Commercial Law Commons^™

Monitoring To Reduce Agency Costs: Examining The Behavior Of Independent And Non-Independent Boards, Anita Anand, Frank Milne, Lynnette Purda

Seattle University Law Review

Berle and Means’s analysis of the corporation—in particular, their view that those in control are not the owners of the corporation—raises questions about actions that corporations take to counter concerns regarding management’s influence. What mechanisms, if any, do corporations implement to balance the distribution of power in the corporation? To address this question, we analyze boards of directors’ propensity to voluntarily adopt recommended corporate governance practices. Because board independence is one way to enhance shareholders’ ability to monitor management, we probe whether firms with independent boards of directors (which we define as boards with either an independent chair or a …

Rethinking The Separation Of Ownership From Management In American History, Kenneth Lipartito, Yumiko Morii

Seattle University Law Review

In <em>The Modern Corporation and Private Property</em>, Adolf Berle and Gardiner Means would use AT&T as a prime example of what they saw as a dangerous new trend, the replacement of ownership-based capitalism with giant corporations controlled by a small group of propertyless managers. Indeed, AT&T became Berle and Means’ favorite example. . . . As we shall see, however, the claim that AT&T was a leading example of the separation of ownership from management is incomplete. More importantly, the common interpretation of Berle and Means’ work is mistaken, placing the emphasis incorrectly on the number of shareholders and reading …

China’S Implementation Of The Un Sales Convention Through Arbitral Tribunals, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

Because of China’s enormous and fast-growing economy and its increasing role in shaping global governance, the evolving rule of law system in the People’s Republic poses some of the most critical challenges and opportunities for peace and prosperity in our era. This article examines a feature of the private law system which has developed over the past three decades alongside—arguably instead of—a reliable public order for resolution of international commercial disputes. It does so by focusing on the decisions issued by China’s pre-eminent arbitral association—the China International Economic and Trade Arbitration Commission (CIETAC) in Beijing. This article examines the role …

The Pitfalls Of The (Perfect) Market Benchmark: The Case Of Countervailing Duty Law, Wentong Zheng

UF Law Faculty Publications

Markets have long been used as benchmarks for economic value in various areas of law. However, a crucial question has received less than adequate attention: what type of market should be used in the market benchmark? More specifically, given all the imperfections one typically finds in day-to-day markets, how perfect does a market have to be in order to qualify as a benchmark for economic value? This Article discusses this question using countervailing duty law as a case study. Countervailing duty law allows the United States to impose countervailing duties on imported merchandise to offset subsidies conferred by foreign governments …

Economic Value, Equal Dignity And The Future Of Sweepstakes, Anthony N. Cabot, Glenn J. Light, Karl F. Rutledge

UNLV Gaming Law Journal

The three basic forms of prize gaming are gambling, sweepstakes, and contests. Most states have a common approach to determining the legality of prize gaming. In general, states analyze if an activity includes three factors associated with gambling: (1) opportunity to win a prize, (2) winning based on chance, and (3) consideration paid to take that chance. If you take away any one of the three elements of gambling—consideration, prize, or chance—you have an activity that is lawful in most states. A contest, for example, differs from gambling because the winner is determined by skill. Determination of whether a (pay-for-play) …

Securities Intermediaries And The Separation Of Ownership From Control, Jill E. Fisch

Seattle University Law Review

The Modern Corporation & Private Property is a paradigm-shifting analysis of the modern corporation. The book is perhaps best known for the insights of Berle and Means about the separation of ownership from control and the consequences of that separation for the allocation of power within the corporation. The Berle and Means story focuses on the shareholder as the owner of the corporation. Berle and Means saw the mechanism of centralized management—in which the shareholder retains the economic interest but not the control rights associated with ownership—as threatening the conception of shareholder interests in terms of property rights. In particular, …

The Modern Corporation As Social Construction, Mark S. Mizruchi, Daniel Hirschman

Seattle University Law Review

Classic works, Mark Mizruchi and Lisa Fein argued, share a particular fate. Authors often cite classic works without reading them—or without reading them carefully. . . . Yet perhaps no single work fits the above description better than one of the most important books on the large corporation ever published: Adolf Berle and Gardiner Means’s The Modern Corporation and Private Property. One can speculate that few works in the social sciences have been as often cited and as little read. As a consequence, we would expect The Modern Corporation to be a good candidate for either selective interpretation or …

Knock It Off: An Analysis Of Trademark Counterfeit Goods Regulation In The United States, France, And Belgium, Kate Goldwasser

Cardozo Journal of International and Comparative Law

The note examines the legal standards for online platforms' liability regarding the sale of counterfeit goods in the US, France, and Belgium. It highlights the discrepancies in how each country applies contributory liability to platforms like eBay and advocates for consistent international regulations to address the growing issue of online counterfeit sales.

Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben

Articles & Book Chapters

In this article, Professors Stephanie Ben-Ishai and Stephen Lubben explore the recent surge in popularity of “quick-sales,” essentially the pre-reorganization plan sale of an insolvent debtor’s assets. In their examination of quick sales, the authors use the recent examples of Lehman Brothers and Chrysler to illustrate the popularity and relevance of the pre-plan sales. The authors then move on to a more detailed discussion of the quick sales process in both Canada and the United States, isolating the differences and similarities between both countries, and weighing the costs and benefits of each approach. Ultimately, the authors argue that questions of …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Faculty Scholarship

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

What The Financial Services Industry Puts Together Let No Person Put Asunder: How The Gramm-Leach-Bliley Act Contributed To The 2008 - 2009 American Capital Markets Crisis, Joseph Karl Grant

Journal Publications

The current subprime financial crisis has shaped up to be one of the most dramatic and impactful events in the past few decades. No one particular factor fully accounts for why the American economy suffered setbacks unseen since the Great Depression of the 1930s. Some of the roots of the current financial crisis started taking hold in 1999 when Congress passed the Financial Services Modernization Act, also known as the Gramm-Leach-Bliley Act. Gramm-Leach-Bliley brought about sweeping deregulation to the financial services industry. In essence, Gramm -Leach-Bliley swept away almost six decades of financial services regulation precipitated by the Great Depression …

Corporate Power In The Public Eye: Reassessing The Implications Of Berle’S Public Consensus Theory, Marc T. Moore, Antoine Rebérioux

Seattle University Law Review

We analyze Berle’s overall corporate governance project in accordance with what we see as its four core sub-themes: (A) the limitations of external market forces as a constraint on managerial decision-making power; (B) the desirability of internal (corporate) over external (market) actors in allocating corporate capital; (C) civil society and the public consensus as a continuous informal check on managerial decision-making power; and (D) shareholder democracy (as opposed to shareholder primacy or shareholder wealth maximization) as a socially instrumental institution. We seek to debunk the popular misconception that Berle’s early work was a defense of the orthodox shareholder primacy paradigm …

Notice Of Assignment And Discharge By Performance, Chee Ho Tham

Research Collection Yong Pung How School Of Law

Notice plays an important role in the equitable assignment of legal choses in action, such as a contractual debt. As noted in a recent treatise, once the debtor is given notice of the equitable assignment: (i) should she pay the sum owed to her creditor, she is not discharged from her obligation but will have to make payment again to the assignee [the 'no discharge after notice' rule]; (ii) the assignee’s right against the debtor has priority against subsequent assignments by the assignor, in order of precedence of notice [the rule as to priorities]; and (iii) the debtor is no …

Agency And Partnership Law [2009], Pearlie Koh, Stephen Bull

Research Collection Yong Pung How School Of Law

The laws relating to the creation of an agency, implied authority, holding out and apparent authority, duties of the agent in relation to Agency law are discussed. The laws relating to partnership law and issues such as relationship of partners to third parties, relationships of partners between themselves and capacity to be a partner are highlighted.

Back To The Future: Rediscovering Equitable Discretion In Trademark Cases, Mark P. Mckenna

Journal Articles

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their …

Irrelevent Confusion, Mark P. Mckenna, Mark A. Lemley

Journal Articles

Trademark law centers its analysis on consumer confusion. With some significant exceptions, the basic rule of trademark law is that a defendant’s use of a mark is illegal if it confuses a substantial number of consumers and not otherwise.

As a general matter, this is the right rule. Trademark law is designed to facilitate the workings of modern markets by permitting producers to accurately communicate information about the quality of their products to buyers, and therefore to encourage them to invest in making quality products in circumstances in which that quality wouldn’t otherwise be apparent. If competitors can falsely mimic …

The Role Of Independent Directors In Startup Firms, Brian Broughman

Vanderbilt Law School Faculty Publications

This Article develops a new theory to explain the widespread use of independent directors in the governance of startup firms. Privately held startups often assign a tie-breaking board seat to a third-party independent director. This practice cannot be explained by the existing corporate governance literature, which relies on diffuse ownership and passive investment-features unique to the publicly traded firm. To develop an alternative theory, I model a financing contract between an entrepreneur and a venture capital investor. I show that allocating a tie- breaking vote to an unbiased third party can prevent opportunistic behavior that would occur if the firm …

Citizens United & Corporate & Human Crime, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster …

The Constructive Trust In Singapore: Five Persistent Puzzles, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This paper investigates some persistent difficulties surrounding the constructive trust. The five persistent puzzles relating to the constructive trust that are considered in this paper are: the terminology puzzle, the institutional and remedial puzzle, the explanatory puzzle, the bankruptcy puzzle and the Torrens puzzle. It is the author’s thesis that these five enduring puzzles must be addressed and ultimately unravelled in order to ensure the coherent development of the law in this area.

The New International Arbitration (Amendment) Bill – A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay

Research Collection Yong Pung How School Of Law

Singapore aspires to retain its place as a trusted arbitration hub for commercial parties all around the world. The recently proposed amendments to the International Arbitration Act seek to bring Singapore closer to meeting international standards in relation to the arbitration procedure. While the initiative should be applauded, those amendments relating to interim measures fall somewhat short of expectations of a new, broader framework of curial assistance in aid of arbitration. This article explores the uncertainties that could arise from the proposed amendments, either because of phrasing or of an omission to embrace the Model Law. It is hoped that …