New Article: Kevin V. Tu, Mission-Driven Corporations and Shareholder Profit, forthcoming GW L. Rev., SSRN 2015. Abstract below:
What is the proper role of the corporation in society? This question, in its many iterations, has inspired decades of debate. The normative question of whether corporations should be viewed as purely private enterprises with the singular objective of maximizing shareholder wealth or alternatively as possessing broader obligations to the public may never be settled. However, the legal question of the extent to which the traditional corporate form permits the pursuit of both shareholder profit and the pursuit of a social missions has taken on new found importance. In light of increased interest and demand for corporations that are also good citizens, the legal uncertainty about the existence of a duty to maximize profits is increasingly problematic for corporate managers and shareholders. The widespread addition of the Benefit Corporation as a new legal entity capable of facilitating dual objectives of profit and social missions only adds to the immediacy of the need to resolve this question. While Benefit Corporation statutes provide added certainty for those that elect to organize in that form, the broader impact on existing business entities may be significant. This Article evaluates several unintended consequences that may adversely impact the existing legal framework for traditional corporations, and concludes that the adoption of Benefit Corporation statutes without further efforts to clarify the fundamental question of the extent to which traditional corporations may pursue social missions will result in a more complex and inefficient environment for corporate decision-making.
Let Them Eat Cash – NYTimes.com. (Could be good as an assignment for a class.)
New Article: Lisa T. Alexander, Cyberfinancing for Economic Justice, 4 Wm & Mary Bus. L. Rev. 309 (2013). Abstract below:
This article argues for the socially optimal regulation of online peer-to-peer (P2P) lending and crowdfunding to advance economic justice in the United States. Peer-to-peer lending websites, such as Prosper.com or Kiva.org, facilitate lending transactions between individuals online without the involvement of a traditional bank or microfinance institution. Crowdfunding websites, such as Kickstarter.com, enable individuals to obtain financing from large numbers of contributors at once through an open online request for funds. These web-based transactions, and the intermediary organizations that facilitate them, constitute emerging cyberfinancing markets. These markets connect many individuals at once, across class, race, ethnicity, nationality, space, and time in an interactive and dynamic way. During a time of significant economic distress in the United States, these markets also represent an unprecedented economic development opportunity for historically marginalized economic actors. Yet, no legal scholar has addressed the implications of these developments for economic justice in the United States. Drawing from the fields of law and geography, social networking theory, and comparative institutional analysis, this Article conceptualizes these new markets as “cyberspaces,” similar to geographic spaces, whose laws, norms, and rules will partially determine who will benefit from the economic opportunities that arise in these spaces. The recently enacted Jumpstart Our Business Startups (JOBS) Act does not facilitate substantial distributive justice in crowdfunding markets. The U.S. Government Accountability Office (GAO), which produced a report in response to the 2010 Dodd-Frank Wall Street Reform Act’s mandate that it study the P2P lending industry, has also failed to recommend a regulatory structure that will facilitate economic justice. This Article recommends that a range of federal regulators such as the U.S. Securities and Exchange Commission(SEC), the new Consumer Financial Protection Bureau (CFPB), and the U.S. Treasury Department (Treasury), should collaborate to implement a revised Community Reinvestment Act (CRA) that would promote economic justice in these markets.
Please excuse this self-promoting post but I have two new articles posted to SSRN (one already published, the other accepted for publication) that relate to poverty law.
(1) Ezra Rosser, Poverty Offsetting, 6 Harvard Law & Policy Review 179 (2012). Abstract below:
The market now offers consumers an expanding array of options to offset the harms of their consumption. Travel websites and politicians alike sell the advantages of carbon offsetting. But offsetting options need not be limited to correcting for environmental harm; consumption is also associated with worker exploitation and people struggling with poverty. Individuals can and do respond to such poverty-related harms by altering their consumption decisions and by making voluntary supplemental payments following consumption. This Essay explores the possibility of poverty offsetting. Building upon carbon offsetting’s basic insight—that people should correct for the negative externalities of their consumption—poverty-offsetting institutions would enable individuals to correct for the poverty-related harms associated with their consumption.
(2) Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101 California Law Review __ (forthcoming 2013). Abstract below:
The emerging progressive property school of thought champions and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and non-owners have with property and with each other. Despite these ambitions, so far progressive property scholarship has largely confined itself to questions of exclusion and access. This paper argues that such an emphasis glosses over the race-related acquisition and distribution problems that plague American history and property law. The modest structural changes supported by progressive property scholars fail to account for this racial history and, by so doing, present a limited vision of the changes to property law that progressive scholars should support. Though sympathetic with the progressive property political and scholarly orientation and the policy arguments made regarding exclusion and access, I argue that the first priority of any transformative project of progressive property must be revisiting acquisition and distribution.
Finally, let me add a couple comments about these articles. The first article is a follow-up to my Offsetting and the Consumption of Social Responsibility, 89 Washington University Law Review 27 (2011) article and I owe a huge debt of gratitude to the staff of the Harvard Law and Policy Review for their belief in the topic and their work on the article. THANK YOU! The second article will not be published until 2013 so if you have comments on the paper, please email them to me. =)
Tina Rosenberg, The Path From Charity to Profit, N.Y. Times Opinionator Blog, May 26, 2011.
New Article: Brian Galle, Keep Charity Charitable, 88 Texas L. Rev. 1213 (2010). Abstract below:
In this Article, Professor Brian Galle responds to recent claims, most prominently by Anup Malani and Eric Posner, that much of the work of the charitable sector should be farmed out to for-profit firms. For-profit firms are said to be more efficient because they can offer higher-powered incentives to cut costs. Professor Galle argues, however, that because of the high costs of monitoring and the presence of externalities, low-powered incentives are preferable for firms that produce public goods. Further, allowing some for-profit firms to receive charitable subsidies would raise the cost of producing those goods in government or other firms because it would diminish the “warm glow” workers enjoy from being recognized as self-sacrificing.
-Sorry for the lack of posts this past week — I was away from internet.
Interesting (older) news article: Ray Fisman, “We Are What We Learn: How Professors Can Turn Bleeding Hearts into Capitalists–And Vice Versa,” Forbes, May 5, 2008. The study referred to in the article can be found here.
The Stanford Center for the Study of Poverty and Inequality has posted the audio from its series “Debates about Inequality.” From their webpage:
ADDING INJURY TO INSULT: WHY DO THE POOR GET SICK?
- Sir Michael Marmot, Director, International Institute for Society and Health; Professor of Epidemiology and Public Health, University College of London
- Ralph Catalano, Associate Dean and Professor of Law, University of California – Berkeley
- Listen to: Debate
INEQUALITY AND THE BEAUTIFUL PEOPLE: WHAT SHOULD BE DONE ABOUT DISCRIMINATION BY BEAUTY?
- Deborah Rhode, Ernest W. McFarland Prodessor of Professor of Law, Stanford University
- Richard T. Ford, George E. Osborne Professor of Law, Stanford University
- Listen to: Debate
IS MICROLENDING THE ANSWER?
- Eric Weaver, Executive Director, Lenders for Community Development
- Tracey Pettengill Turner, Founder and General Manager, Microplace
- Listen to: Debate
DOES PHILANTHROPY SHORTCHANGE THE POOR?
- Robert Reich, Associate Professor of Political Science, Stanford University
- Kenneth Prewitt, Carnegie Professor of Public Affairs, School of International and Public Affairs, Columbia University
- Listen to: Debate