Washington & Lee Legal Studies Research Paper Series最新文献

{"title":"The Corporation's Intrinsic Attributes","authors":"Christopher M. Bruner","doi":"10.1017/9781316536384.005","DOIUrl":"https://doi.org/10.1017/9781316536384.005","url":null,"abstract":"Numerous treatises, casebooks, and other resources commonly present concise lists of attributes said to be intrinsic to the modern corporation and/or essential to its economic utility. Such descriptions of the corporate form often constitute introductory matter, conditioning how students, professionals, and public officials alike approach corporate law by presenting a straightforward framework to distinguish the corporate form from other types of business entities. There are two significant problems with such frameworks, however, from a pedagogic perspective. First, these frameworks describe the corporation by reference to purportedly fixed intrinsic attributes, conflicting sharply with the flux and dynamism that have in fact characterized the history of corporate law. Second, these frameworks differ markedly from each other in how they characterize the corporation's attributes, each embodying a contestable perspective on the nature of the corporate form. The diversity of perspectives that such inquiry reveals calls into question the degree to which we can validly deduce a single correct or optimal division of power between boards and shareholders, degree of regard for shareholder interests, and/or degree of liability exposure for boards and shareholders, based exclusively on premises purportedly intrinsic to corporate law itself - that is, without express appeal to external policy considerations and related regulatory fields. These matters map onto three core issues of corporate law and governance - power, purpose, and risk-taking, respectively - and the inability to resolve them by reference to the corporation's purportedly intrinsic features suggests that re-conceptualizing the corporate form might facilitate more effective assessment of its capabilities. This chapter undertakes that project. Section I begins with an historical discussion of the corporation's emergence and early deployment for business in the United Kingdom and the United States. Section II turns to various contemporary descriptions of the corporation's intrinsic attributes presented in modern reference materials, exploring their commonalities, differences, and theoretical implications. Section III explores the impossibility of resolving core issues of power, purpose, and risk-taking by reference to such conceptions of the corporate form, providing three US examples that map onto these respective issues - the scope of shareholders' bylaw authority, the degree of board discretion to consider non-shareholder interests in hostile takeovers, and the regulation of financial risk-taking following the recent crisis. Each illustrates the necessity of resort to political discourse - a reality underscored through comparison with the United Kingdom, which reveals substantial divergence on such issues notwithstanding broad similarities between the US and UK corporate governance regimes. The chapter concludes, in Section IV, by proposing that we refrain from describing the corporate form b","PeriodicalId":114021,"journal":{"name":"Washington & Lee Legal Studies Research Paper Series","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127487386","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}

{"title":"The Stewardship of Trust in the Global Value Chain","authors":"Kish Parella","doi":"10.2139/ssrn.2557030","DOIUrl":"https://doi.org/10.2139/ssrn.2557030","url":null,"abstract":"Global governance has not yet caught up with the globalization of business. As a result, our headlines provide daily accounts of the extent and consequences of these “governance gaps.” The ability of corporations to evade state control has also contributed to an unusual, even frightening, phenomenon: corporations are governing like states. Some public governance functions traditionally delivered by state actors are now increasingly undertaken by transnational corporate actors. One area that is experiencing this substitution is dispute resolution of human rights. Corporations and other business enterprises, individually or collectively, are creating a variety of grievance mechanisms to address human rights and other conflicts associated – even caused – by their business activities. When these roles are fulfilled by state actors, we rely on procedural fairness to guide, even discipline, decision-makers. Procedural fairness improves our faith in decision-makers and their institutions even if we might disagree with the outcomes reached. What does procedural fairness mean when it is undertaken by a corporation in relation to quasi-public governance? What factors might improve its disciplining potential on decision-makers and increase the likelihood that the watching public, local and global, might accept the outcomes reached? This Article addresses this challenge by developing a framework for procedural fairness that is based upon human rights research and contract law. The result is a strategy for trust-building that can improve the quality of governance performed by the transnational business sector.","PeriodicalId":114021,"journal":{"name":"Washington & Lee Legal Studies Research Paper Series","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115194943","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}

{"title":"Atrocity, Punishment, and International Law","authors":"M. Drumbl","doi":"10.1017/CBO9780511611100","DOIUrl":"https://doi.org/10.1017/CBO9780511611100","url":null,"abstract":"In \"Atrocity, Punishment, and International Law,\" Mark Drumbl rethinks how perpetrators of atrocity crimes should be punished. After first reviewing the sentencing practices of courts and tribunals that censure genocide, crimes against humanity, and war crimes, he concludes that these practices fall short of the goals that international criminal law ascribes to punishment, in particular retribution and deterrence. This raises the question whether international prosecutorial and correctional preferences are as effective as we hope. Drumbl argues that the pursuit of accountability for extraordinary atrocity crimes should not uncritically adopt the methods and assumptions of ordinary liberal criminal law. He calls for fresh thinking to confront the collective nature of mass atrocity and the disturbing reality that individual membership in group-based killings is often not maladaptive or deviant behavior but, rather, adaptive or conformist behavior. This book deploys a bold, and adventurously pluralist, interpretation of classical notions of cosmopolitanism to advance the frame of international criminal law to a broader construction of atrocity law and a more meaningful understanding of justice. Drumbl concludes by offering concrete reforms. He urges contextual responses to atrocity that welcome bottom-up perspectives, including restorative, reparative, and reintegrative traditions that may differ from the adversarial Western criminal trial.","PeriodicalId":114021,"journal":{"name":"Washington & Lee Legal Studies Research Paper Series","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131919716","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}

{"title":"The Ambiguous Significance of Corporate Personhood","authors":"David K. Millon","doi":"10.2139/ssrn.264141","DOIUrl":"https://doi.org/10.2139/ssrn.264141","url":null,"abstract":"Political controversies over the place of the business corporation in American society and the appropriate objectives of corporate law have been going on for a long time. Proponents of shareholder primacy have argued that shareholder wealth maximization should guide corporate law. Critics of this position emphasize shareholder primacy's social costs and urge appropriate reforms. A standard form of argument in these debates has been to start with an assertion about the corporation's personhood. From this descriptive claim a normative result is then supposed to follow. This Essay, part of a symposium on \"Competing Conceptions of Personhood\", surveys the principal instances of this kind of argument in American legal history. We see that, despite its rhetorical attractiveness, the argument turns out to be indeterminate. This is because \"the corporation\" can be plausibly described in different ways (as an aggregation of natural persons or as a separate entity, for example). In addition, the various characterizations themselves can support opposing normative agendas. The corporate person, for example, may be seen as an individual entitled presumptively to freedom from governmental interference or as a citizen owing responsibilities to the community. Similarly, if the corporation is a mere aggregation rather than a distinctive person in its own right, opponents of regulation can characterize it as a web of private market interactions while communitarians can use that model to support law reforms based on stakeholder theories. Ultimately the relations among participants in corporate activity and between them and the state raise questions about individual responsibility, wealth distribution, and state power. I conclude that inconclusive arguments about corporate personhood fail to address these important questions forthrightly.","PeriodicalId":114021,"journal":{"name":"Washington & Lee Legal Studies Research Paper Series","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129408663","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}