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Corporations in 100 Pages
No full textThis book is a primer on corporate law for law students and anyone else interested in the foundations of corporate law. The book provides a self-contained, accessible presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors and other stakeholders, major transactions (M&A), and parallels with alternative entities including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated yet short and simple enough for a quick read.https://scholarship.law.bu.edu/books/1353/thumbnail.jp
FATCA, the U.S. Congressional Black Caucus, and the OECD Blacklist
No full textIt may no longer be fashionable to refer to the United States as a melting pot, but it remains an incredibly heterogenous country. Both in terms of the race of those born there and the national origin of its immigrants, the United States has long enjoyed the benefits and burdens that come with diversity.1 Its diversity can make even a seemingly simple story complicated, producing unexpected twists and surprise endings. This article tells a tale in which diversity helped change the face of international tax policy.
The United States has long wielded great power in international taxation. From the controlled foreign corporation to the Foreign Account Tax Compliance Act, the United States has proven time and again that when it wants to it can fundamentally alter the rules of the international tax game. And from a distance that outsized influence suggests a monolith. But the view from up close reveals something quite different.
Over the last two decades, a pair of dramatic international tax policy shifts highlights how — and how much — race matters in the United States. At two pivotal moments in the last quarter-century of international tax policy, Black leaders in the United States did the unexpected. And the results both in the United States and around the world proved as powerful as they would ultimately be misunderstood
Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation
Get PDFIn the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of private-law agency arrangements. There are good reasons to think that the Constitution draws on private-law background norms for much of its meaning, and the subdelegation problem is an excellent candidate for elaboration in private-law terms. Thus, when Chief Justice John Marshall in 1825 drew a distinction between impermissible grants of discretion on “important subjects” and permissible grants of discretion on matters of “less interest,” his approach was far more structured, grounded in precedent , and law-like than may appear at first glance. It drew on principles and case law developed in settings ranging from powers of appointment in wills, in which the holder of the power tries to designate another person to exercise it, to the lack of privity between merchants and subdelegees in the absence of express authority on the part of the agents to subdelegate power, to the lack of authority of factors and supercargoes to entrust sale of goods to subagents without the express consent of their principals. Thus, judges worried about the open-ended character of a non-subdelegation doctrine need not run away from Chief Justice Marshall’s classic formulation. They simply need to flesh out its private-law background. There was abundant law regarding subdelegation in the eighteenth and nineteenth centuries, and the Constitution’s subdelegation principle is grounded in that law
Externalities and the Common Owner
Get PDFDue to the embrace of modern portfolio theory, most of the stock market is controlled by institutional investors holding broadly diversified economy-mirroring portfolios. Recent scholarship has revealed the anti-competitive incentives that arise when a firm’s largest shareholders own similarly sized stakes in the firm’s industry competitors. This Article expands the consideration of the effects of common ownership from the industry level to the market-portfolio level, and argues that diversified investors should rationally be motivated to internalize intra-portfolio negative externalities. This portfolio perspective can explain the increasing climate change related activism of institutional investors, who have applied coordinated shareholder power to pressure fossil fuel producers into substantially reducing greenhouse gas emissions.While institutional investors have protested their ability to influence firm-level supply and pricing decisions in the service of muting competition, they are more willing to advertise their role in seeking emissions reduction commitments, even admitting they are for the benefit of portfolio returns. These commitments, however, affect product supply and imply market power in much the same way, and provide further evidence that institutional investors are able to influence managerial decisions at the firm level for the benefit of their broader portfolio. This insight requires the amendment of the traditional view that diversified investors are “rationally reticent” and lack the incentive to engage in monitoring of firm behavior. It additionally challenges a fundamental norm of corporate governance law: the theory of shareholder primacy rests on the premise that shareholders homogeneously seek to maximize corporate profits and share value. This Article shows that in certain circumstances a majority of minority shareholders may direct the firm away from a profit-maximizing objective
What Becomes a Legendary Constitutional Campaign Most? Marking the Nineteenth Amendment at One Hundred
Get PDFWhat most becomes a landmark anniversary in the legendary campaign by women (and some men) for woman suffrage that, in 1920, led to Congress’s ratifying the Nineteenth Amendment to the U.S. Constitution? This framing of the question alludes to the famous, decades-long Blackglama advertising campaign, “What becomes a legend most?,” which (beginning in 1968) enlisted the charisma of famous women (and some men) to glamorize mink coats. This Essay also appeals to the dual meanings of legendary -- “of, relating to, or characteristic of legend” and “well-known, or famous” -- and argues that the campaign for woman suffrage is the stuff of legend in both senses. This is evident in challenges surrounding how best to represent the anniversary in public monuments (such as the recently unveiled Women’s Rights Pioneers Monument in New York City\u27s Central Park) and public exhibitions: Which legendary suffragists are included? Who is left out? What role do legends play in the commemoration? The abundance of invocations of “the Nineteenth” in the buildup to 2020 and in the commemoration itself suggests multiple answers about how best to commemorate it. Some answers look back in time, urging critical reflection on what we do and do not really know about the campaign for woman suffrage and insisting that a deeper, intersectional examination teaches sobering but necessary lessons about inclusion and exclusion and the challenges of coalition building. Such examination also yields valuable role models of agency and action to inspire action in present-day struggles for women’s rights. Other answers focus on the present day and unfinished business: the next hundred years should bring a renewed commitment to advancing women’s political power in the next century, in particular, that of Black women, who stand out for their high levels of political participation yet who have not received sufficient party encouragement and resources as candidates for office. Another forward-looking answer urges attention to how gendered models of who should be a political leader and stereotypes about race and gender work against women’s full participation in governance. This Essay comments on these and other answers offered by the contributors to a symposium in Boston University Law Review on the centenary of the Nineteenth Amendment: Professors Nadia Brown and Danielle Casarez Lemi, Lolita Buckner Inniss, Kelly Dittmar, Paula Monopoli, Virginia Sapiro, and Katharine Silbaugh
Against Progress: Interventions About Equality in Supreme Court Cases About Copyright Law
Get PDFThis symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.In brief, Against Progress describes how in the 20th century intellectual property legal doctrine and scholarship focused on economic models of progress, which were framed in terms of wealth accumulation and market theories facilitating economic growth. The rise of digital technology that facilitates all sorts of copying at the turn of the century puts pressure on the anti-copying regulations defining intellectual property. Combine this technological development with the focus on economic rationales and incentive-based reasons for exclusive rights, and federal intellectual property rights expand to regulate more of the behavior that technology enables. The result is an increase in the amount of intellectual property itself: more copyrighted works, more patents and more trademarks.Despite expanding scope and the rise of “more” intellectual property, Against Progress explains how turn-of-the century intellectual property practice challenges the “progress as more” paradigm. Through various methodological interventions – close reading of cases, doctrinal analysis, and various qualitative empirical methods – Against Progress demonstrates how contemporary accounts of intellectual property are not primarily anchored by claims of “more” or in economic growth terms. Instead, creative and innovative practices (and disputes concerning them) revolve around adjacent values and principles central to our constitutional system such as equality, privacy, and community or general welfare.In this short essay, I provide only two examples of the shifting narratives at play in intellectual property disputes that are refocusing concerns from economic resource allocation to fundamental values that ground the rule of law in the United States. These examples are drawn from the chapter on equality, which traces themes of equal treatment and substantive equality doctrine through intellectual property cases at the United States Supreme Court. This essay concerns two controversial copyright cases, but the chapter discusses cases about patent
Understanding Violent-Crime Recidivism
Get PDFPeople convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those measures’ effectiveness—and yet many governors and officials have hesitated due to fears of violent-crime recidivism. In addition, the population imprisoned for violent offenses also exhibits sharper demographic disparities than the general prison population across both age and race. Consequently, reforms that target those convicted only of nonviolent crimes will likely exacerbate existing inequalities in the criminal justice system. In this Article, we start from the premise that better understanding individuals convicted of violent crimes is essential to overcoming resistance to the idea of releasing them earlier—and in particular, to address the fear that this population will almost certainly reoffend violently. We review existing studies and offer new empirical analysis to inform these questions. Although estimates vary, our synthesis of the available evidence suggests that released violent offenders, especially homicide offenders who are older at release, have lower overall recidivism rates relative to other released offenders. At the same time, people released after previous homicide convictions may be more likely to commit new homicides than otherwise comparable releasees, although probably not by as much as most would expect
Financing Failure: Bankruptcy Lending, Credit Market Conditions, and the Financial Crisis
Get PDFWhen contemplating Chapter 11, firms often need to seek financing for their continuing operations in bankruptcy. Because such financing would otherwise be hard to find, the Bankruptcy Code authorizes debtors to offer sweeteners to debtor-in-possession (DIP) lenders. These inducements can be effective in attracting financing, but because they are thought to come at the expense of other stakeholders, the Code permits these inducements only if no less generous a package would have been sufficient to obtain the loan.Anecdotal evidence suggests that the use of certain controversial inducements — I focus on roll-ups and milestones — skyrocketed in recent years, leading critics to question whether DIP lenders were abusing their power. Lenders, however, respond that DIP loan terms simply reflect economic conditions: When credit is tight, as it was in recent years because of the Financial Crisis, more sweeteners are needed to induce lending.Using a hand-collected dataset reflecting contractual detail in DIP loan agreements, I examine the relationship between changes in credit availability and DIP loan terms before, during, and after the Crisis. As one might expect, I find that ordinary loan provisions like pricing and reporting covenants are sensitive to changes in credit availability. By contrast, I also find that the incidence of so-called “extraordinary provisions” has no statistically meaningful relationship with changes in credit availability. These findings have important implications for bankruptcy policymakers and judges struggling to evaluate whether extraordinary DIP lending inducements are necessary. Too-generous loan terms come at the expense of junior claimants and may distort the bankruptcy process in favor of senior claimants
Equity in Health: Sexual and Reproductive Health and Rights
No full textThis chapter examines the evolution of international human rights standards for health equity, focusing on sexual and reproductive health and rights (SRHR). A rich history of women’s rights advocacy informs the international commitments that define SRHR. Over time, sexual and reproductive health rights have been incorporated into development agendas, clarified by treaty bodies, expanded to include sexual minorities, and implemented (or not) at the national level. With the progressive trajectory of SRHR increasingly uncertain, there are continuing challenges to the realization of SRHR, including the continuing criminalization of those who seek out sexual and reproductive health services, the rise of right-wing populism in direct opposition to feminist advancements, and the pushback against lesbian, gay, bisexual, and transgender (LGBT) rights. Given rising opposition to sexual rights, safe abortion, and sexuality education, creative stealth advocacy will be required to advance SRHR
Legal and Business Risks in Health-Care Transactions
No full textThe Covid-19 pandemic has triggered immediate and lasting changes to the health-care industry. As the U.S. economy reopens and health-care transactions rekindle, parties to mergers, acquisitions, joint ventures, and affiliations will need to evaluate new legal and business risks related to the pandemic. This article discusses five key topics that organizations should consider when evaluating health-care transactions during and after the Covid-19 crisis