Corporate Lawyers Research Articles

Corporate lawyers in the USA: pathway to gender parity?

PurposeThe current study aims to analyze the connection between gender disparities and employment in senior legal roles within large American firms. Specifically, this study seeks to uncover whether legal positions in large corporations reproduce inequalities in representation and wages, or whether these roles provide women with a pathway to greater gender parity.Design/methodology/approachInvestigating a large data set of over 2,000 USA public companies over a ten-year period, this study examines the representation of women in senior legal roles, the likelihood of women’s appointment to those roles as a function of the gender composition of the industry and if a wage gap exists between men and women serving in the top legal roles in corporate America.FindingsFindings suggest that rather than moving women closer to gender parity, in-house counsel positions reproduce many of the same inequalities found in large law firms, particularly with regard to representation in senior ranks and compensation.Originality/valueResearch has illustrated that women experience disadvantage in terms of representation, wages and advancement in large law firms and in corporate executive suites. Women lawyers who occupy senior executive roles, however, may benefit relative to their non-legal counterparts given their education and expertise. Their credentials and relative status may contribute in reducing or eliminating gender disparities. This study extends current research by investigating this potential path to greater gender equality.

Legal Transplants, Law Books, and Anglo-American Corporate Fiduciary Duties

This article explores legal transplants and divergences in Anglo-American corporate fiduciary law. The internal management rule in English law acts to restrict judicial interference in corporate governance disputes. It is conceptually similar to the business judgment rule but the two remain distinct. This article explains why Anglo-American corporate law developed differently, despite its shared roots. It pinpoints the origins of the internal management rule to Lord Lindley’s work, which was written in the late nineteenth century. Lord Lindley was central to the development of corporate law in England and other common law jurisdictions within the British Empire but his jurisprudence was not influential in the United States. By this stage in the nineteenth century, the body of American scholarship was sufficiently well developed. Lindley’s text, despite its failure to stimulate American doctrinal development, was well read in the United States. Even so, judges and corporate lawyers in the United States took their inspiration from English law at the time of the founders.

On the Development of (Not So) New Competition Systems – Findings from An Empirical Study

New and recently established systems for regulating competition are often prone to an institutional instability, weak authority, and fragile track-record. Their development negotiates a variety of lifecycles, with various factors impacting their evolution. Relying on competition system development literature to provide a theoretical framework for our research, an empirical qualitative research study was conducted with the aim of examining the competition system in Croatia, in the 1995-2018 period. Main stakeholders were interviewed (in-depth interviews), forty persons in total (NCA officials, judges, practitioners, corporate lawyers, journalists, and academics). Archival research, as well as online research, was conducted to find relevant press reports, and selected NCA quantitative data was analysed. Using content analysis software, original and valuable insights were drawn from this dataset. The aim is to develop a theory that is able to explain the reasons underlying competition system immaturity in Croatia, more than two decades after its creation. The findings include a specific evolutionary path, as well as two underlying issues. Four distinct phases of development were identified (Inception; Withdrawal; Pre-accession; and Post-accession phase). The underlying issues are, first, a lack of institutional and system embeddedness, and second, functional self-restraint on the side of the authority, arguably a result of negative institutional memory. The comprehensive dataset and methodology used, make this research distinctive in broader terms, including being the first such study conducted on Croatia. This paper aims to contribute to the broader literature on competition systems development by examining the relevance of specific factors influencing their evolution.

Coercive Investigation of Corporate Crime: What Investigators Say

This study investigates the use of coercive investigation powers in the context of corporate crime, based on a series of interviews with former Australian Securities and Investments Commission (‘ASIC’) enforcement officials and corporate lawyers. It argues that ASIC’s powers are well equipped to investigate corporate crime, but that ASIC rarely exercises these powers. In this respect, the article draws similar conclusions to the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, but delves further, revealing how coercive powers are used and why they are seldom exercised in corporate criminal investigations. In accounting for this institutional failure, this study implicates a neoliberal agenda of deregulation and austerity that has permitted the regulator to be ‘captured’ by wealthy and powerful regulatees. The analysis is informed by a critical regulation approach to corporate crime that explains corporate or ‘white-collar’ crime and its enforcement through a sociological lens: as a result of unequal social relationships, primarily that of social class, that create disparities in legal and political power.

Constrained Morality in the Professional Work of Corporate Lawyers

In this article, we contribute to sociological literatures on morality, professional and institutional contexts, and morally stigmatized ‘dirty work’ by emphasizing and exploring how they mutually inform one another in lawyers’ work activities. Drawing on interview data with 58 practitioners in the commercial legal industry in Singapore, we analyze how they experience professional and institutional constraints on the expressions of morality in their work. Our findings illustrate how a dominant managerial and economic focus maintains and reproduces a constrained form of morality, limited to instrumental, utilitarian and commercial ends, and subordinated to lucrative client and firm interests. We discuss our findings in terms of the need to research and reform professions in ways that support more rounded and unconstrained moral reflexivity and autonomy in how work is undertaken and valued. This in turn has implications for how organizations and professions might achieve alternative moral institutional orders, and for legal work to avoid the moral and social taints of dirty work.

Editorial

Ten years ago we focused on the project of starting a law degree Corporate at ESAN University, to lay its foundations and put it, finally, available to young people eager to study a career in quality that combines the classic aspects of law with the introduction knowledge of the field of management and business, as well as the area international with an economic perspective. According to the great objective of make it one of the best options to train corporate lawyers, the desire arose to materialize a work that constituted a space for the reflection, analysis and intellectual production of our teachers, students, researchers or jurists in general.

In the Land of Corporate Impunity: Corporate Killing Law in the United States

Since the early 2000s, a number of Western capitalist states, including Australia, Canada, and the United Kingdom, have enacted criminal laws aimed at holding corporations to account for negligently killing workers or members of the public. In the United States, however, the existing respondeat superior (vicarious liability) regime remains intact. Drawing insight from semistructured interviews with corporate lawyers, nongovernmental representatives, union/labor leaders, and academics, I argue the relative impunity for corporate killing in the United States has its roots in corporate power and related beliefs in law and economics scholarship. This article documents how corporate offending is downplayed through hegemonic ideals that corporations are inherently good and law-abiding and any “bad apples” can be dealt with through existing law and market forces. In this respect, the recent rollback of various social protections is not simply a result of Trump’s presidency but instead a product of the neoliberal political, economic, and moral order.

Swiss Tax Aspects of Debt Financing: A Guide on Contractual Arrangements Required to Mitigate Swiss Interest Withholding Tax and Their Practical Implications

Switzerland is one of the few European countries to apply a strict set of complex tax rules to debt financing which may even apply if a debt instrument is issued by a non-Swiss issuer. For corporate and banking lawyers involved in debt financing transactions with a nexus to Switzerland, dealing with Swiss withholding tax rules as well as the corresponding language in the loan documentation and agreements is inevitable. This article focuses on providing an overview to non-tax focused lawyers in order to facilitate the understanding of the Swiss interest withholding tax system applicable to debt financings and to raise awareness of recent changes in practice introducing more relaxed safe harbours. debt financing, Swiss withholding tax reform, tax law

Illegality of Contracts In Ghana; Filling the Gap

The jurisprudence of contract law in many common law countries is a pure borrowing of English law with little or no modifications to reflect changes occasioned by constitutional law. The concept of illegality of contracts in Ghana is no exception. This article therefore advances the argument that the concept of illegal contracts as inherited from common law for Ghana's purposes is moribund. It therefore seeks to expand the scope to cover constitutionally illegal contracts. Contracts cannot be said to be illegal upon a breach of a statute and public policy only; but in the peculiar case of Ghana, the 1992 constitution. The article therefore provides a comprehensive understanding of an unconstitutional; or constitutionally illegal contract and its incidence on the rights of contracting parties. The sole aim is to expand and modernize the teaching and learning of the law in Ghana so far as illegal contracts are concerned. The literature on the topic should reflect this area of the law. It also cannot be gainsaid that, corporate lawyers and people of commerce will have its advantage.

From Corporate Personality to Corporate Governance: The Transformation of International Human Rights Protection in Corporate Governance Structures

This article is concerned with the role of corporate governance systems in the global governance of human rights protection. It departs from the observation that corporations have been more strongly integrated into the system of international human rights protection, but differently than initially anticipated by international lawyers. Rather than moving towards acceptance of corporations as subjects that can or should have international legal personality, corporations become accepted as actors that should instrumentalize their own private governance systems for international human rights protection. To that end, this article develops two interlinked arguments: First, it shows doctrinally how the recent developments in the global governance of business and human rights, notably the UNGP, have led to corporate governance structures becoming instrumentalised as the core and central means for corporate human rights protection at the expense of state-based human rights protection. Second, it is shown how this use of corporate governance for international human rights protection is likely to change the very nature of the international human rights that are supposed to be protected. By means of reviewing recent empirical studies on how corporations incorporate human rights within their governance structure and comparing this to the related understanding in international human rights law, it is revealed how the origin, justification and content of human rights as well as the required processes and remedies to ensure their protection changes in the translation from a state-centric to a corporate-centric understanding. In corporate governance structures, human rights become de-formalized and re-modelled in their meaning and enforcement. This result poses new questions, most importantly whether such a development is to be welcomed or criticised, i.e. whether this ‘corporate understanding’ of human rights should be accepted or whether it is necessary to ‘go back to the starting point’ of a state-centric understanding. The contribution concludes tentatively in a twofold direction. It argues for an inevitably stronger role of private law in this ‘new reality’ of human rights protection, as private law is ultimately the law that may regulate corporations as private actors. Simultaneously, it outlines and highlights the tensions that lawyers –both human rights lawyers as well as private and corporate lawyers – will face when attempting to realise this goal.

Alternatives to In‐Person Directors' Meetings

Edmund Polubinski, Jr. is a corporate lawyer at Lyne, Woodworth & Evarts LLP, a Boston‐based law firm. In this article, he notes the rise in virtual directors' meetings due to the COVID‐19 crisis and discusses how virtual meetings and several other alternatives to in‐person meetings can be a useful tool for many boards.

Beyond Contempt: Injunctions, Land Defense, and the Criminalization of Indigenous Resistance

Claiming that the criminal justice system fails to effectively prohibit protest and civil disobedience, corporate lawyers embrace the pervasive use of injunctions and contempt of court charges in struggles over resource extraction in British Columbia, dubbing this approach the “new normal.” Yet even a cursory review of protest policing in Canada reveals that state intervention in resistance movements is alive and well and that Indigenous peoples and allied social movements are made subject to repression, surveillance, and criminalization through the mechanism of injunctions and contempt, among other legal tools. Based on my direct experience with injunctions and contempt in BC as an activist legal support organizer and a settler ally, this article argues that the reliance on injunctions by extractive industries embroils the courts and police in struggles over public and/or collectively held lands and resources that are nonetheless constructed by the law as private disputes, largely insulated from the reach of constitutionally-derived Aboriginal rights. After tracing the long history of BC’s “injunction habit,” I examine the judicial and policy practices that make the “new normal” claim possible—and show how it is ultimately not accurate. As crucial tools in the legal arsenal of settler-colonial states, injunctions and the subsequent use of contempt charges carve out a distinctly colonial space within Canadian law for the criminalization of Indigenous resistance, facilitating access to resources and lands and easing the operation of extractive capitalism.

Outlooks, Techniques, and Words: Product Design, Practicing Law, and Engaging Students in Legal Practice

This paper is a reflection by a law school teacher and corporate lawyer about learning from the design disciplines. The paper describes how design influences the author’s understanding of and approach to legal documents, his use of visual methods in doing legal work and engaging with students, and concepts and language he uses in talking about legal work and legal practice. The paper suggests that practitioners and teachers need not go all-in on “design thinking” to benefit from design. Instead, they can improve their advice and work-product, and their development support of students and new lawyers, through modest refinements in practice inspired by design mindsets and methods.

The Dynamics of Evolution of the Corporate Governance of Chinese State-Controlled Listed Companies

The wave of reforming corporate governance has been increasingly, strong worldwide since the devastating 2008 financial, crisis. The existing theories by corporate lawyers have offered, two distinct paths for the reform. The convergence theory argues, that with the force of competition, commercial jurisdictions in the, globe will automatically converge towards a single optimal model, of corporate governance sooner or later that is featured with the, shareholder-oriented principle. On the contrary, the divergence, theory insists that the effect of path dependence, especially the, idiosyncratic political traditions or influences, is the key dynamic, force to push the evolution of corporate governance in a certain, commercial jurisdiction. With the proofs of Chinese state-controlled, listed companies (SCLCs), it is demonstrated that the, divergence theory is more convincing and pragmatic. One of the, most important implications of this understanding is that the, improvement of the corporate governance of the SCLCs relies on, the Chinese political reform to a large degree. Convergence, Divergence, Dynamics, Corporate Governance, SCLCs.

One-On-One: Kathleen Noonan

Kathleen Noonan is chief executive officer of the Camden Coalition of Healthcare Providers, a nonprofit, multidisciplinary healthcare innovator in Camden, New Jersey. A former corporate lawyer, Noonan previously was co-director of PolicyLab at Children’s Hospital of Philadelphia, which she co-founded in 2008 to ensure clinical research was connected to and influencing real-world health policy change. Noonan recently spoke with Cait Allen, MPH, director of Engagement at the Patient Safety Authority, about the Camden Coalition’s efforts to improve care for people with complex health and social needs in in the city of Camden, regionally, and across the country.

Designing Dual Class Sunsets: The Case for a Transfer-Centered Approach

Dual class stock (DCS) structures, and their implications for managerial accountability and corporate governance more broadly, have become prevalent concerns for corporate lawyers and policymakers. Recent academic and practitioner debates on DCS have tended to focus less on the general merits and drawbacks of DCS versus one share/one vote structures, and more on the specific common-ground concern as to whether and how such structures are subjected to contingent reversal or “sunset”. This Article compares the relative advantages and disadvantages of time-, ownership- and transfer-centered models of DCS sunset provision. It argues in favor of the transfer-centered model on the grounds that: (a) its specific event-based trigger renders it less arbitrary in application than the time-centered model, and protects against the possibility of founders being prevented prematurely from realizing their long-term strategic vision (as is a risk with the time-centered sunset model); (b) it avoids the moral hazard and other perverse controller incentives that are prone to ensue from time-centered sunsets; and (c) unlike both the time- and ownership-centered models (which are motivated primarily by agency cost concerns), the transfer-centered model is sensitive to the powerful non-financial incentives that controllers typically have to safeguard and promote firm value, even where their corporate control rights significantly outweigh their corresponding cash flow rights. Accordingly, it suggests that the SEC and principal US exchanges should resist recent calls from influential investor-related bodies to mandate time-based sunsets. Instead, domestic policymakers should look overseas to Hong Kong and Singapore, whose respective listing authorities have recently introduced transfer-based sunset requirements for DCS issuers, in considering the most appropriate blueprint for any future regulatory initiatives in this regard.

Gatekeepers, Cultural Captives, or Knaves? Corporate Lawyers Through Different Lenses

Studying the behavior of high-status corporate lawyers is challenging. Much writing (including some of my own) addresses the risk of lawyer enabling of client misconduct by drawing from work in behavioral ethics suggesting that at least some apparent complicity is without full awareness of the impropriety. Is this naive? The first part of this essay pushes harder on consciousness by looking more closely at the lengthy continuum — not a binary yes/no — in the awareness of wrongdoing risk as heavily influenced by the “slippery slope.” Looking at corporate lawyers’ professional responsibility through this lens has some interesting, and as far as I can tell, under-explored implications that help us understand ethical apathy as a distinctive state of mind. The essay’s second part is more hopeful: that such ethical apathy among private practitioners might be offset by greater embrace of the possibility by in-house lawyers. There has emerged in recent years a different lens for the empirical examination of corporate general counsel, using the tools of financial economics to seek correlations (and maybe causation) between identifiable lawyer characteristics and outcomes for the company in terms of (for example) its legal exposure. There is some hopeful news in this research, albeit heavily contingent on the company’s governance structure. The essay ends by suggesting that, while the effort in normative legal ethics to enlist corporate lawyers in more than a legalistic conception of gate-keeping has failed, corporate governance and corporate ethics — surprisingly, perhaps — have some potential to enable gate-keeping general counsels in a way that filters down to the demand for more ethically-sensitive outside counsel as well.

The Revolutionary Potential of Law School

This paper highlights the experiences at law school that transformed a self-interested, consumerist with dreams of becoming a corporate lawyer into a critical legal theorist concerned with social justice, sustainability, and Indigenous sovereignty. While the paper tells the story of one person’s experiences at law school it arguably highlights some key barriers to critical thought and an array of teaching methods and course content within single law courses and across the law program that can bring about radical shifts in consciousness.

Stakeholder Impartiality: A New Classic Approach for the Objectives of the Corporation

The stockholder/stakeholder dilemma has occupied corporate leaders and corporate lawyers for over a century. In addition to the question whose interests should managers prioritize, the question how those interests could or should be balanced has proven equally difficult. To address the latter challenge, this paper advances a doctrinal innovation that is both new and time-honored - to implement a duty of impartiality with regard to directors’ discretion over stakeholder interests. A sub-component of trustees’ duty of loyalty, the duty of impartiality regulates settings in which several beneficiaries have conflicting interests without dictating substantive outcomes, especially not equal treatment. This paper proposes an analogous process-oriented impartiality duty to consider the interests of relevant stakeholders. Stakeholder impartiality is a lean duty whose main advantage lies in its being workable. It can be implemented in legal systems that have different positions on the objectives of the corporation, from Canada’s and India's open-ended stakeholderist approaches to Delaware’s staunch shareholderism.

Making State Civil Procedure

State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse. In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment—this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the relevant sources were not publicly accessible, so this project not only collects important data but in so doing also makes state procedure more accessible. Formal rulemaking authority is only part of the story. At the federal level, scholars have focused on the Advisory Committee on Civil Rules: an elite committee of mostly judges and practitioners, selected by the Chief Justice, that plays a primary role in proposing amendments to the Federal Rules of Civil Procedure. Critics have argued that the advisory commit- tee favors corporate interests, and they have attributed these effects to committee membership. Since the 1960s, there has been a dramatic decline in the share of practitioners on the committee and, simultaneously, an increased homogeneity among its members—i.e., Republican judges and corporate defense attorneys. State advisory committees have gone virtually unstudied. Indeed, in many states, advisory committee membership is not readily accessible. I collected membership information for every state advisory committee, and this Article compares these little-studied state committees to the well-known federal committee. In brief, state committees are notably more diverse. They have far greater representation of practitioners than the federal committee, and those practitioners are more evenly divided between plaintiff- and defense-side lawyers and between individual and corporate lawyers. Partisan effects are less severe among state judge members than at the federal level. State committees have much greater female representation than the federal advisory committee, and at least equal representation of racial and ethnic minorities. But at the same time, many state committees are less accessible to the public than the federal committee is. This Article then makes at least three contributions. First, although these data do not support causal inference, they permit normative engagement with the design of rulemaking institutions. This analysis connects with interdisciplinary re- search on decision-making that suggests that epistemic diversity can produce better and more durable outputs. Second, I argue that civil rulemaking can unite accessibility and diversity. States can be more accessible, and federal rulemaking can be more diverse. Finally, as state procedure becomes more important, this Article helps ensure that relevant information is not limited to those with privileged access and the resources to use it.