Berkeley Business Law Journal最新文献

{"title":"Dequity: The Blurring of Debt and Equity in Securitized Real Estate Financing","authors":"G. Poindexter","doi":"10.15779/Z381K32","DOIUrl":"https://doi.org/10.15779/Z381K32","url":null,"abstract":"I. Overview of the CMBS Market ................................................................ 237 II. Bridging the Gap Between Debt and Equity ............................................. 239 A . Preferred equity ................................................................................... 240 B . M ezzanine debt .................................................................................... 240 C . A /B loan s ............................................................................................. 24 1 D. \"Soft Second\" Subordinated debt ........................................................ 241 E. The Equity Debt Continuum ............................................................. 242 I1. Debt/Equity Dichotomy ............................................................................ 242 A . E conom ics ............................................................................................ 243 B . A ccounting ........................................................................................... 244 C . L eg al .................................................................................................... 2 4 5 1. T axation ........................................................................................... 24 5 2. B ankruptcy ....................................................................................... 248 a. Recharacterization: The Exercise of General Equitable Power ... 249 b. Equitable Subordination .............................................................. 250 IV. Great Expectations .................................................................................... 252 A. Firm Governance ................................................................................. 252 B. Contractual obligation .......................................................................... 254 C. When does this all matter? ...................................... . . . .. .. . . .. . .. . . .. . .. . .. . .. . . 255 V. Conclusion: Delineating the Dichotomy in the Future ................................ 260","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133536492","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":"Price, Path and Pride: Third-Party Closing Opinion Practice among U.S. Lawyers (A Preliminary Investigation)","authors":"Jonathan C. Lipson","doi":"10.15779/Z38800S","DOIUrl":"https://doi.org/10.15779/Z38800S","url":null,"abstract":"This article provides a qualitative empirical analysis of third-party closing opinion practice. This practice has recently generated some controversy because, among other reasons, many of the transactions in issue in Enron were supported by closing opinions. Interviews with lawyers around the nation suggest that the traditional academic view of opinion practice - that it promotes economic efficiency - is helpful but incomplete. Many features of closing opinion practice persist despite demonstrable inefficiencies. Moreover, when the practice improves, it is often non-market forces that create the change. Based on these interviews, the article offers some initial thoughts on why the practice exists, and certain of the functions that it may perform.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124601076","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":"Vulnerability and Efficiency (Of What)","authors":"L. Mitchell","doi":"10.15779/Z38J862","DOIUrl":"https://doi.org/10.15779/Z38J862","url":null,"abstract":"In this essay I address the question posed by Bill Klein that formed the basis for the symposium in which this piece appears: What are the criteria for good corporate law? I begin with the presumption that has dominated American thinking about corporations almost from the inception - corporate law should seek to promote efficiency. But there is a second dimension of equal importance that helps to legitimate this first goal. Corporate law should seek to protect those who are vulnerable to the corporation. Efficiency is almost always taken to mean efficiency to the end of wealth maximization. I question this assumption and argue that it is both an undesirable goal from the corporation's perspective as well as an incoherent goal. The proper metric for efficiency is, instead, efficiency in the production of goods and the provision of services. Production of goods and the provision of services is why, after all, we permit corporations to exist. Once the undesirability and incoherence of wealth maximization and the virtues of this new metric become clear, the protection of those vulnerable to the corporation becomes easier to conceptualize and make operational. In the end, however, to be good corporate law, as to be good law generally, we must be honest both about what law is doing and what it is capable of accomplishing. I conclude that law has little if any role to play in creating rules or incentives for corporations to maximize the efficiency of their production of goods and services. The best law can do in this regard is to get out of the way. I further conclude that we have been dishonest in our assertions that corporate law protects shareholders.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133218556","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":"Welfare, Dialectic, and Mediation in Corporate Law","authors":"W. Bratton","doi":"10.15779/Z38FS22","DOIUrl":"https://doi.org/10.15779/Z38FS22","url":null,"abstract":"This essay comments on William Klein's Criteria for Good Laws of Business Association. Klein bids us to cull, modify, and restate a set of proposed criteria for good corporate law so as to state the law's goals more clearly. This essay takes up the invitation. It suggests that the criteria on which we can agree lie at a high level of generality: Corporate law makes us all welfare consequentialists who agree that good corporate law is about encouraging productivity. We differ over the means to that end in debates that have over time evolved away from the ideological and toward the functional. Within this framework, corporate law has two core and generally accepted objectives - freedom of action for management and the minimization of the cost of capital. The firm's legal boundaries follow from these core objectives, and adherence to them triggers resistance to theoretical calls for social responsibility and constituent empowerment. In contrast, corporate law's core subject matter, the terms of the shareholder-manager agency relation, implicates tensions between the dual purposes of freedom of action for management and the minimization of the cost of capital. Corporate law mediates these tensions with open-ended terms and piecemeal resolutions. Although theorists have offered meta level means to resolve the tensions, the practice has never responded by endorsing the theories. Absent an ex ante set of empirically verifiable formulas for productive business organization, this debate will continue unresolved.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128084191","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":"Bankruptcy Law and Inefficient Entitlements","authors":"Irit Haviv-segal","doi":"10.2139/SSRN.612981","DOIUrl":"https://doi.org/10.2139/SSRN.612981","url":null,"abstract":"The question as to the justification of bankruptcy law remains unanswered. The literature tends to emphasize the conflict and inability to compromise between the different normative outlooks of the insolvency law system. A deeper reflection on the existing theories of bankruptcy law reveals, however, that all theories share the same starting point: All theories share the understanding that efficiency considerations justify the enforcement of contractual bankruptcy arrangements. When the social theories call for increased levels of coercion and redistribution, these theories rely on normative considerations of distributive justice and rehabilitation values. They by no means rely on efficiency grounds. This article presents a new theory of bankruptcy law that challenges this shared starting point. The article joins the economic analysis' focus on efficiency considerations. It calls for bankruptcy law rules that would maximize the aggregate value of the debtor's assets to his or her creditors and equity holders. Yet, the analysis shows that under particular circumstances, efficiency-based considerations can support the coercive avoidance of existing entitlements. Accordingly, I will argue that the role of bankruptcy law is to provide the procedural and substantive framework for severing the debtor's economic resources from his or her inefficient liabilities. Finally, the analysis shows how the new theoretical framework explains many of the positive legal arrangements of bankruptcy law. First, it explains why courts prefer reorganization plans over liquidation proceedings. Second, it explains the special priority that is afforded by the law to post-petition creditors. Finally, it explains the arrangements regarding executory contracts.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"103 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114872449","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":"A Framework for the Regulation of Securities Market Intermediaries","authors":"Stephen Choi","doi":"10.15779/Z38HG5K","DOIUrl":"https://doi.org/10.15779/Z38HG5K","url":null,"abstract":"This Essay examines the role of private institutions in promoting strong securities markets. Recent scandals in the United States highlight both the importance and the fallibility of the securities market intermediary institutions to which investors typically turn for protection, such as auditors, analysts, and proxy advisory firms. From the perspective of investor welfare, this Essay discusses the various forms of institution failure and the efficacy of recently promulgated reforms. First, the paper provides a taxonomy of the various forms of securities market intermediary institution failure. Second, the essay compares the failings of the market against the fallibility of regulators. Not all regulations are the same - a series of possible interventions into the securities market exists ranging from merit regulation at one extreme to the provision of optional investor education materials at the other. Some forms of market failures require less intervention (with a corresponding reduced cost of regulatory error and capture). Lawmakers often regulate first and ask questions later, ignoring both the potential downsides of regulation as well as the possibility of market-based alternative solutions to market failures. The presence of market-based solutions allows regulators to intervene less stringently into markets, leaving the market with some degree of choice in how to address particular intermediary defects.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131853505","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":"Economic Organization in the Construction Industry: A Case Study of Collaborative Production Under High Uncertainty","authors":"W. Klein, G. Gulati","doi":"10.2139/SSRN.428600","DOIUrl":"https://doi.org/10.2139/SSRN.428600","url":null,"abstract":"A central question of law and economics is how complex productive activity is initiated, organized, and carried out successfully without central planning. What are some of the most important organizational devices and what is their function? The effort to respond to this type of inquiry has led, among other things, to the dichotomy between transactions within firms and transactions across markets - also referred to as the make-or-buy decision or the outsourcing decision. This dichotomy, leading to explanations of the functions of firms and markets, has proved to be a powerful tool in analysis of economic organization. As with most simple descriptions of complex reality, however, it emphasizes some aspects of reality at the expense of others and is not a good fit in certain settings. One such setting is construction, where the organization of the economic activity (the construction project) is mostly contractual (technically, across markets), but where vital organizational ingredients are networks of relationships as well as collaboration and teamwork, generated in large part by pride, commitment, and reputation. The present paper is a case study that examines those ingredients and others that play, at most, a minor role in traditional thinking about firms and markets. This study also illustrates the notion that bilateral contracts are part of a mosaic of such contracts, with the performance of each dependent on the performance of the others, and contractual relationships exist within an industry in which individual projects are of limited duration but the participants are in for the long haul. Perhaps an even more interesting and important observation is that in construction, and no doubt in other economic activities as well, it is not the firm that is the locus for production. Nor does the idea of market exchanges between firms properly describe the productive process. Instead, production is in the hands of teams of people who are associated with various firms but who operate autonomously with respect to their firms. The teams may perform the functions of firms but they lack the critical firm attribute of hierarchical control. Related to this and also important in at least some settings is the manner of selection of team members: the client/owner may contract with, say, an architectural firm but expects to be working with particular, identified individuals within that firm. This raises the question: when a person contracts for services, what is the role of the individual (e.g., an architect or a lawyer) and what is expected of the firm of which that individual is a member? And what does this tell us about the nature and the boundaries of firms? We also offer some observations about fixed fees versus hourly rates and other contingent compensation.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"18 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120814603","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 Death of a Defense: How Derivatives Spell the End of the Good Faith Defense to Fraudulent Transfer Actions in Business Bankruptcies","authors":"C. Hall","doi":"10.15779/Z38ZG52","DOIUrl":"https://doi.org/10.15779/Z38ZG52","url":null,"abstract":"This article examines the \"good faith defense\" to fraudulent transfer actions in bankruptcy. It argues that investors who have hedged their equity interest in an investment will always qualify as good faith transferees, and thus will be effectively immune from the Bankruptcy Code's fraudulent transfer provisions. It then argues that permitting such arbitrary application of the provisions will increase the cost of capital for solvent firms, a result the Bankruptcy Code is designed to avoid. It concludes that one workable solution to this problem is to eliminate the good faith defense altogether in the context of business bankruptcies. The Death of a Defense","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121124656","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 Architecture of American Corporate Law: Facilitation and Regulation","authors":"M. Eisenberg","doi":"10.15779/Z38DP30","DOIUrl":"https://doi.org/10.15779/Z38DP30","url":null,"abstract":"Introduction ...................................................................................................... 169 I. Two Central Features of Good Law for Publicly Held Corporations ........... 169 II. The Architecture of American Corporate Law ............................................ 176 A. State Statutory Law ................................................................................ 176 B. State Judge-Made Law ........................................................................... 181 C . F ederal L aw ............................................................................................ 18 1 D. Private Ordering Through Soft Law ...................................................... 182 C onclu sion ....................................................................................................... 183","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127527172","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":"Economizing Legal D-B8","authors":"J. Ramseyer","doi":"10.15779/Z38ZG37","DOIUrl":"https://doi.org/10.15779/Z38ZG37","url":null,"abstract":"Implicitly extending Stigler (1977), William Klein proposes a lexicon of twenty-eight generic arguments for normative corporate law scholarship in Criteria for Good Laws of Business Association. He suggests that adopting the lexicon would enhance the efficiency and precision of legal debate. Workable? Hardly. Since when, after all, do we select our colleagues for their communicative efficiency or precision? Yet perhaps Criteria is not about communicative efficiency at all. Perhaps it is about content-and the vacuum at the heart of most legal scholarship-instead. t Mitsubishi Professor of Japanese Legal Studies, Harvard University. I gratefully acknowledge the comments and assistance of Mitu Gulati, Fred McChesney, Eric Rasmusen, Roberta Romano, Mark West, and the participants at the Mercatus Center conference in honor of Bill Klein; and the generous financial assistance of the John M. Olin Center for Law, Economics & Business (\"you used our money to write that?\") at the Harvard Law School. Berkeley Business Law Journal Vol. 2.1, 2005 Economizing Legal D-B8 Economizing Legal D-B8","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130621289","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}