obvious point but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.

This Article argues that …

Externalizing Board Governance Means Changing The Board's Function, Kelli Alces Williams

Scholarly Publications

No abstract provided.

Cybersecurity Oversight Liability, Benjamin P. Edwards

Georgia State University Law Review

A changing cybersecurity environment now poses a significant corporate-governance challenge. Although some cybersecurity data breaches may be inevitable, courts now increasingly consider when a corporation’s officers and directors may be held liable on theories that they acted in bad faith and failed to adequately oversee the corporation’s affairs. This short essay reviews recent derivative decisions and encourages corporate boards to recognize that in an environment filled with increasing threats, a reasonable response will require devoting real resources and attention to cybersecurity issues.

Procompetitive Justifications In Antitrust Law, John M. Newman

Indiana Law Journal

The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitive effects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their behavior.

But which of these myriad justifications are valid? To leading jurists and scholars, this has remained an “open question,” even an “absolute mystery.” Examination of the relevant case law reveals multiple competing approaches and seemingly irreconcilable opinions. The ongoing lack of clarity in this area is inexcusable: procompetitive-justification analysis is vital to a properly functioning antitrust enterprise.

This Article provides answers …

Shareholder Activism And Stakeholder Engagement Strategies: Promoting Environmental Justice, Human Rights, And Sustainable Development Goals, Erika George

Faculty Scholarship

The United Nations 2030 Agenda for Sustainable Development is an ambitious "plan of action for people, planet and prosperity" which seeks to promote peace and eradicate poverty. The Agenda's goals cannot be reached without private sector participation and changes to certain business practices that contribute to adverse environmental and human rights impacts. When natural resources are managed responsibly the resulting economic development can help to eradicate poverty. However, when natural resources are managed poorly, certain extractives industry sector practices can generate or exacerbate human rights abuses, environmental degradation, corruption, and conflict. Fossil fuels are connected to the changing climate. The …

Harnessing Tbgis For Regulatory Quality And Marginalized Actors, Stepan Wood, Errol Meidinger, Burkard Eberlein, Rebecca Schmidt, Kenneth W. Abbott

All Faculty Publications

The chapters of this book paint a mixed and not particularly optimistic picture of the prospects for harnessing transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—to improve the quality of transnational regulation and advance marginalized interests. This chapter synthesizes key findings about the impact of TBGIs of regulatory quality and marginalized actors, explores the implications of these findings for identifying and shaping TBGIs that foster regulatory quality or advance marginalized interests, and presents concluding reflections on lessons learned and future research directions.

Divestasi Pt. Freeport Indonesia, Erni Yoesr Yoesry

Jurnal Hukum & Pembangunan

Indonesia’s natural resources potential especially in mining sector make it becomes hunted by foreign investor, one of them is PT. Freeport Indonesia. Freeport operates in Indonesia under a Contract of Work (KK) which was signed in 1967. In this contract of work, all management and operational matters are handed over to miners. The state has no control over the operation of the company. The State would only receive royalties of the amount that has been determined in contract of work. Mining companies that want to export processed minerals (concentrates) ought to relinquish the status of contract of work into a …

Competition Policy On Online Taxi In Indonesia, Udin Silalahi

Jurnal Hukum & Pembangunan

The presence of application-based taxis such as Grabcar and Gocar is a challenge for conventional taxis. Its existence can be reduced to conventional taxi company turnover. On March 22, 2016 thousands of conventional taxi drivers held a demonstration against the existence of online taxis, because online taxis were declared in violation of the Traffic Law and consequently the streets in Jakarta were chaotic. The existence of online taxis cannot be avoided any more, due to technological developments. Online taxis provide benefits and convenience for passengers in ordering and the rates are cheaper than conventional taxi rates. Anyone who has a …

Mandatory Corporate Social Responsibility? Legislative Innovation And Judicial Application In China, Li-Wen Lin

All Faculty Publications

Corporate social responsibility (CSR) is often understood as voluntary corporate behavior beyond legal compliance. The recent emergence of CSR legislation is challenging this typical understanding. A number of countries including China, Indonesia and India have expressly stated in corporate law that companies shall undertake CSR. The CSR law is controversial. Critics of CSR see the law as an unwise effort to challenge profit maximization as the only social responsibility of the corporation. Even CSR advocates welcome the CSR law with great caution. Given the vague statutory language of CSR, the practical application of the law places high demands on the …