dunnettreader + corporate_law   33

Lords of Misrule | Matt Stoller - The Baffler - Sept 2017
In 1937, future Supreme Court Justice Robert Jackson gave a toast at the New York State Bar Association on the civic responsibilities of the legal profession.…
Evernote  legal_culture  corporate_law  legal_system  US_politics  US_legal_system  US_government  white-collar_crime  criminal_justice  DOJ  fraud  financial_crisis  financial_regulation  SEC  antitrust  Obama_administration  accountability  from instapaper
september 2017 by dunnettreader
David Ciepley - Beyond Public and Private: Toward a Political Theory of the Corporation (2013) | American Political Science Review on JSTOR
This article challenges the liberal, contractual theory of the corporation and argues for replacing it with a political theory of the corporation. Corporations are government-like in their powers, and government grants them both their external "personhood" and their internal governing authority. They are thus not simply private. Yet they are privately organized and financed and therefore not simply public. Corporations transgress all the basic dichotomies that structure liberal treatments of law, economics, and politics: public/private, government/market, privilege/equality, and status/contract. They are "franchise governments" that cannot be satisfactorily assimilated to liberalism. The liberal effort to assimilate them, treating them as contractually constituted associations of private property owners, endows them with rights they ought not have, exacerbates their irresponsibility, and compromises their principal public benefit of generating long-term growth. Instead, corporations need to be placed in a distinct category—neither public nor private, but "corporate"—to be regulated by distinct rules and norms. - downloaded via iphone to dbox
organizations  institutional_economics  corporations  corporate_citizenship  markets-dependence_on_government  article  corporate_control  institutions  management  public-private_gaps  bibliography  social_contract  liberalism  jstor  property_rights  downloaded  corporate_law  political_theory  managerialism  corporate_governance  corporate_personhood  firms-organization  property 
july 2017 by dunnettreader
Leo E. Strine - A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications :: SSRN - Journal of Corporation Law, 2015, Forthcoming (rev'd March 2015)
Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School -- This article connects the Supreme Court’s decision in Burwell v. Hobby Lobby to the history of “corporate paternalism.” It details the history of employer efforts to restrict the freedom of employees, and legislative attempts to ensure worker freedom. It also highlights the role of employment in healthcare coverage, and situates the Affordable Care Act’s “minimum essential guarantees” in a historical and global context. The article also discusses how Hobby Lobby combines with the Supreme Court’s earlier decisions in Citizens United and National Federation of Independent Business v. Sebelius to constrain the government’s ability to extend the social safety net, and shows how those decisions put pressure on corporate law itself. -- Note: The article was the subject of lectures to the Securities Regulation Institute of Northwestern University School of Law and the American Constitution Society Student Chapter at Harvard Law School. -- PDF File: 76 -- Keywords: Hobby Lobby; corporate law; corporate paternalism -- right on Leo! -- downloaded pdf to Note
article  SSRN  US_constitution  US_legal_system  corporate_law  corporate_citizenship  corporate_governance  shareholders  freedom_of_conscience  SCOTUS  labor  labor_standards  employers  employee_benefits  welfare_economics  welfare_state  health_care  campaign_finance  downloaded 
july 2015 by dunnettreader
Leo E. Strine - The Dangers of Denial: The Need for a Clear-Eyed Understanding of the Power and Accountability Structure Established by the Delaware Law :: SSRN Wake Forest Law Review, 2015, Forthcoming (March 20, 2015)
Supreme Court of Delaware; Harvard Law School; Penn Law School -- There is now a tendency among those who believe that corporations should be more socially responsible to pretend that corporate directors do not have an obligation under Delaware corporate law to make stockholder welfare the sole end of corporate governance within the limits of their legal discretion. These advocates of CSR contend that Delaware directors may subordinate stockholder welfare to other interests, such as those of the company’s workers or society generally. (..) But, the problem with that argument is that it is inconsistent with both judge-made common law of corporations in Delaware and the design of the Delaware General Corporation Law. More important, pretending that the nation’s leading corporate law is fundamentally different than it is runs contrary to the goal of ensuring that for-profit corporations behave lawfully, responsibly, and ethically. Lecturing others to do the right thing without acknowledging the rules that apply to their behavior and the power dynamics to which they are subject is not a responsible path to social progress. Rather, it provides an excuse to avoid tougher policy challenges, such as advocating for stronger externality regulation and encouraging institutional investors to exercise their power as stockholders responsibly. Those challenges must be confronted if we are to ensure that for-profit corporations are vehicles for responsible, sustainable, long-term wealth creation. -- PDF File: 43 -- downloaded pdf to Note
US_legal_system  US_politics  corporate_law  corporate_citizenship  corporate_governance  shareholder_value  profit_maximization  principal-agent  fiduciaries  law-and-economics  CSR  capital_as_power  duties-legal  duties-civic  duty_of_care  duty_of_loyalty  Delaware_law  downloaded 
july 2015 by dunnettreader
Leo E. Strine , Nicholas Walter Originalist or Original: The Difficulties of Reconciling "Citizens United" with Corporate Law History :: SSRN - Notre Dame Law Review, 2015, Forthcoming (rev'd March 2015)
Leo E. Strine Jr., Supreme Court of Delaware; Harvard Law School; Penn Law School -- Nicholas Walter, Wachtell, Lipton, Rosen & Katz -- Citizens United has been the subject of a great deal of commentary, but one important aspect of the decision that has not been explored in detail is the historical basis for Justice Scalia’s claims in his concurring opinion that the majority holding is consistent with originalism. In this article, we engage in a deep inquiry into the historical understanding of the rights of the business corporation as of 1791 and 1868 — two periods relevant to an originalist analysis of the First Amendment. Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate. -- PDF File: 94 -- Keywords: Jurisprudence, constitutional interpretation, original intent, original understanding, originalism, election law, campaign finance reform, corporate personhood, general corporation statutes, political speech, First National Bank of Boston v. Bellotti, Santa Clara County v. Southern Pacific Railroad -- downloaded pdf to Note
article  SSRN  corporate_law  corporate_citizenship  US_constitution  constitutional_law  originalism  free_speech  civil_liberties  legal_history  legal_theory  legal_reasoning  elections  campaign_finance  politics-and-money  downloaded 
july 2015 by dunnettreader
Reinier Kraakman, Bernard S. Black - A Self Enforcing Model of Corporate Law :: SSRN - Harvard Law Review, vol. 109, pp. 1911-1982, 1996
This paper develops a "self-enforcing" approach to drafting corporate law for emerging capitalist economies, based on a case study: a model statute that we helped to develop for the Russian Federation, which formed the basis for the recently adopted Russian law on joint-stock companies. The paper describes the contextual features of emerging economies that make importing statutes from developed countries inappropriate, including the prevalence of controlled companies and the weakness of institutional, market, cultural, and legal constraints. Against this backdrop, we argue that the best legal strategy for protecting outside investors in emerging economies while simultaneously preserving the discretion of companies to invest is a self-enforcing model of corporate law. The self-enforcing model structures decisionmaking processes to allow large outside shareholders to protect themselves from insider opportunism with minimal resort to legal authority, including the courts. Among the examples of self-regulatory statutory provisions are a mandatory cumulative voting rule for the selection of directors, which assures that minority blockholders in controlled companies have board representation, and dual shareholder- and board-level approval procedures for self-interested transactions. The paper also examines how one can induce voluntary compliance and structure remedies in emerging economies, as well as the implications of the self-enforcing model for the ongoing debate over the efficiency of corporate law in developed economies. -- PDF File: 73 -- downloaded pdf to Note
article  SSRN  corporate_law  corporate_governance  investor_protection  investors  capital_markets  emerging_markets  transition_economies  Russia  privatization  downloaded 
july 2015 by dunnettreader
Bernard S. Black, Reinier Kraakman, Anna Tarassova - Russian Privatization and Corporate Governance: What Went Wrong? :: SSRN - Stanford Law Review, Vol. 52, pp. 1731-1808, 2000
Bernard S. Black, Northwestern School of Law & Kellogg School of Management; European Corporate Governance Institute (ECGI); Reinier Kraakman, Harvard Law School, ECGI; Anna Tarassova, U of Maryland, Center on Institutional Reform and the Informal Sector (IRIS) -- In Russia and elsewhere, proponents of rapid, mass privatization of state-owned enterprises (ourselves among them) hoped that the profit incentives unleashed by privatization would soon revive faltering, centrally planned economies. The revival didn't happen. We offer here some partial explanations. First, rapid mass privatization is likely to lead to massive self-dealing by managers and controlling shareholders unless (implausibly in the initial transition from central planning to markets) a country has a good infrastructure for controlling self-dealing. Russia accelerated the self-dealing process by selling control of its largest enterprises cheaply to crooks, who transferred their skimming talents to the enterprises they acquired, and used their wealth to further corrupt the government and block reforms that might constrain their actions. Second, profit incentives to restructure privatized businesses and create new ones can be swamped by the burden on business imposed by a combination of (among other things) a punitive tax system, official corruption, organized crime, and an unfriendly bureaucracy. Third, while self-dealing will still occur (though perhaps to a lesser extent) if state enterprises aren't privatized, since self-dealing accompanies privatization, it politically discredits privatization as a reform strategy and can undercut longer-term reforms. A principal lesson: developing the institutions to control self-dealing is central to successful privatization of large firms. -- PDF File: 79 -- downloaded pdf to Note
article  SSRN  Russia  privatization  Russian_economy  corporate_governance  corporate_law  corporate_finance  corporate_control  corruption  asset_stripping  downloaded 
july 2015 by dunnettreader
Bernard S. Black - The Core Fiduciary Duties of Outside Directors :: SSRN -:Asia Business Law Review, pp. 3-16, July 2001
This article offers my personal, idiosyncratic overview of the principal fiduciary duties of outside directors, from a common law perspective, and what the remedies should be for breach of each of these duties. I discuss the four core fiduciary duties of directors: the duty of loyalty; the duty of care; the duty of disclosure; and the duty of special care when your company is a takeover target. -- Number of Pages in PDF File: 36 -- saved to briefcase
article  SSRN  corporate_law  corporate_governance  fiduciaries  duties-legal  duty_of_loyalty  duty_of_care  disclosure  conflict_of_interest  corporate_control_markets 
july 2015 by dunnettreader
La Porta et al -- Investor Protection and Corporate Governance by :: SSRN 2000
Rafael La Porta, Florencio Lopez de Silanes, Andrei Shleifer, Robert W. Vishny -- Recent research on corporate governance has documented large differences between countries in ownership concentration in publicly traded firms, in the breadth and depth of financial markets, and in the access of firms to external finance. We suggest that there is a common element to the explanations of these differences, namely how well investors, both shareholders and creditors, are protected by law from expropriation by the managers and controlling shareholders of firms. We describe the differences in laws and the effectiveness of their enforcement across countries, summarize the consequences of these differences, and suggest potential strategies of reform of corporate governance. We argue that the legal approach is a more fruitful way to understand corporate governance and its reform than the conventional distinction between bank-centered and market-centered financial systems. -- PDF File: 40 -- saved to briefcase
paper  SSRN  corporate_law  corporate_governance  fiduciaries  investor_protection  corporate_ownership  shareholders  capital_markets  banking-universal 
july 2015 by dunnettreader
Frederick Tung -Leverage in the Board Room: The Unsung Influence of Private Lenders in Corporate Governance:: SSRN - UCLA Law Review, Vol. 57, 2009 (rev'd 2012)
Boston University School of Law --:The influence of banks and other private lenders pervades public companies. From the first day of a lending arrangement, loan covenants and built-in contingency provisions affect managerial decision making. Conventional corporate governance analysis has been slow to notice or account for this lender influence. Corporate governance discourse has traditionally focused only on corporate law arrangements. The few existing accounts of creditors' influence over firm managers emphasize the drastic actions creditors take in extreme cases - when a firm is in serious trouble - but in fact, private lender influence is a routine feature of corporate governance even absent financial distress. (..) I explain the regularity of lender influence on managerial decision making - "lender governance" - comparing this routine influence to conventional governance arrangements and boards of directors in particular. I show that the extent of private lender influence rivals that of conventional governance mechanisms, and I discuss the doctrinal and policy implications of this unsung influence. Accounting for lender governance requires a new examination of corporate fiduciary duties, debtor-creditor laws, and the regulatory reform proposals that have emerged to address the current financial crisis. I also discuss the implications of private lender influence for future corporate governance research. -- PDF File: 69 -- lender governance, corporate governance, covenants, credit agreement, private lender, private debt, creditor, financial regulation, financial crisis -- saved to briefcase
article  SSRN  corporate_finance  corporate_governance  creditors  banking  relationship_lending  financial_regulation  corporate_law  capital_markets  commercial_law  debtors  debtor-creditor  debt-restructuring  financial_crisis  finance_capital  corporate_control 
july 2015 by dunnettreader
Lyman Johnson, David Millon - Recalling Why Corporate Officers are Fiduciaries :: SSRN - William & Mary Law Review, Vol. 46, 2005
Lyman Johnson, Washington and Lee U Law School; U of St. Thomas, St. Paul/Minneapolis, MN - School of Law -- David Millon,Washington and Lee U Law School -- For all the recent federal attention to ...corporate officer and director functions, ... state fiduciary duty law makes no distinction between the fiduciary duties of these two groups. (..) The thesis of this article is that corporate officers are fiduciaries because they are agents. (..) drawing on the fiduciary duties of agents for guidance in fashioning modern understandings of corporate officer duties - and differentiating those duties from those of directors - can provide much-needed structure to what otherwise threatens to be an ad hoc enterprise. There are at least 3 benefits of our thesis. (1) state law remains the primary source for establishing the basic framework of corporate governance relations, both through corporate statutes and through judge-made fiduciary duty law. (..) (2) our thesis clarifies immensely why courts can and should more closely scrutinize officer conduct than they now review director performance (..). (3) At a theoretical level, ...our thesis has several implications. (..) we are entering an era when, due to heavier corporate regulation, the entity conception of the firm will be strengthened, as positive law, including agency law, still builds on that understanding of corporate relations. This period follows a span of perhaps 20 years when a highly disaggregated conception of corporate relations - the nexus of contracts theory - has predominated. We also believe that in the policy arguments for and against strong fiduciary duties over the years, virtually no attention has been given to distinguishing whether what is fitting for outside directors in the fiduciary duty area - relatively slack duties - is also fitting for corporate officers. -- saved to briefcase
article  SSRN  corporate_law  financial_regulation  capital_markets  fiduciaries  principal-agent  agents  duties-legal  officers-&-directors  corporate_governance  shareholders  investors  state_law  federalism  federal_preemption  SEC  SROs  corporate_personhood  directors  duty_of_care  duty_of_loyalty  conflict_of_interest  legal_remedies  law-and-economics  law-and-finance 
july 2015 by dunnettreader
Lyman Johnson, David Millon - Corporate Law after Hobby Lobby :: SSRN (rev'd Jan 2015) THE BUSINESS LAWYER, Vol 70 - November 2014
Lyman Johnson, Washington and Lee University - School of Law; University of St. Thomas, St. Paul/Minneapolis, MN - School of Law -- David Millon
Washington and Lee University - School of Law -- We evaluate the U.S. Supreme Court's controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation 'for any lawful purpose.' We elaborate on this important point and also explain what it means for a corporation to 'exercise religion.' In addition, we address the larger implications of the Court's analysis for an accurate understanding both of state law's essentially agnostic stance on the question of corporate purpose and also of the broad scope of managerial discretion. -- PDF File: 33 -- Keywords: Corporate purpose, Corporate personhood, Shareholder wealth maximization, Shareholder primacy, Corporate social responsibility -- downloaded pdf to Note
article  SSRN  corporate_law  corporate_citizenship  corporate_governance  shareholders  freedom_of_conscience  SCOTUS  civil_liberties  corporate_control  corporate_personhood  limited_liability  corporations-closely-held  corporations  CSR  shareholder_value  shareholder_voting  profit_maximization  law-and-economics  labor_law  employee_benefits  power-asymmetric  capital_as_power  constitutional_law  downloaded 
july 2015 by dunnettreader
Edward B. Rock - Institutional Investors in Corporate Governance (Jan 2015) :: SSRN - Oxford Handbook on Corporate Law and Governance, 2015, Forthcoming
Penn Law School -- chapter examines the role of institutional investors in corporate governance and the role of regulation in encouraging institutional investors to become active stewards. (..) what lessons we can draw from the US experience for the EU’s 2014 proposed amendments to the Shareholder Rights Directive.(...) survey how institutional investors themselves are governed and how they organize share voting. (...) 2 central questions: (a) why, over the last 25 years, have institutional investors not fulfilled the optimists’ hopes?; and (b) can the core incentive problems that subvert Institutional Investor activism be cured by regulation? The US experience [substantial deregulation led to only modest increases in shareholder activism], suggests (..) institutional investors’ relative passivity is a fundamental lack of incentives. I examine the disappointing results of the SEC’s long experiment with incentivizing mutual funds to vote their shares (...) the EU efforts are likely to be similarly disappointing. I then examine the important role that hedge funds now play in catalyzing institutional shareholders, and consider some of the risks in relying on such highly incentivized actors. -- PDF File: 26 -- saved to briefcase
chapter  books  SSRN  law-and-economics  behavioral_economics  financial_economics  financial_regulation  corporate_governance  corporate_law  corporate_finance  capital_markets  corporate_control_markets  institutional_investors  shareholders  shareholder_voting  mutual_funds  incentives  activist_investors  investors  hedge_funds  proxies  comparative_law  administrative_law  EU-law  regulation-harmonization  regulation-enforcement  fiduciaries  profit_maximization  EU-regulation 
july 2015 by dunnettreader
David Millon - Radical Shareholder Primacy :: SSRN - Aug 2014
Washington and Lee University - School of Law -- University of St. Thomas Law Journal, Vol. 10:4 (2013) -- Washington & Lee Legal Studies Paper No. 2014-17 -- written for a symposium on the history of CSR, seeks to make sense of the surprising disagreement on the foundational legal question of corporate purpose: does the law require shareholder primacy or not? (..) disagreement is due to the unappreciated ambiguity in the shareholder primacy idea. (.. ) 2 models, the 'radical' and the 'traditional.' Radical shareholder primacy originated at Chicago in the later 1970s, (Daniel Fischel and Frank Easterbrook). [It asserts] that corporate management is the agent of the shareholders, charged with maximizing their wealth. There is no legal authority for this claim; Fischel drew it from the financial economists Michael Jensen and William Meckling, who used the agency idea in a non-legal sense. [The traditional model is] the idea that shareholders hold a privileged position within the corporation's governance structure, ... and (..) fiduciary duties as being owed to 'the corporation and its shareholders.' (..) shareholders enjoy primacy over (..) other stakeholders, although there is no maximization mandate and shareholders [have limited effective legal means] to insist that management privilege their interests. Nevertheless, this version of shareholder primacy is enshrined in the law, and, if the radical version's agency claim is laid to rest, there is no harm in acknowledging that fact. -- PDF File: 34 -- saved to briefcase
paper  SSRN  corporate_law  corporate_citizenship  corporate_governance  shareholder_value  profit_maximization  principal-agent  fiduciaries  law-and-economics  CSR  capital_as_power  status_quo_bias 
july 2015 by dunnettreader
David Millon - The Single Constituency Argument in the Economic Analysis of Business Law :: SSRN - Jan 2007
David Millon, Washington and Lee University - School of Law -- Research in Law and Economics, 2007 -- Washington & Lee Legal Studies Paper No. 2007-01 -- The essay points out an interesting parallel in law-and-economics business law scholarship. Working largely independently of each other, economically oriented scholars working in different areas have argued that the law should focus on the interests of a single constituency - shareholders in corporate law, creditors in bankruptcy law, and consumers in antitrust law. Economic analysts thus have rejected arguments advanced by progressive scholars working in each of these areas that the law should instead concern itself with the full range of constituencies affected by business activity. The law-and-economics single constituency claim rests in part on skepticism about judicial competence but the underlying objection is to the use of law for redistributive purposes. The primary value is efficiency, defined in terms of market-generated outcomes. In this essay, I question this political commitment, suggesting that it implies a strong tendency toward maintenance of the existing distribution of wealth. Even more importantly, the single constituency claim may actually have redistributive implications. In each of these areas of business law, however, it is a regressive program that favors owners of capital against those who are generally less well of, such as workers and small business owners. -- Number of Pages in PDF File: 31 -- saved to briefcase
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  political_philosophy  political_economy  law-and-economics  conflict_of_interest  principal-agent  profit_maximization  incentives  incentives-distortions  efficiency  shareholder_value  creditors  consumers  consumer_protection  competition  status_quo_bias  capital  inequality-wealth  inequality-opportunity  power-asymmetric  capital_as_power  distribution-income  distribution-wealth  corporate_governance  corporate_law  corporate_citizenship  bankruptcy  antitrust  conservative_legal_challenges 
july 2015 by dunnettreader
Jonathan R. Macey, Joshua Mitts - Finding Order in the Morass: The Three Real Justifications for Piercing the Corporate Veil :: SSRN - Cornell Law Review, Forthcoming (Sept 2014)
Jonathan R. Macey, Yale Law School and Joshua Mitts, Columbia Law School & Business School -- Few doctrines are more shrouded in mystery and yet more litigated than piercing the corporate veil. We develop a new theoretical taxonomy which postulates that veil-piercing decisions fall into three categories: (1) achieving the purpose of a statutory or regulatory scheme, (2) preventing shareholders from obtaining credit by misrepresentation, and (3) promoting the bankruptcy values of achieving the orderly, efficient resolution of a bankrupt’s estate. We analyze the facts of several veil-piercing cases to show how the outcomes are explained by the three theories we put forth and show that undercapitalization is rarely, if ever, an independent grounds for piercing the corporate veil. In addition, we employ modern quantitative machine learning methods never before utilized in legal scholarship to analyze the full text of 9,380 judicial opinions. We demonstrate that our theories systematically predict veil-piercing outcomes, the widely-invoked rationale of “undercapitalization” of the business poorly explains these cases, and our theories most closely reflect the textual structure of the opinions. -- PDF File: 80 -- saved to briefcase
article  SSRN  corporate_law  limited_liability  bankruptcy  fraud  regulation-enforcement  regulatory_avoidance 
july 2015 by dunnettreader
Frank Pasquale - Four Futures of Legal Automation | Balkinization: June 2015
http://balkin.blogspot.com/2015/06/four-futures-of-legal-automation.html -- overview of new article dealing with different scenarios for "disruption" promised by "innovators" and venture capitalists, which is likely to take the new fashion of arbitraging "inefficiencies" without any thoughts as to consequences for unraveling the "logic" of the current systems of legal services, re both content and access -- Instapaper has a number of links -- also downloaded pdf to Note
Instapaper  article  legal_system  legal_culture  automation  Innovation  technology  access_to_services  corporate_law  criminal_justice  family_law  property_rights  rights-legal  contracts  links  downloaded  from instapaper
june 2015 by dunnettreader
Margaret Blair - What must corporate directors do? Maximizing shareholder value versus creating value through team production | Brookings Institution - June 2015
Blair reviews the legal and economic theories behind the share-value maximization norm, and then lays out a theory of corporate law building on the economics of team production. Arguing that the corporate form itself helps solve the team production problem, Blair details five features which distinguish corporations from other organizational forms: 1. Legal personality -- 2. Limited liability -- 3. Transferable shares -- 4. Management under a Board of Directors -- 5. Indefinite existence -- Blair concludes that these five characteristics are all problematic from a principal-agent point of view where shareholders are principals. However, the team production theory makes sense out of these arrangements. This theory provides a rationale for the role of corporate directors consistent with the role that boards of directors historically understood themselves to play: balancing competing interests so the whole organization stays productive. -- downloaded pdf to Note
paper  corporate_governance  corporate_citizenship  business_practices  shareholder_value  hedge_funds  corporate_law  firms-theory  firms-structure  equity-corporate  equity_markets  investors  long-term_orientation  labor_share  cooperation  coordination  teams  downloaded 
june 2015 by dunnettreader
Steve Perlstein - Social Capital, Corporate Purpose, and the Revival of American Capitalism | Brookings Institution - January 2014
Since the Great Recession of 2008, corporate profits have more than rebounded, and yet the rest of the American economy has struggled to recover. Widening income inequality and an erosion of social capital and economic trust has deprived capitalism of its moral high ground. The public has lost confidence in big businesses--asking what purpose they serve in society writ large. Pearlstein argues we can begin to restoring the economic and moral legitimacy of American capitalism by reconsidering the purpose of corporations in American life. Despite the current dominance of the theory of “maximizing shareholder value,” this idea has little basis in history or law. Shifting to a more balanced form of capitalism will take time, but some possible steps for reform include: #-# Support investment funds dedicated to long-term horizons, including socially responsible investment funds #-# Recalibrate corporate governance law to allow for more flexible decision making #-# Rebalance capital gains taxes to encourage long-term stock holding by investors #-# Explore regulatory options for financial services, like a financial transaction tax to dampen the influence of short-term trading #-# Encourage a wider range of corporate metrics beyond quarterly earnings guidance #-# Reform shareholder voting rights to foster a sense of stewardship -- didn't download it -- Brookings also has video of Perlstein in Charlie Rose
paper  video  corporate_governance  corporate_citizenship  business_practices  corporate_finance  corporate_law  corporate_tax  financial_crisis  investors  institutional_investors  shareholder_value  capital_markets  shareholder_voting  capital_gains  financial_transaction_tax  short-termism  capitalism  capitalism-systemic_crisis 
may 2015 by dunnettreader
Ron Harris - (pdf) The Institutional Dynamics of Early Modern Eurasian Trade: The Commenda and the Corporation
The focus of this article is on legal-economic institutions that organized early- modern Eurasian trade. It identifies two such institutions that had divergent dispersion patterns, the corporation and the commenda. The corporation ended up as a uniquely European institution that did not migrate until the era of European colonization. The commenda that originated in Arabia migrated all the way to Western Europe and to China. The article explains their divergent dispersion based on differences in their institutional and geographical environments and on dynamic factors. It claims that institutional analysis errs when it ignores migration of institutions. It provides building blocks for the modeling of institutional migration. -- via Dick Langlois at organizationsandmarkets.com presented at Nov 2014 conference put together by Business History program at Harvard Business School, on the History of Law and Business Enterprise -- downloaded to iPhone
paper  downloaded  economic_history  institutional_economics  legal_history  medieval_history  firms-structure  firms-theory  trade  colonialism  Europe-Early_Modern  China  India  MENA  Islamic_law  business_practices  risk_management  economic_culture  cultural_influence  trade-cultural_transmission  corporate_law  business_history  comparative_economics  Eurasia  business  organizations 
january 2015 by dunnettreader
Lori Wallach & Ben Beachy - Eyes on Trade: Defending Foreign Corporations' Privileges Is Hard, Especially When Looking At The Facts - Nov 11 2014
Forbes just published this response from Lori Wallach and Ben Beachy (GTW director and research director) to a counterfactual Forbes opinion piece by John Brinkley in support of investor-state dispute settlement. Even those who support the controversial idea of a parallel legal system for foreign corporations, known as investor-state dispute settlement or ISDS, likely cringed at John Brinkley’s recent attempt to defend that system. (“Trade Dispute Settlement: Much Ado About Nothing,” October 16.) In trying to justify trade agreement provisions that provide special rights and privileges to foreign firms to the disadvantage of their domestic competitors, Brinkley wrote 24 sentences with factual assertions. Seventeen of them were factually wrong.
US_foreign_policy  US_legal_system  corporate_law  corporate_citizenship  cross-border  treaties  ISDS  free_trade  trade-policy  Transatlantic_Trade_and_InvestmentPartnership  Trans-Pacific-Partnership  fast_track  US_trade_agreements  international_law  property_rights  property-confiscations  competition  Congress  consumer_protection  environment  FDI  investor-State_disputes  investment-bilateral_treaties  EF-add 
november 2014 by dunnettreader
Leo Strine, Chief Justice of the Delaware Supreme Court - Delaware Benefit Corporations: Making It Easier for Directors To “Do The Right Thing” in Harvard Business Law Review — The Harvard Law School Forum on Corporate Governance and Financial Regul
Pdf of a recently published an article in the Harvard Business Law Review. -- Abstract - Some scholars(..) argue that managers should “do the right thing,” while ignoring that in the current corporate accountability structure, stockholders are the only constituency given any enforceable rights, and thus are the only one with substantial influence over managers. Few (..real proposals) that would give corporate managers more ability and greater incentives to consider the interests of other constituencies. This Article posits that benefit corporation (bencorps) statutes have the potential to change the accountability structure within which managers operate. Certain provisions (..) can create a meaningful shift in the balance of power that will in fact give corporate managers more ability to and impose upon them an enforceable duty to “do the right thing.” But (..) important questions must be answered to determine whether (bencorp) statutes will have the durable, systemic effect desired. (1) the initial wave of entrepreneurs who form (bencorps) must demonstrate a genuine commitment to (..CSR) to preserve the credibility of the movement. (2) (..) socially responsible investment funds must be willing to vote their long-term consciences instead of cashing in for short-term gains. To that end, it is crucial that (bencorps) show that doing things “the right way” will be profitable in the long run. (3) (bencorpos) must pass the “going public” test. Finally, subsidiaries that are governed as (bencorps) must honor their commitments and grow successfully, if the movement is to grow to scale. - downloaded pdf to Note
article  US_legal_system  corporate_law  corporate_governance  corporate_citizenship  corporate_ownership  corporate_control  principal-agent  management  CSR  institutional_investors  investment-socially_responsible  stakeholders  investment  accountability  benefit_corporations  public_interest  common_good  downloaded  EF-add 
november 2014 by dunnettreader
Lucian A. Bebchuk, Robert J. Jackson - Shining Light on Corporate Political Spending - Georgetown Law Journal, Vol. 101, April 2013, pp. 923-967 :: SSRN (last revised August 2014)
Lucian A. Bebchuk - Harvard Law School; National Bureau of Economic Research (NBER); Centre for Economic Policy Research (CEPR) and European Corporate Governance Institute (ECGI) -- Robert J. Jackson Jr. - Columbia Law School --- The SEC is currently considering a rulemaking petition requesting that the SEC develop rules requiring that public companies disclose their spending on politics. The petition, which was submitted by a committee of ten corporate law professors that we co-chaired, has received unprecedented support, including comment letters from nearly half a million individuals. (...)the petition has also attracted opponents, including prominent members of Congress and business organizations.This Article puts forward a comprehensive, empirically grounded case for the rulemaking advocated in the petition. We present (..) evidence indicating that a substantial amount of corporate spending on politics occurs under investors’ radar screens, and that shareholders have significant interest in receiving information about such spending. We argue that disclosure of corporate political spending is necessary to ensure that such spending is consistent with shareholder interests. We discuss the emergence of voluntary disclosure practices in this area and show why voluntary disclosure is not a substitute for SEC rules. We also provide a framework for the SEC’s design of these rules. Finally, we consider and respond to ten objections that have been raised to disclosure rules of this kind. We show that all of the considered objections, both individually and collectively, provide no basis for opposing rules that would require public companies to disclose their spending on politics. -- downloaded pdf to Note
article  SSRN  US_government  administrative_law  administrative_agencies  financial_system  SEC  disclosure  corporate_law  corporate_governance  corporate_finance  corporate_citizenship  campaign_finance  capital_markets  investors  political_participation  lobbying  downloaded  EF-add 
november 2014 by dunnettreader
Addressing the Tax Challenges of the Digital Economy (Sept 2014) - OECD/G20 Base Erosion and Profit Shifting Project Tax | OECD
The spread of the digital economy poses challenges for international taxation. This report sets out an analysis of these tax challenges. It notes that because the digital economy is increasingly becoming the economy itself, it would not be feasible to ring-fence the digital economy from the rest of the economy for tax purposes. The report notes, however, that certain business models and key features of the digital economy may exacerbate BEPS risks. These BEPS risks will be addressed by the work on the other Actions in the BEPS Action Plan, which will take the relevant features of the digital economy into account. The report also analyses a number of broader tax challenges raised by the digital economy, and discusses potential options to address them, noting the need for further work during 2015 to evaluate these broader challenges and potential option. - Report can be read online or $ for download
report  OECD  G20  BEPS  21stC  international_political_economy  global_governance  MNCs  taxes  tax_havens  tax_collection  OECD_economies  transfer_pricing  transaction_costs  digital_economy  accounting  firms-structure  IP  profit  arms-length_transactions  treaties  corporate_citizenship  corporate_law  corporate_tax  reform-legal  fiscal_policy 
november 2014 by dunnettreader
Oct 2014 - Release of discussion draft on Action 7 of the BEPS Action Plan (Artificial Avoidance of Permanent Establishment Status) | Tax treaties - OECD
The OECD Action Plan on Base Erosion and Profit Shifting, July 2013, identifies 15 actions to address BEPS in a comprehensive manner and sets deadlines to implement these actions. Action 7 – Prevent the Artificial Avoidance of PE (permanent establishment) Status -- including through the use of commissionnaire arrangements and the specific activity exemptions. Work on these issues will also address related profit attribution issues. -- Public comments are invited on a discussion draft which ... includes proposals for changes to the definition of PE in the OECD Model Tax Convention. -- The Action Plan also notes that MNCs may artificially fragment their operations among multiple group entities to qualify for the exceptions to PE status for preparatory and auxiliary activities. -- Further, the Report Addressing the Tax Challenges of the Digital Economy has identified issues in the digital economy that need to be taken into account in the course of the work on Action 7, namely ensuring that core activities cannot inappropriately benefit from the exception from PE status and that artificial arrangements relating to sales of goods and services cannot be used to avoid PE status.
OECD  OECD_economies  international_political_economy  global_governance  MNCs  taxes  tax_havens  tax_collection  transfer_pricing  treaties  BEPS  accounting  corporate_tax  corporate_citizenship  corporate_law  reform-legal  digital_economy  G20  profit  arms-length_transactions  transaction_costs  firms-structure 
november 2014 by dunnettreader
Mark S. Mizruchi - Berle and Means Revisited: The Governance and Power of Large U.S. Corporations | JSTOR: Theory and Society, Vol. 33, No. 5 (Oct., 2004), pp. 579-617
In The Modern Corporation and Private Property (1932), Berle and Means warned of the concentration of economic power brought on by the rise of the large corporation and the emergence of a powerful class of professional managers, insulated from the pressure not only of stockholders, but of the larger public as well. In the tradition of Thomas Jefferson, Berle and Means warned that the ascendance of management control and unchecked corporate power had potentially serious consequences for the democratic character of the United States. Social scientists who drew on Berle and Means in subsequent decades presented a far more benign interpretation of the rise of managerialism, however. For them, the separation of ownership from control actually led to an increased level of democratization in the society as a whole. Beginning in the late 1960s, sociologists and other social scientists rekindled the debate over ownership and control, culminating in a series of rigorous empirical studies on the nature of corporate power in American society. In recent years, however, sociologists have largely abandoned the topic, ceding it to finance economists, legal scholars, and corporate strategy researchers. In this article, I provide a brief history of the sociological and finance/legal/strategy debates over corporate ownership and control. I discuss some of the similarities between the two streams of thought, and I discuss the reasons that the issue was of such significance sociologically. I then argue that by neglecting this topic in recent years, sociologists have failed to contribute to an understanding of some of the key issues in contemporary business behavior. I provide brief reviews of four loosely developed current perspectives and then present an argument of my own about the changing nature of the U.S. corporate elite over the past three decades. I conclude with a call for sociologists to refocus their attention on an issue that, however fruitfully handled by scholars in other fields, cries out for sociological analysis. -- downloaded pdf to Note
article  jstor  economic_history  intellectual_history  20thC  21stC  US_economy  US_politics  political_economy  political_sociology  economic_sociology  law-and-finance  law-and-economics  capitalism  corporations  MNCs  corporate_governance  corporate_finance  capital_markets  shareholder_value  shareholders  principal-agent  management  managerialism  corporate_citizenship  corporate_control_markets  corporate_law  M&A  business-and-politics  business-norms  power  power-asymmetric  status  interest_groups  lobbying  regulation  bibliography  downloaded  EF-add 
september 2014 by dunnettreader
Richard Briffault - The Uncertain Future of the Corporate Contribution Ban (Valparaiso University Law Review, Forthcoming) July 25, 2014 :: SSRN
Columbia Law School -- Columbia Public Law Research Paper No. 14-405 -- Concern about the role of corporate money has been a longstanding theme in American politics. The first permanent federal campaign finance law – the Tillman Act of 1907 – prohibited federally-chartered corporations from making contributions in any election and prohibited all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened over a century the federal corporate contribution ban is still on the books. Twenty-one states also prohibit corporate contributions to candidates in state elections. SCOTUS sustained the federal corporate contribution ban as recently as 2003 in FEC v. Beaumont, but that decision and the corporate contribution ban today rest on shaky ground. The Roberts Court has demonstrated little respect for either legislated campaign finance restrictions or the Court’s own campaign finance precedents. -- In Citizens United and McCutcheon, the Court emphasized that campaign finance restrictions cannot be justified by the goal of reducing the political power of the wealthy. Although much of the impetus for the corporate contribution ban is public anxiety over corporate wealth and power, the shareholder-protection and anti-circumvention justifications are not triggered by concern about corporate wealth but, rather, reflect other key features of the corporate form – its artificial existence as a legal to achieve ends desired by the individuals who have created it, and the potential for those who control the corporation to exploit shareholders. These two interests work in tandem, with shareholder-protection having greater purchase for multi-shareholder publicly-held entities, and anti-circumvention more relevant for single-shareholder, closely-held or nonprofit corporations. Together, they make the case for the corporate contribution ban for reasons other than the equality-promoting goal that Citizens United and McCutcheon so vehemently rejected. -- another paper beginning to deal with inherent conflict between management and shareholder interests in political spending that puts 2 conservative trends on collision
article  SSRN  SCOTUS  constitutional_law  corporate_law  campaign_finance  elections  corporate_governance  shareholders  shareholder_value  investors  management  principal-agent  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
Leo E. Strine , Nicholas Walter - Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and Citizens United (Cornell Law Review, Forthcoming) - August 1, 2014 :: SSRN
Leo E. Strine Jr. - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School -- Nicholas Walter, Yale University -- Harvard Law School John M. Olin Center Discussion Paper No. 788 -- One important aspect of Citizens United has been overlooked: the tension between the conservative majority’s view of for-profit corporations, and the theory of for-profit corporations embraced by conservative thinkers. This article explores the tension between these conservative schools of thought and shows that Citizens United may unwittingly strengthen the arguments of conservative corporate theory’s principal rival. Citizens United posits that stockholders of for-profit corporations can constrain corporate political spending and that corporations can legitimately engage in political spending. Conservative corporate theory is premised on the contrary assumptions that stockholders are poorly-positioned to monitor corporate managers for even their fidelity to a profit maximization principle, and that corporate managers have no legitimate ability to reconcile stockholders’ diverse political views. Because stockholders invest in for-profit corporations for financial gain, and not to express political or moral values, conservative corporate theory argues that corporate managers should focus solely on stockholder wealth maximization and non-stockholder constituencies and society should rely upon government regulation to protect against corporate overreaching. Conservative corporate theory’s recognition that corporations lack legitimacy in this area has been strengthened by market developments that Citizens United slighted: that most humans invest in the equity markets through mutual funds under section 401(k) plans, cannot exit these investments as a practical matter, and lack any rational ability to influence how corporations spend in the political process. -- Keywords: Corporate governance, political spending, Citizens United, conservative corporate theory, regulatory externalities, lobbying, profit maximization, constitutional law, election law, labor law
article  SSRN  SCOTUS  legal_history  legal_system  legal_theory  corporate_law  corporate_governance  principal-agent  management  shareholders  shareholder_value  campaign_finance  lobbying  elections  labor_law  US_constitution  constitutional_law  public_policy  interest_groups  oligarchy  rent-seeking  investors  savings  capitalism  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
Ronald Collins - Ask the author: Robert Post – Citizens Divided : SCOTUSblog - August 2014
The following is a series of questions posed by Ronald Collins on the occasion of the publication of Citizens Divided: Campaign Finance Reform & the Constitution by Robert C. Post, with commentaries by Pamela Karlan, Lawrence Lessig, Frank Michelman, and Nadia Urbinati. -- The central thesis of my book is to distinguish between two forms of American constitutional self-government. In the first and historically prior form of self-government, self-determination consists of a process of representation mediated by elections. I call this view of self-government “representation.” In the second form of self-government, which did not emerge until the twentieth century, self-determination consists of processes of ongoing communication constituted by First Amendment rights. I call this view of self-government “discursive democracy.” It turns out that representation and discursive democracy possess entirely different constitutional structures and properties. The tension between representation and discursive democracy is at the heart of the doctrinal confusion of cases like Citizens United. -- Question: You write that the “Justices who joined the majority opinion in Citizens United did not seem aware that the constitutional value of electoral integrity is implicit in their own reliance on First Amendment rights.” In this regard you add that your hope in this book is to “build a bridge between the majority and the dissent by illuminating the entailments of our own contemporary commitment to First Amendment ideals.” Tell us about that “bridge” you hope to construct between the Court’s so-called conservative and liberal wings?
books  reviews  kindle-available  US_constitution  SCOTUS  free_speech  elections  political_participation  legitimacy  campaign_finance  corporate_citizenship  corporate_law  democracy  discourse-political_theory  deliberation-public  representative_institutions  oligarchy  EF-add 
august 2014 by dunnettreader
"Corporate Shaming Revisited: An Essay for Bill Klein" by David A. Skeel Jr. | Penn Law School
C David A. Skeel Jr., University of Pennsylvania -- published as 2 Berkeley J. L. & Bus. 105 -- Recommended Citation -- Skeel, David A. Jr., "Corporate Shaming Revisited: An Essay for Bill Klein" (2005). Faculty Scholarship. Paper 692. - http://scholarship.law.upenn.edu/faculty_scholarship/692 -- downloaded pdf to Note
corporate_governance  corporate_citizenship  corporate_law  busisness-ethics  downloaded 
july 2014 by dunnettreader
The Collected Papers of Frederic William Maitland, vol. 3 of 3 (1911) - Online Library of Liberty
Frederic William Maitland, The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3. 07/17/2014. <http://oll.libertyfund.org/titles/873> -- Vol. 3 of a three volume collection of the shorter works of the great English legal historian, including many essays on aspects of medieval law and some biographical essays. Includes trusts and corporations, canon law, miscellaneous bits on Elizabethan period, especially relations with Papacy-- downloaded mobi version of book scan OCR
books  etexts  medieval_history  legal_history  legal_system  British_history  12thC  13thC  14thC  15thC  16thC  Elizabeth  Reformation  canon_law  Papacy  Papacy-English_relations  Church_of_England  Wales  property  property-confiscations  corporations  corporate_law  trusts  downloaded  EF-add 
july 2014 by dunnettreader
Josephine Sandler Nelson - "CORPORATE CONSPIRACY: HOW NOT CALLING A CONSPIRACY A CONSPIRACY IS WARPING THE LAW ON CORPORATE WRONGDOING" | Cornell Journal of Law and Public Policy 24.2 (2015) - bepress
The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy. Especially in the wake of the financial crisis, prosecutors and the public are searching for new tools. The most obvious and tested tool would be to roll back the intracorporate conspiracy doctrine. In the absence of this solution, frustration with applying the doctrine has led to over-reliance on alternative methods of holding agents of enterprises responsible for their actions -- piercing the corporate veil, responsible corporate officer doctrine, and unusual approaches such as denying “retroactive” imposition of the corporate veil and adopting “reverse” piercings of the corporate veil. But these doctrines were fundamentally developed in and adapted to other circumstances. They do not take into account the coordination of actions within an enterprise and the unique nature of conspiracy that fall—and should fall—into the heart of behavior that would trigger liability if not for the intracorporate conspiracy doctrine. Using alternative doctrines to impose liability on behavior that would otherwise be recognized as intracorporate conspiracy results in inconsistent decisions and disproportionate awards. -- downloaded pdf to Note
article  legal_theory  corporations  corporate_law  liability  accountability  crime  criminal_justice  financial_regulation  torts  downloaded  EF-add 
july 2014 by dunnettreader

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