Corporate Law

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Colleen Martinez-skinner - One of the best experts on this subject based on the ideXlab platform.

Kellye Y Testy - One of the best experts on this subject based on the ideXlab platform.

  • capitalism and freedom for whom feminist legal theory and progressive Corporate Law
    Law and contemporary problems, 2007
    Co-Authors: Kellye Y Testy
    Abstract:

    This article examines how feminist legal theory might bolster the progressive Corporate Law project by providing an enhanced framework for re-envisioning and restructuring the role and place of the modern corporation in society. First, the article presents an overview of the dominant conception of Corporate Law and the emerging progressive assessments of that narrative. It then offers the lens of feminist legal theory as a tool to further analyze Corporate Law, detailing the central components of feminist analysis and surveying the few feminist inroads made into Corporate Law and governance. The article's final section argues that a progressive theory of Corporate Law must also be a feminist theory, urges a more explicit alliance between the progressive and feminist Corporate Law projects, and describes several additional substantive directions that a feminist, progressive view of Corporate Law should take.

Kent Greenfield - One of the best experts on this subject based on the ideXlab platform.

  • Reclaiming Corporate Law in a New Gilded Age
    Harvard Law and Policy Review, 2008
    Co-Authors: Kent Greenfield
    Abstract:

    Corporate Law matters. Traditionally seen as the narrow study of the relationship between managers and shareholders, Corporate Law has frequently been relegated to the margins of legal discussion and political debate. The marginalization of Corporate Law has been especially prevalent among those who count themselves as progressives. While this has not always been true, in the last generation or so progressives have focused on constitutional Law and other areas of so-called public Law, and have left Corporate Law to adherents of neoclassical Law and economics. To the extent that the behavior of businesses has been a matter of concern, that concern has been aimed at adjusting the rules of environmental Law, administrative Law, employment Law, and the like. The time has come to reclaim Corporate Law as a topic of wide debate and progressive concern. Instead of being a narrow discipline with limited implications, Corporate Law determines the rules governing the organization, purposes, and limitations of some of the largest and most powerful institutions in the world. By establishing the obligations and priorities of companies and their management, Corporate Law affects everything from employees' wage rates, to whether companies will try to skirt environmental Laws, to whether they will tend to look the other way when doing business with governments that violate human rights. Corporate Law also determines whether corporations will look at the long term or the short term, whether they will see themselves as owing any responsibilities to stakeholders other than shareholders, and indeed whether they consider themselves to be constrained by Law at all. The main thesis of this article is that Corporate Law is much more important than most progressives realize. Corporate Law can be part of the wider task of regulating corporations in particular and business in general. The rules that govern corporations should more expressly take into account the fact that corporations are collective enterprises that demand investment from a number of different sources. These investments come in various forms: inflows of capital from shareholders and creditors; cash inflows from customers; infrastructural support from governments and communities; and effort, intelligence, and direction from employees. Whereas Corporate Law presently focuses on the financial investments of shareholders only, it could, and should, be adjusted to take into account the contributions of non-equity investors. Adjusted in this way, Corporate Law will make it more possible for corporations to serve their purpose of facilitating the creation of wealth, broadly defined and distributed.

  • Debate: Saving the World with Corporate Law?
    Emory law journal, 2007
    Co-Authors: Kent Greenfield, D. Gordon Smith
    Abstract:

    The current debate within Corporate Law is as fundamental as any time since the New Deal, when the great exchange between Merrick Dodd and A.A. Berle defined the issues for a generation of scholars. Today, the community of Corporate Law scholars in the United States is split between two groups. The first, heavily influenced by economic analysis of corporations, argues the merits of increasing shareholder power vis-a-vis directors. Another group, animated by concern for economic justice, challenges the traditional, shareholder-centric view of Corporate Law, arguing instead for a model of “stakeholder governance.” The enclosed article is an untraditional method to explore these debates. It comes in the form of a debate between two prominent scholars, one from each of the two major groups, on the audacious question, “Can Corporate Law Save the World?” Each of us has authored a paper comprising one-half of the article. Professor Greenfield, a leading proponent of “progressive Corporate Law” and the author of THE FAILURE OF Corporate Law: FUNDAMENTAL FLawS AND PROGRESSIVE POSSIBILITIES (2006, The University of Chicago Press), uses this paper to offer an provocative critique of the status quo using organizational and regulatory theory. In his paper, Professor Smith, one of the nation’s leading advocates of increased shareholder power, contends that changes in Corporate Law cannot eradicate poverty, clean our air or our water, or solve “the labor question.” Indeed, he argues, the only changes in Corporate Law that will have a substantial effect on such issues are changes that will make matters worse, not better. * Copyright 2006 by Kent Greenfield and Gordon Smith. All rights reserved. † Professor of Law and Law Fund Scholar, Boston College Law School. J.D. University of Chicago; A.B. Brown University. The author thanks Gordon Smith, Lawrence Cunningham, Dana Gold, Daniel Greenwood, Renee Jones, Joshua Rosenkranz, and Adam Winkler for helpful comments and suggestions. Sean Glasheen and Rebecca Kiselewich provided excellent research assistance. ‡ † Professor of Law, University of Wisconsin Law School. Thanks to Rachel Graham and Kim Smith for research assistance.

  • Saving the World With Corporate Law
    SSRN Electronic Journal, 2007
    Co-Authors: Kent Greenfield
    Abstract:

    The current debate within Corporate Law is as fundamental as any time since the New Deal, when the great exchange between Merrick Dodd and A.A. Berle defined the issues for a generation of scholars. Today, the community of Corporate Law scholars in the United States is split between two groups. The first, heavily influenced by economic analysis of corporations, argues the merits of increasing shareholder power vis-a-vis directors. Another group, animated by concern for economic justice, challenges the traditional, shareholder-centric view of Corporate Law, arguing instead for a model of "stakeholder governance." The enclosed article is one half of a debate between two prominent scholars, one from each of the two major groups, on the audacious question, "Can Corporate Law Save the World?" Professor Greenfield, a leading proponent of "progressive Corporate Law," uses this paper to offer an provocative critique of the status quo using organizational and regulatory theory. Greenfield argues that U.S. Corporate Law should be modernized and expanded to take advantage of the distinctive abilities of the corporation to create wealth, while making it less likely that corporations will do so through breaches of the public trust or the imposition of costly externalities on stakeholders or communities. Corporate Law could also channel the power of corporations to make them a progressive force in society, using them not only to create wealth but to spread it more equitably - addressing public policy problems that have been remarkably impervious to other public policy tools. The other half of the debate, by Professor Gordon Smith, appears separately on SSRN.

  • The Place of Workers in Corporate Law
    Boston College Law Review, 2001
    Co-Authors: Kent Greenfield
    Abstract:

    This article critiques the low place of workers within Corporate Law doctrine. Corporate Law, as it is traditionally taught, is primarily about shareholders, boards of directors, and managers, and the relationships among them. This is despite the fact that workers provide an essential input to a corporation's productive activities, and that the success of the business enterprise quite often turns on the success of the relationship between the corporation and those who are employed by it. Black letter Corporate Law requires directors to place the interests of shareholders above the interests of all other "stakeholders," including workers. This article analyzes and criticizes the arguments for shareholder dominance. The article proposes that implicit, and often incorrect, assumptions about workers form an important building block for Corporate Law theory and doctrine. Moreover, justifications for shareholder dominance -- traditional notions of ownership; agency costs; the residual nature of shareholder claims; and the inability of shareholders to contract with management -- are not as strong as sometimes proposed and often apply to workers as well. Indeed, the dominant contemporary justifications for shareholder preeminence do not adequately distinguish the interests of shareholders from those of workers. Workers, too, bear agency costs of monitoring management to ensure that management fulfills its part of the implicit and explicit understandings that define the relationship. Workers, too, retain an unfixed, residual interest in their firm; their fortunes rise when the company does well, and they are worse off when the company founders. Workers, too, enter into long-term, relational contracts with management in which it is very difficult to reduce all important aspects of the agreement to writing. The fact that workers have much in common with shareholders argues for a closer examination of the affirmative arguments for the creation of fiduciary duties running to workers and for worker participation in company management. Moreover, there are reasons to doubt that what one observes as a positive matter in Corporate Law is an accurate reflection of the preferences of all the parties to the Corporate "contract." Because of inefficiencies in the labor market (many of which are simply assumed away in the Corporate Law scholarship) workers have much less ability than shareholders to exact bargaining concessions from other contracting parties or to walk away. Also, these inefficiencies make it more possible that the shareholder/management "contract" externalizes some of the costs of their agreement onto workers.

  • From Metaphor to Reality in Corporate Law
    SSRN Electronic Journal, 2001
    Co-Authors: Kent Greenfield
    Abstract:

    This essay is in response to a commentary by Professor David Millon, who ably argues in the same journal that a dependence on metaphor drives much of the debate within Corporate Law jurisprudence and Corporate Law scholarship. This essay joins Millon in his criticism. For decades, scholars have used metaphors ? corporation as person, corporation as creature of the state, corporation as property, corporation as contract, corporation as community, to name the most prominent ? as justifications for the imposition of, or freedom from, legal and ethical requirements. The metaphors are often taken as self-evident. The legal and ethical arguments then flow quite naturally. Currently, the dominant metaphors in Corporate Law spring from the rights-based common Law of contract and property. Arguments that corporations have obligations to stakeholders other than shareholders are deemed inconsistent with property or contract norms. It is no coincidence that those who oppose more socially responsible Corporate governance regimes choose metaphors from the common Law. Common Law rights have long had significant rhetorical power. Much of this persuasiveness is based on the fact that they are seen as neutral, pre-political, and pre-legal. Corporate Law is private Law, defined by common Law principles, and therefore neutral. To change it is impermissible. These rights-based metaphors used to explain Corporate Law harken back to Lochner v. New York, and are subject to some of the same criticisms. Even the so-called laissez-faire marketplace is shot through with government, and even the most basic common Law entitlements are functions of legal rules. Contract and property Law are no more neutral, private, or pre-legal than statutory Law. One cannot justify the present make-up of Corporate Law as non-political or pre-legal because it is based on common Law principles any more than Lochner could justify common Law itself as non-political or pre-legal. This essay suggests that our thinking about Corporate Law would be improved if we jettisoned the metaphors of private Law and instead considered Corporate Law as regulation. That is, Corporate Law should be subject to the same analysis as environmental Law, labor Law, tax Law, communications Law, and the like. At a high level of generality, the analysis with regard to Corporate Law rules should be the same as the analysis for other kinds of statutes and regulations. One should ask what we want our society to look like and then seek to craft a bundle of legal rules and regulatory programs that are likely to move us in that direction.

Luca Enriques - One of the best experts on this subject based on the ideXlab platform.

  • Do Corporate Law Judges Matter? Some Evidence from Milan
    European Business Organization Law Review, 2002
    Co-Authors: Luca Enriques
    Abstract:

    If Corporate Law matters to Corporate governance and finance, then in order to assess its quality in any given country, one must look at Corporate Law off the books, i.e., the characteristics of Corporate Law as applied by judges and other relevant public officials. This paper provides an assessment of Italian Corporate Law based on an analysis of a sample of 106 decisions by the Milan Tribunal, Italy’s most specialized court in Corporate Law. The judges’ quality is evaluated by looking at: (1) how deferential they are to Corporate insiders; (2) how keen they are to understand, and possibly take into account, the real rights and wrongs underlying the case before them; (3) how antiformalistic their legal reasoning is; (4) how concerned they are about the effects of their decisions on the generality of Corporate actors. The analysis casts a negative light on Milanese (and by extension, Italian) Corporate Law judges. It highlights egregious cases of deference to Corporate insiders, especially with regard to parent-subsidiary relationships. Furthermore, very few of the court’s opinions have been so drafted as to let the reader understand what the real dispute was and which party had really acted opportunistically. In any case, it appears to be rare for the court to take the substantive reasons for the dispute into any account. Cases are described, in which the court has adduced very formalistic arguments. Finally, there is no sign that the judges care about what signals they send to Corporate actors: they appear to be quite unconcerned about whether their decisions provide the right incentives for directors and shareholders.

  • do Corporate Law judges matter some evidence from milan
    European Business Organization Law Review, 2002
    Co-Authors: Luca Enriques
    Abstract:

    If Corporate Law matters to Corporate governance and finance, then in order to assess its quality in any given country, one must look at Corporate Law off the books, i.e., the characteristics of Corporate Law as applied by judges and other relevant public officials. This paper, after speculating about the interaction between Corporate Law on the books and Corporate Law off the books and accounting for recent Corporate governance developments in Italy, provides an assessment of Italian Corporate Law based on analysis of a sample of 106 decisions by the Milan Tribunal, Italy's most specialized court in Corporate Law. The judges' quality is evaluated by looking at: (1) how deferential they are to Corporate insiders; (2) how keen they are to understand, and possibly take into account, the real rights and wrongs underlying the case before them; (3) how antiformalistic their legal reasoning is; (4) how concerned they are about the effects of their decisions on the generality of Corporate actors. The analysis casts a negative light on Milanese (and by extension, Italian) Corporate Law judges. It highlights egregious cases of deference to Corporate insiders, especially with regard to parent-subsidiary relationships. Furthermore, only recently, and in any event still sporadically, have at least a few court's opinions been so drafted as to let the reader understand what the real dispute was and which party had really acted opportunistically. In any case, it appears to be rare for the court to take the substantive reasons for the dispute into any account. Cases are described, in which the court has adduced very formalistic arguments. And finally, there is no sign that the judges care about what signals they send to Corporate actors: they appear to be quite unconcerned about whether their decisions provide the right incentives for directors and shareholders.

Roberta Romano - One of the best experts on this subject based on the ideXlab platform.

  • Market for Corporate Law Redux
    The Oxford Handbook of Law and Economics, 2017
    Co-Authors: Roberta Romano
    Abstract:

    Corporations operate in numerous markets, for example product markets, labor markets, and capital markets. This chapter focuses on the market that is the prerequisite for firms’ successful operation in all other markets, as it is the market that frames their organizational structure and governance: the market for Corporate Law. The first part analyzes the dynamics of the US market for Corporate Law, which can best be characterized as states competing for Corporate charters, along with data pertinent to the question of whom this market organization benefits—managers or shareholders and explanations why DeLaware has had a persistent and commanding position. The second part explains DeLaware’s persistence as the preeminent incorporation state. This is a distinctive feature of US Corporate Law. While there are other federal systems of Corporate Law, a similar “DeLaware” phenomenon does not exist. The chapter concludes with a summary and suggestions for future research.

  • The Market for Corporate Law Redux
    SSRN Electronic Journal, 2014
    Co-Authors: Roberta Romano
    Abstract:

    Corporations operate in numerous markets -- product markets, labor markets, capital markets. This chapter focuses on the market that is the prerequisite for firms’ successful operation in all other markets, as it is the market that frames their organizational structure and governance: the market for Corporate Law. In the United States, two features of the legal landscape have informed such a conceptualization of Corporate Law as a product: (1) Corporate Law is the domain of the states rather than the national government; and (2) under the internal affairs doctrine, the state whose Corporate Law governs a firm is the state of its statutory domicile. This arrangement provides firms with a choice, they can select their governing Law from among the states regardless of their physical location, hence the notion that states offer a product that corporations purchase, by means of incorporation fees (referred to as franchise taxes). For the past century, remarkably, one small state, DeLaware, has been the market leader, serving as the domicile for the overwhelming majority of U.S. corporations. The debate over the market for Corporate Law has focused, in large part, on whether the phenomenon of DeLaware’s dominance is for the better.The first part of the chapter analyzes the dynamics of the U.S. market for Corporate Law, which can best be characterized as states competing for Corporate charters, along with data pertinent to the question of whom this market organization benefits -- managers or shareholders -- and explanations why DeLaware has had a persistent and commanding position. The focus is on the market for public corporations, given their relative importance to the economy, the more extensive literature, and space limitations for this chapter. The second part of the chapter turns to explain DeLaware’s persistence as the preeminent incorporation state. This is a distinctive feature of U.S. Corporate Law. There are other federal systems of Corporate Law, but a similar “DeLaware” phenomenon does not exist. The chapter concludes with a summary and suggestions for future research.

  • Empirical Studies of Corporate Law
    2005
    Co-Authors: Sanjai Bhagat, Roberta Romano
    Abstract:

    This chapter reviews the empirical literature, especially the event study literature, as it relates to Corporate and securities Law. Event studies are among the most successful uses of econometrics in policy analysis. By providing an anchor for measuring the impact of events on investor wealth, the methodology offers a fruitful means for evaluating the welfare implications of private and government actions. This chapter begins by briefly reviewing the event study methodology and its strengths and limitations for policy analysis. It then discusses one of the limitations of more conventional empirical work (cross-sectional analysis), the problem presented by the fact that the characteristics of firms that are studied in relation to each other (such as ownership and mechanisms of Corporate governance) or to firm performance are not exogenous but self-selected by firms. Thereafter it reviews in detail how event studies have been used to evaluate the wealth effects of Corporate litigation. Subsequently, we focus on the methodology's application to Corporate Law and Corporate governance issues, supplemented with discussion of other relevant empirical work as well. Event studies are emphasized because they have played an important role in the making of Corporate Law and in applied Corporate finance and Corporate Law scholarship. The reason for this input is twofold. First, there is a match between the methodology and subject matter: the goal of Corporate Law is to increase shareholder wealth and event studies provide a metric for measurement of the impact upon stock prices of policy decisions. Second, because the participants in Corporate Law debates share the objective of Corporate Law, to adopt policies that enhance shareholder wealth, their disagreements are over the means to achieve that end. A further reason for emphasizing event study data is that they avoid the endogeneity concerns that can limit the results of other modes of empirical research in this area. Because the empirical literature related to Corporate and securities Law is vast, the chapter is necessarily selective and omits important topics and individual contributions in the field.

  • After the Revolution in Corporate Law
    SSRN Electronic Journal, 2005
    Co-Authors: Roberta Romano
    Abstract:

    Corporate Law is a field that underwent as thorough a revolution in the 1980s as can be imagined, in scholarship and practice, methodological and organizational, in which finance and the economic theory of the firm were used to inform the field. The timing of this revolution was not a fortuitous occurrence: it followed a revolution in Corporate finance and the theory of the firm, and was mid-wived in a period of dynamic innovation in Corporate transactions. The transformation in Corporate Law scholarship and practice accomplished by this revolution, has important implications for legal education in the 21st century. There is a need for greater integration of Law school and management school curriculums, to ensure that Law school graduates will obtain the technical proficiency necessary to be at the leading edge of Corporate Law practice and scholarship. In addition, the sea change in Corporate Law scholarship places Law schools with larger faculties and associated with universities with strong finance groups at a competitive advantage in recruiting business Law faculty and in maintaining a first rate business Law program. Corporate Law centers have emerged as an institutional device for smaller elite schools to adapt to this new environment.

  • event studies and the Law part ii empirical studies of Corporate Law
    American Law and Economics Review, 2002
    Co-Authors: Sanjai Bhagat, Roberta Romano
    Abstract:

    This paper is the second part of a review of the event study methodology, which has proved to be one of the most successful uses of econometrics in policy analysis. In this part we focus on the methodology's application to Corporate Law and Corporate governance issues. Event studies have played an important role in the making of Corporate Law and in Corporate Law scholarship. The reason for this input is twofold. First, there is a match between the methodology and subject matter: the goal of Corporate Law is to increase shareholder wealth and event studies provide a metric for measurement of the impact upon stock prices of policy decisions. Second, because the participants in Corporate Law debates share the objective of Corporate Law, to adopt policies that enhance shareholder wealth, their disagreements are over the means to achieve that end. Hence, the discourse can be empirically informed. The paper concludes by sketching the methodology's use in evaluating the economic effects of regulation. While event studies' usefulness for policy analysis is now familiar in the Corporate Law setting, we hope that our two-part review will suggest appropriate applications to other fields of Law.

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