Pub Date : 2017-12-31DOI: 10.36639/mbelr.7.1.trumps
Ryan Clements
This Article reviews and assesses corporate tax reforms advocated by President Donald Trump during his presidential campaign and signed into law since taking office (the Tax Cuts and Jobs Act of 2017), in light of economic theory and the Modigliani-Miller Irrelevance Theorem. The Article argues that companies will adapt policies in light of new taxation measures, thereby impacting the effectiveness of reform. In support of this conclusion, the Article surveys two empirical studies—one in relation to the repatriation efforts of President Bush’s Homeland Investment Act and another in relation to unexpected changes to the taxation of Canadian income trusts—to highlight how reform measures can lead to unanticipated results. The Article then applies the principles of these studies, the general economic theories, and the Modigliani-Miller Irrelevance Theorem to cast uncertainty on the net effect of Trump’s tax reforms. Next, the Article reviews the constitutionality of a “border adjustment tax.” This tax was proposed during the election campaign, but was ultimately jettisoned in the final tax reform bill. Specifically, it analyzes whether such a policy is constitutional or whether it is an unconstitutional direct tax, not apportioned between the States that does not qualify as income under the Sixteenth Amendment. The Article shows that such a constitutional challenge is a difficult undertaking given the substantive arguments in favor of constitutionality, the rarity of judicial intervention in overturning tax laws, and the wide discretion of Congress to levy taxes on income. Finally, the Article concludes by considering the role of economic analysis on constitutional challenges to tax legislation and provides an overview of the arguments, both for and against, utilizing economic analysis in this regard. The conclusion includes a review of the various cases and defining principles (emphasizing the decisions of Judge Richard Posner) where economic analysis has been used in the statutory interpretation of tax laws.
{"title":"Trump's \"Big-League\" Tax Reform: Assessing the Impact of Corporate Tax Changes","authors":"Ryan Clements","doi":"10.36639/mbelr.7.1.trumps","DOIUrl":"https://doi.org/10.36639/mbelr.7.1.trumps","url":null,"abstract":"This Article reviews and assesses corporate tax reforms advocated by President Donald Trump during his presidential campaign and signed into law since taking office (the Tax Cuts and Jobs Act of 2017), in light of economic theory and the Modigliani-Miller Irrelevance Theorem. The Article argues that companies will adapt policies in light of new taxation measures, thereby impacting the effectiveness of reform. In support of this conclusion, the Article surveys two empirical studies—one in relation to the repatriation efforts of President Bush’s Homeland Investment Act and another in relation to unexpected changes to the taxation of Canadian income trusts—to highlight how reform measures can lead to unanticipated results. The Article then applies the principles of these studies, the general economic theories, and the Modigliani-Miller Irrelevance Theorem to cast uncertainty on the net effect of Trump’s tax reforms. Next, the Article reviews the constitutionality of a “border adjustment tax.” This tax was proposed during the election campaign, but was ultimately jettisoned in the final tax reform bill. Specifically, it analyzes whether such a policy is constitutional or whether it is an unconstitutional direct tax, not apportioned between the States that does not qualify as income under the Sixteenth Amendment. The Article shows that such a constitutional challenge is a difficult undertaking given the substantive arguments in favor of constitutionality, the rarity of judicial intervention in overturning tax laws, and the wide discretion of Congress to levy taxes on income. Finally, the Article concludes by considering the role of economic analysis on constitutional challenges to tax legislation and provides an overview of the arguments, both for and against, utilizing economic analysis in this regard. The conclusion includes a review of the various cases and defining principles (emphasizing the decisions of Judge Richard Posner) where economic analysis has been used in the statutory interpretation of tax laws.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"236 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127533929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-31DOI: 10.36639/mbelr.7.1.evaluating
B. Harvey
Financial integration is less pronounced in the ASEAN than other measures of economic integration. This is particularly apparent when compared against other regions that have undergone similar integrative efforts, such as the European Union. Cross-border trade flows, foreign-direct investment, and investment in capital goods outstrip other investment flows. Regional institutional and legal structures governing these investment flows, while limited, present marked achievements towards creating an ASEAN financial community. The gap persists despite suggestions that the Asian Financial Crisis and the Global Financial Crisis (or the North Atlantic Financial Crisis from the Asian and Stiglitz perspective) would accelerate financial regionalism as a way to create a wider safety net against sudden capital outflow or capital stoppage. This paper will endeavor to offer legal, governance, and institutional explanations to explain the impetus for the ASEAN to integrate within itself instead of the Western financial system. It will offer suggestions to augment financial integration by making changes to the most effective initiatives.
{"title":"Evaluating Financial Integration and Cooperation in the ASEAN","authors":"B. Harvey","doi":"10.36639/mbelr.7.1.evaluating","DOIUrl":"https://doi.org/10.36639/mbelr.7.1.evaluating","url":null,"abstract":"Financial integration is less pronounced in the ASEAN than other measures of economic integration. This is particularly apparent when compared against other regions that have undergone similar integrative efforts, such as the European Union. Cross-border trade flows, foreign-direct investment, and investment in capital goods outstrip other investment flows. Regional institutional and legal structures governing these investment flows, while limited, present marked achievements towards creating an ASEAN financial community. The gap persists despite suggestions that the Asian Financial Crisis and the Global Financial Crisis (or the North Atlantic Financial Crisis from the Asian and Stiglitz perspective) would accelerate financial regionalism as a way to create a wider safety net against sudden capital outflow or capital stoppage. This paper will endeavor to offer legal, governance, and institutional explanations to explain the impetus for the ASEAN to integrate within itself instead of the Western financial system. It will offer suggestions to augment financial integration by making changes to the most effective initiatives.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132528390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-31DOI: 10.36639/mbelr.7.1.defective
Christian H. Robertson
In the construction industry, commercial general liability (CGL) insurance is the standard policy for managing property damage risks. Historically, CGL policies do not cover an insured’s own defective construction because the insured controls its own work and can reasonably foresee the damage that may result from defective work. But what about the defective work of an insured’s subcontractor? Practical considerations limit an insured's effective control of every aspect of a subcontractor’s work, and this limitation complicates the insured’s ability to foresee future risks. In 1986, the increasing involvement of subcontractors led general contractors to insist upon protection from subcontractor work risks in CGL policies. The insurance industry agreed upon and created the subcontractor exception. Insurers, however, have claimed that CGL policies exclude coverage for any defective work, including the work of a subcontractor. This Note discusses court decisions rejecting the categorical denial of coverage for any defective work and how courts have found coverage exists where a subcontractor’s defective work is beyond the insured’s effective control and not foreseeable. Over the past 15 years, 23 state supreme courts have ruled that CGL policies cover the defective workmanship of an insured’s subcontractor. To illustrate the trend toward coverage, the Note summarizes a recent Ohio appellate court decision as a case study of the issue.
{"title":"Defective Construction CGL Coverage: The Subcontractor Exception","authors":"Christian H. Robertson","doi":"10.36639/mbelr.7.1.defective","DOIUrl":"https://doi.org/10.36639/mbelr.7.1.defective","url":null,"abstract":"In the construction industry, commercial general liability (CGL) insurance is the standard policy for managing property damage risks. Historically, CGL policies do not cover an insured’s own defective construction because the insured controls its own work and can reasonably foresee the damage that may result from defective work. But what about the defective work of an insured’s subcontractor? Practical considerations limit an insured's effective control of every aspect of a subcontractor’s work, and this limitation complicates the insured’s ability to foresee future risks. In 1986, the increasing involvement of subcontractors led general contractors to insist upon protection from subcontractor work risks in CGL policies. The insurance industry agreed upon and created the subcontractor exception. Insurers, however, have claimed that CGL policies exclude coverage for any defective work, including the work of a subcontractor.\u0000\u0000This Note discusses court decisions rejecting the categorical denial of coverage for any defective work and how courts have found coverage exists where a subcontractor’s defective work is beyond the insured’s effective control and not foreseeable. Over the past 15 years, 23 state supreme courts have ruled that CGL policies cover the defective workmanship of an insured’s subcontractor. To illustrate the trend toward coverage, the Note summarizes a recent Ohio appellate court decision as a case study of the issue.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123939422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-31DOI: 10.36639/mbelr.7.1.volkswagen
N. F. Sharpe
This Article directly challenges the often argued proposition that Germany's two-tier board of directors is superior to America’s single-tier board structure. It argues that regardless of structure, any decision-making body that lacks effective decision-making processes is at significant risk of failure, scandal, and ineffectiveness. Legal scholars and policymakers have largely ignored the connection between decision-making processes and the efficacy of corporate leadership. The Article is the first to examine this underexplored relationship in the context of the German dual-board. Volkswagen’s 2015 emissions scandal provides a vehicle to critically assess the relationship between Germany’s two-tiered board and an effective decision-making process. This Article argues that the structure of Volkwagen’s dual board did not automatically result in an effective decision-making processes. Additionally, an effective decision-making process—the attributes of which can be found in organizational behavior theory—is essential to helping German boards accomplish their legislative mandate. Moreover, it is essential to helping the boards of transnational corporations, which have a wide range of structural variations, effectively govern the organizations for whom they work. In sum, Volkswagen and other German corporations may follow the structural requirements of German corporate law, but without effective processes, German directors are likely to fail in their monitoring and supervisory roles. Without effective processes, directors are watchers asleep at their post, uninformed, dormant, and ineffective in preventing gross failures of corporate integrity. Unless German boards adopt and implement a Process-Oriented Approach, the Volkswagen emission scandal will simply be another mark on a timeline for a century plagued by corporate failure.
{"title":"Volkswagen's Bad Decisions & Harmful Emissions: How Poor Process Corrupted Codetermination in Germany's Dual Board Structure","authors":"N. F. Sharpe","doi":"10.36639/mbelr.7.1.volkswagen","DOIUrl":"https://doi.org/10.36639/mbelr.7.1.volkswagen","url":null,"abstract":"This Article directly challenges the often argued proposition that Germany's two-tier board of directors is superior to America’s single-tier board structure. It argues that regardless of structure, any decision-making body that lacks effective decision-making processes is at significant risk of failure, scandal, and ineffectiveness. Legal scholars and policymakers have largely ignored the connection between decision-making processes and the efficacy of corporate leadership. The Article is the first to examine this underexplored relationship in the context of the German dual-board.\u0000\u0000Volkswagen’s 2015 emissions scandal provides a vehicle to critically assess the relationship between Germany’s two-tiered board and an effective decision-making process. This Article argues that the structure of Volkwagen’s dual board did not automatically result in an effective decision-making processes. Additionally, an effective decision-making process—the attributes of which can be found in organizational behavior theory—is essential to helping German boards accomplish their legislative mandate. Moreover, it is essential to helping the boards of transnational corporations, which have a wide range of structural variations, effectively govern the organizations for whom they work.\u0000\u0000In sum, Volkswagen and other German corporations may follow the structural requirements of German corporate law, but without effective processes, German directors are likely to fail in their monitoring and supervisory roles. Without effective processes, directors are watchers asleep at their post, uninformed, dormant, and ineffective in preventing gross failures of corporate integrity. Unless German boards adopt and implement a Process-Oriented Approach, the Volkswagen emission scandal will simply be another mark on a timeline for a century plagued by corporate failure.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"380 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131909653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-09-28DOI: 10.36639/mbelr.6.2.substantial
Gabriel Godoy-Dalmau
This Note is organized as follows. Part I discusses the historical development of the substantial similarity inquiry and its role in a Plaintiff’s prima facie case of copyright infringement. Part II evaluates more recent developments in the substantial similarity inquiry. Part III argues that the various standards that lower courts have developed are themselves substantially similar to each other. This analysis is in line with the Sixth Circuit’s decision in Kohus. Although largely ignored by the scholarly community, the Sixth Circuit’s decision in Kohus got it right.
{"title":"Substantial Similarity: Kohus Got it Right","authors":"Gabriel Godoy-Dalmau","doi":"10.36639/mbelr.6.2.substantial","DOIUrl":"https://doi.org/10.36639/mbelr.6.2.substantial","url":null,"abstract":"This Note is organized as follows. Part I discusses the historical development of the substantial similarity inquiry and its role in a Plaintiff’s prima facie case of copyright infringement. Part II evaluates more recent developments in the substantial similarity inquiry. Part III argues that the various standards that lower courts have developed are themselves substantially similar to each other. This analysis is in line with the Sixth Circuit’s decision in Kohus. Although largely ignored by the scholarly community, the Sixth Circuit’s decision in Kohus got it right.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115585348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-09-28DOI: 10.36639/mbelr.6.2.business
Tyler J. Replogle
The legal services market is changing. This change has been driven by various factors through the years: expansion of in-house legal departments, globalization (through mergers and outsourcing), technological advances, and the rise of alternative legal service providers. This paper explores these factors in isolation—i.e., discussing each factor separately and distinctly from other factors. Then, this paper seeks to understand these factors together, as products of a legal services market that is evolving from the growth stage into the mature stage. Part I summarizes the early history of law firms, including the rise of the Cravath System through the Golden Era of the 1960s. Part II examines several factors affecting the legal services market, specifically: expansion of in-house legal departments, globalization (through mergers and outsourcing), technological advances, and the rise of alternative legal service providers. Finally, Part III discusses how these factors can also be understood together, as products of a maturing legal services market.
{"title":"The Business of Law: Evolution of the Legal Services Market","authors":"Tyler J. Replogle","doi":"10.36639/mbelr.6.2.business","DOIUrl":"https://doi.org/10.36639/mbelr.6.2.business","url":null,"abstract":"The legal services market is changing. This change has been driven by various factors through the years: expansion of in-house legal departments, globalization (through mergers and outsourcing), technological advances, and the rise of alternative legal service providers. This paper explores these factors in isolation—i.e., discussing each factor separately and distinctly from other factors. Then, this paper seeks to understand these factors together, as products of a legal services market that is evolving from the growth stage into the mature stage.\u0000\u0000Part I summarizes the early history of law firms, including the rise of the Cravath System through the Golden Era of the 1960s. Part II examines several factors affecting the legal services market, specifically: expansion of in-house legal departments, globalization (through mergers and outsourcing), technological advances, and the rise of alternative legal service providers. Finally, Part III discusses how these factors can also be understood together, as products of a maturing legal services market.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130752151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-09-28DOI: 10.36639/mbelr.6.2.implementing
M. Morelli
Technological developments in securities markets, most notably high frequency trading, have fundamentally changed the structure and nature of trading over the past fifty years. Policymakers, both domestically and abroad, now face many new challenges influencing the secondary market’s effectiveness as a generator of economic growth and stability. Faced with these rapid structural changes, many are quick to denounce high frequency trading as opportunistic and parasitic. This article, however, instead argues that while high frequency trading presents certain general risks to secondary market efficiency, liquidity, stability, and integrity, the practice encompasses a wide variety of strategies, many of which can enhance, not inhibit, the secondary trading market’s core goals. This article proposes a regulatory model aimed at maximizing high frequency trading’s beneficial effects on secondary market functions. The model’s foundation, however, requires information. By analyzing more data on how high frequency traders interact with markets, regulators can assess the viability and scope of other potentially worthwhile measures targeting more general market threats. Likewise, regulators can determine who is in the best position to bear supervisory responsibility for particular trading activities: agencies, exchanges, traders, or some combination thereof. Crucially, the model also calls on regulators to share information on a global scale: trading no longer only affects a single exchange, a single asset class, or even a single country. By sharing information, regulators can enact more informed regulations, stabilize secondary markets, and minimize regulatory arbitrage. In short, high frequency trading can be a force for good, but a principled and coordinated effort is needed to ensure it fulfills that potential.
{"title":"Implementing High Frequency Trading Regulation: A Critical Analysis of Current Reforms","authors":"M. Morelli","doi":"10.36639/mbelr.6.2.implementing","DOIUrl":"https://doi.org/10.36639/mbelr.6.2.implementing","url":null,"abstract":"Technological developments in securities markets, most notably high frequency trading, have fundamentally changed the structure and nature of trading over the past fifty years. Policymakers, both domestically and abroad, now face many new challenges influencing the secondary market’s effectiveness as a generator of economic growth and stability. Faced with these rapid structural changes, many are quick to denounce high frequency trading as opportunistic and parasitic. This article, however, instead argues that while high frequency trading presents certain general risks to secondary market efficiency, liquidity, stability, and integrity, the practice encompasses a wide variety of strategies, many of which can enhance, not inhibit, the secondary trading market’s core goals.\u0000\u0000This article proposes a regulatory model aimed at maximizing high frequency trading’s beneficial effects on secondary market functions. The model’s foundation, however, requires information. By analyzing more data on how high frequency traders interact with markets, regulators can assess the viability and scope of other potentially worthwhile measures targeting more general market threats. Likewise, regulators can determine who is in the best position to bear supervisory responsibility for particular trading activities: agencies, exchanges, traders, or some combination thereof. Crucially, the model also calls on regulators to share information on a global scale: trading no longer only affects a single exchange, a single asset class, or even a single country. By sharing information, regulators can enact more informed regulations, stabilize secondary markets, and minimize regulatory arbitrage. In short, high frequency trading can be a force for good, but a principled and coordinated effort is needed to ensure it fulfills that potential.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131260466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-09-28DOI: 10.36639/mbelr.6.2.bitcoins
Andrew Kang
This paper examines a phenomenon largely overlooked in existing literature: as Bitcoin matures into a mainstream consumer payments system with the rise of intermediation and hosted wallet services, it is slowly transforming from a purely decentralized peer-to-peer currency into something that (ironically) more closely resembles the bank-intermediated payment systems of the past. This paper explains how this transformation creates complicated issues of loss allocation not anticipated by Bitcoin’s founder. Further, it argues for the need of an effective legal mechanism to efficiently and fairly allocate losses between intermediaries and users. The first section of this paper will explain how Bitcoin transactions work when users manage their own personal wallets, describing both the transaction mechanics and risks of loss. Then, it will explain how hosted wallet services have changed these mechanics and risks, as well as why a set of loss allocation rules is necessary. Finally, the paper will recommend a set of loss allocation rules based on the policy rationales that drive rules under other existing payment systems law.
{"title":"Bitcoin's Growing Pains: Intermediation and the Need for an Effective Loss Allocation Mechanism","authors":"Andrew Kang","doi":"10.36639/mbelr.6.2.bitcoins","DOIUrl":"https://doi.org/10.36639/mbelr.6.2.bitcoins","url":null,"abstract":"This paper examines a phenomenon largely overlooked in existing literature: as Bitcoin matures into a mainstream consumer payments system with the rise of intermediation and hosted wallet services, it is slowly transforming from a purely decentralized peer-to-peer currency into something that (ironically) more closely resembles the bank-intermediated payment systems of the past. This paper explains how this transformation creates complicated issues of loss allocation not anticipated by Bitcoin’s founder. Further, it argues for the need of an effective legal mechanism to efficiently and fairly allocate losses between intermediaries and users. The first section of this paper will explain how Bitcoin transactions work when users manage their own personal wallets, describing both the transaction mechanics and risks of loss. Then, it will explain how hosted wallet services have changed these mechanics and risks, as well as why a set of loss allocation rules is necessary. Finally, the paper will recommend a set of loss allocation rules based on the policy rationales that drive rules under other existing payment systems law.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123368895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent cases – Burwell v Hobby Lobby Stores and Citizens United chief among them – evince a new understanding of the nature of the corporation and its place in society. Whether a corporation has rights – such as those of religious exercise – is not, however, just a question of legal interpretation. To answer this question requires a theory of group or cultural identity, that is, a theory of how a group may have “culture” separate and apart from those of the individuals that comprise it. And such a theory must address how to understand the meaning of culture when the beliefs of people within the group diverge. However, the Supreme Court’s analysis has fallen short by glossing over this step in the analysis. In Hobby Lobby, the Supreme Court indicated that the question of the religious identity of the corporation might easily be resolved by the semi-democracy of state corporate law: those shareholders and managers controlling the corporation, that is, decide the identity of the corporation. As Justice Ginsburg noted in her dissent, however, in the case of religious belief, things can get fairly gnarly. This Article critiques the Supreme Court’s oversimplified view of how group identity is formed using anthropology as its guide. This anthropological approach argues that the question of corporate “culture” is far more complex than the Court’s jurisprudence acknowledges. This approach requires rethinking the corporate rights doctrine and its assumptions about shareholder democracy. One or the other must fall – either the notion that corporations have cultural rights such as those of a “religion,” or the processes of majority shareholder voting that do not track an ingrained cultural identity.
最近的案例——其中包括Burwell v Hobby Lobby Stores和Citizens United的首席执行官——表明人们对公司的性质及其在社会中的地位有了新的认识。然而，公司是否拥有权利——比如宗教活动的权利——不仅仅是一个法律解释的问题。要回答这个问题，需要一个关于群体或文化认同的理论，也就是说，一个群体如何将“文化”与构成该群体的个人分离开来。这样的理论必须解决如何理解文化的意义，当群体内的人的信仰分歧。但是，大法院的分析忽略了这一步骤，存在不足之处。在Hobby Lobby一案中，最高法院指出，公司的宗教身份问题可能很容易通过国家公司法的半民主来解决:即那些控制公司的股东和经理决定公司的身份。然而，正如金斯伯格大法官在她的异议中指出的那样，在宗教信仰的情况下，事情可能会变得相当棘手。本文批评了最高法院以人类学为指导，对群体身份如何形成的过于简单化的观点。这种人类学方法认为，企业“文化”问题远比最高法院的法理学所承认的要复杂得多。这种方法需要重新思考公司权利原则及其对股东民主的假设。两者必有其一——要么是企业拥有“宗教”等文化权利的观念，要么是不遵循根深蒂固的文化认同的大股东投票程序。
{"title":"Who Speaks the Culture of the Corporation?","authors":"Gwendolyn J. Gordon","doi":"10.36639/mbelr.6.1.who","DOIUrl":"https://doi.org/10.36639/mbelr.6.1.who","url":null,"abstract":"Recent cases – Burwell v Hobby Lobby Stores and Citizens United chief among them – evince a new understanding of the nature of the corporation and its place in society. Whether a corporation has rights – such as those of religious exercise – is not, however, just a question of legal interpretation. To answer this question requires a theory of group or cultural identity, that is, a theory of how a group may have “culture” separate and apart from those of the individuals that comprise it. And such a theory must address how to understand the meaning of culture when the beliefs of people within the group diverge. However, the Supreme Court’s analysis has fallen short by glossing over this step in the analysis. In Hobby Lobby, the Supreme Court indicated that the question of the religious identity of the corporation might easily be resolved by the semi-democracy of state corporate law: those shareholders and managers controlling the corporation, that is, decide the identity of the corporation. As Justice Ginsburg noted in her dissent, however, in the case of religious belief, things can get fairly gnarly. This Article critiques the Supreme Court’s oversimplified view of how group identity is formed using anthropology as its guide. This anthropological approach argues that the question of corporate “culture” is far more complex than the Court’s jurisprudence acknowledges. This approach requires rethinking the corporate rights doctrine and its assumptions about shareholder democracy. One or the other must fall – either the notion that corporations have cultural rights such as those of a “religion,” or the processes of majority shareholder voting that do not track an ingrained cultural identity.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121453204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-12-31DOI: 10.36639/mbelr.6.1.basel
Tengyu Ma
This paper seeks to analyze the new requirements in the Basel III banking regulatory framework and explore their impact on commercial banks’ project finance portfolio. The paper begins with a general introduction of the Basel Accords, followed by an analysis of the changes in the Basel III requirements and their potential impact on project finance, in particular the effects of the liquidity coverage ratio (LCR) and the net stable funding ratio (NSFR). The paper ends with a discussion of alternative sources of project finance funding that emerged as a result of the new regulatory regime.
{"title":"Basel III and the Future of Project Finance Funding","authors":"Tengyu Ma","doi":"10.36639/mbelr.6.1.basel","DOIUrl":"https://doi.org/10.36639/mbelr.6.1.basel","url":null,"abstract":"This paper seeks to analyze the new requirements in the Basel III banking regulatory framework and explore their impact on commercial banks’ project finance portfolio. The paper begins with a general introduction of the Basel Accords, followed by an analysis of the changes in the Basel III requirements and their potential impact on project finance, in particular the effects of the liquidity coverage ratio (LCR) and the net stable funding ratio (NSFR). The paper ends with a discussion of alternative sources of project finance funding that emerged as a result of the new regulatory regime.","PeriodicalId":333345,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115632850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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