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JournalISSN: 0043-0463

Washington and Lee Law Review 

Washington and Lee University School of Law
About: Washington and Lee Law Review is an academic journal. The journal publishes majorly in the area(s): Supreme court & Statute. It has an ISSN identifier of 0043-0463. Over the lifetime, 861 publications have been published receiving 4860 citations. The journal is also known as: Wash. & Lee L. Rev..


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TL;DR: The Riegle-Neal Interstate Banking and Branching Efficiency Act (IBBEA) of 1994 as discussed by the authors removed any remaining federal restrictions on interstate expansion, but allowed the states considerable leeway in deciding the rules governing entry by out-of-state branches.
Abstract: Table of ContentsI. Introduction 75II. Historical Background on Interstate Branching and IBBEA 77III. IBBEA Interstate Banking and Branching Provisions Determined by Federal Law 88A. IBBEA Provisions with Regard to Interstate Banking 89B. IBBEA Provisions with Regard to Interstate Branching 90C. IBBEA Branching Provisions Determined by Individual States 911. Minimum Age of Target Institution 922. De Novo Interstate Branching 923. Acquisition of Single Branches or Other Portions of an Institution 934. Statewide Deposit Cap 935. Reciprocity 94IV. States' Responses to Interstate Branching Provisions 94A. Minimum Age of Target Institution 95B. Statewide Deposit Cap on Branch Acquisition 95C. De Novo Interstate Branching 96D. Acquisition of Single Branches or Other Portions of an Institution 96E. Reciprocity 96V. Description of State Branching-Restriction Index 97VI. Data and Analysis 97A. Data 97B. Empirical Analysis 98VII. Conclusion 100VIII. Appendix 101One aspect of the American banking system that quickly impresses itself onthe mind of a foreign observer is its fragmented structure. . . . [The] prospective developments in the payments mechanism-electronic transfer of funds, direct deposit of payrolls, and wider use of pre-authorized credit-will reduce the need for customers to visit their banks frequently and, though not resolving the branching controversy, will make it academic.1I. IntroductionWhile much has changed in the last thirty-four years, bank branching has not yet progressed from a controversial issue to a purely academic one. Throughout its history, U.S. banking regulation has constrained bank growth through prohibitions or restrictions on the means of direct and indirect bank expansion both within states (intrastate banking and branching) and between states (interstate banking and branching).2 Although restrictions on intrastate expansion were eliminated through piecemeal changes in legislation over the past several decades, many restrictions remained regarding interstate expansion.The passage of the Riegle-Neal Interstate Banking and Branching Efficiency Act (IBBEA) of 1994(3) removed any remaining federal restrictions on interstate expansion, but allowed the states considerable leeway in deciding the rules governing entry by out-of-state branches.4 As a result, states opposing entry used IBBEA to erect barriers to out-of-state branch entry.IBBEA's removal of federal interstate branching barriers has resulted in staggering interstate expansion. This growth, illustrated in Figure 1, was driven both by consolidation of bank subsidiaries into branch offices and also establishment of de novo branches. …

114 citations

Journal Article
TL;DR: The trend to import the criminal justice model into the domain of immigration law is unmistakable; it has begun to displace what I shall call the civil regulatory model of the immigration law as mentioned in this paper.
Abstract: I. IntroductionThere is an embryonic literature on the growing convergence of two critical regulatory regimes-criminal justice and immigration control.1 As discussed below,2 the two systems intersect at multiple points: Violations of the immigration laws trigger broader, harsher, and more frequent criminal consequences. Indeed, it is no longer rare for refugees seeking asylum to be criminally prosecuted for illegal entry. Conversely, Congress has steadily expanded the list of non-immigration-related crimes that trigger deportation and other adverse immigration consequences, and the sheer numbers of deportations on crime-related grounds have skyrocketed. The underlying theories of deportation increasingly resemble those of criminal punishment. Preventive detention and plea bargaining, longstanding staples of the criminal justice system, have infiltrated the deportation process. Some of the same government actors, including federal sentencing judges and state and local police, are now frequently called upon to perform both criminal and immigration functions simultaneously. Public perceptions of criminals and foreigners have become ever more intertwined. Apprehension and removal of those who violate the immigration laws command increasing priority over programs for the lawful admission of immigrants. And the transfer of immigration functions from the Department of Justice to the Department of Homeland security has changed the politics of immigration in ways that reward officials for prioritizing criminal and other enforcement goals.The trend to import the criminal justice model into the domain of immigration law is unmistakable; it has begun to displace what I shall call the civil regulatory model of immigration law. At first blush, one might expect these trends to be a boon to immigrants, particularly those placed in deportation (now called "removal")3 proceedings. After all, the criminal justice system operates under stringent constitutional and sub-constitutional constraints familiar to all who have taken courses in criminal procedure.For more than a century, however, the courts have uniformly insisted that deportation is not punishment and that, therefore, the criminal procedural safeguards do not apply in deportation proceedings.4 Those and similar principles remain untouched by the gradual importation of criminal justice norms into immigration law. As a result, the criminal justice model has had no discernible benefits for immigrants. It has, however, had some harmful effects, not just on immigrants but on native-born Americans as well.The new literature on convergence chronicles well some of the ways in which the criminal justice model has taken hold in immigration law. But it falls short, I would argue, in failing to showcase the selective, asymmetric nature of this importation process. A pattern has emerged: Those features of the criminal justice model that can roughly be classified as enforcement have indeed been imported. Those that relate to adjudication-in particular, the bundle of procedural rights recognized in criminal cases-have been consciously rejected. Rather than speak of importation of the cnmaial justice model, then, a more fitting observation would be that immigration law has been absorbing the theories, methods, perceptions, and priorities of the criminal enforcement model while rejecting the criminal adjudication model in favor of a civil regulatory regime.To the immigrant, of course, this state of affairs is the worst of both worlds. Is it more broadly desirable nonetheless? This Article argues that it is not. From a procedural standpoint, this asymmetry leaves policymakers with little political appetite for allowing adjudicative fairness and accuracy to temper cost and efficiency concerns. From a substantive standpoint, it leaves them little incentive to balance the government interests in deterring and incapacitating immigration offenders against either the interests of the immigrants themselves or the interests of the U. …

95 citations

Journal Article
TL;DR: In this article, the authors argue that the shareholder wealth maximization norm is both descriptively and normatively deficient and that corporate law should move away from the shareholders' wealth maximisation norm towards a multi-fiduciary perspective.
Abstract: Shareholder wealth maximization long has been the fundamental norm which guides U.S. corporate decisionmakers. Indeed, one rarely finds stronger judicial rhetoric than that used by the court in the now classic case of Dodge v. Ford Motor Co.:A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end. The discretion of directors is to be exercised in the choice of means to attain that end, and does not extend to a change in the end itself, to the reduction of profits, or to the nondistribution of profits among stockholders in order to devote them to other purposes.(1)Our hosts nonetheless posit that these are no longer words to live by, arguing that the shareholder wealth maximization norm is both descriptively and normatively deficient.Frankly, I am not persuaded. Despite a smattering of evidence to the contrary,(2) the mainstream of corporate law remains committed to the principles espoused by the Dodge court. By mainstream I refer of course to Delaware's courts and legislature which are still our premier corporate lawmakers. As it has long done, Delaware law still requires directors to put shareholder interests ahead of those of nonshareholders.(3) At least in Delaware, the shareholder wealth maximization norm thus remains a more accurate description of the state of the law than any of its competitors.(4)A more interesting question is posed when we ask whether shareholder wealth maximization continues to suffice from a normative perspective. In my view, Professor Green brings a valuable perspective to the table on this question.(5) At the end of the day, however, I remain unpersuaded that the principle of shareholder wealth maximization is normatively deficient.As I read his paper, Professor Green views the choice between shareholder wealth maximization and the "multi-fiduciary stakeholder perspective"(6) as a morally neutral one. In other words, he treats the debate as taking place solely on the public policy level.(7) I doubt whether he is correct on this score, but that is a question perhaps best left for another day. It is principally those portions of his paper directed at or relevant to questions of policy, rather than of morality, with which I intend to take issue.Professor Green begins with the premise that shareholders do not own the corporation.(8) From this he concludes that the law can and should move toward a new definition of corporate managers' fiduciary obligations. So stated, I impute both a positive and a normative component to Green's conclusion. The positive component is that corporate law can move away from the shareholder wealth maximization norm. The normative component is that corporate law should do so.Although Green states the normative conclusion somewhat diffidently, devoting most of his attention to his premise and positive conclusion, only his normative conclusion merits detailed analysis. This is so because a neoclassical proponent of the shareholder wealth maximization norm can quite cheerfully concede both Green's premise and his positive conclusion without conceding his normative conclusion. Indeed, the former are wholly consistent with the prevailing neoclassical model of the firm.Nexus of contracts theory visualizes the firm not as an entity, but as an aggregate of various inputs acting together to produce goods or services.(9) Employees provide labor. Creditors provide debt capital. Shareholders initially provide equity capital and subsequently bear the risk of losses and monitor the performance of management. Management monitors the performance of employees and coordinates the activities of all the firm's inputs. The firm is seen as simply a legal fiction representing the complex set of contractual relationships between these inputs. In other words, the firm is treated not as a thing, but rather as a nexus or web of explicit and implicit contracts establishing rights and obligations among the various inputs making up the firm. …

61 citations

Journal Article
TL;DR: The authors examined the key legal characteristics of 375 employment contracts between some of the largest 1500 public corporations and their chief executive officers and examined the actual language of these contracts and asked whether and in what ways CEO contracts differ from standard employment contracts for other workers.
Abstract: I. IntroductionWhat do chief executive officers (CEOs) bargain for in their employment contracts? If you read the labor law literature, you might think that these executives did not have contracts. Prominent legal academics have claimed that CEOs are at-will employees, just like rank-and-file workers.1 If instead you read the corporate law literature, you might think that CEOs get whatever they want in their contracts. Leading legal academics have argued that corporate boards are all too willing to give CEOs fat pay packages and generous severance agreements because the directors are in the CEOs' back pockets.2For all of the ink that has been spilled about CEO contracting processes and outcomes, however, no one has studied the contracts themselves. At the most basic level, do executives have contracts? If so, what are their common legal terms? Are they different from the employment arrangements of other corporate employees? Do these contracts reflect strong CEOs dictating to trembling directors whatever terms they want? Or are these agreements negotiated documents exhibiting provisions that serve both parties' interests well?To answer these questions, we examined the key legal characteristics of 375 employment contracts between some of the largest 1500 public corporations and their chief executive officers. We looked at the actual language of these contracts and asked whether and in what ways CEO contracts differ from standard employment contracts for other workers. Our data provide some empirical answers to several common assertions or speculations in the labor law literature about CEO contracts and shed light on corporate law questions about whether these contracts are negotiated solely to suit the preferences of CEOs or have provisions that also safeguard the employers' interests.We begin by giving an overview of the general characteristics of a CEO employment contract and the process by which one is negotiated. This discussion shows that while some terms of these agreements are boilerplate language, there are intense negotiations over other terms. This background helps put into context the empirical information gleaned from the contracts.Turning then to the contracts and the labor law issues surrounding them, we ask whether CEOs' employment contracts leave them as nothing more than glorified at-will employees. We focus on five contracting issues: (1) the term "just cause" that defines when an executive can be terminated involuntarily with penalties; (2) the "good reason" termination clauses in the contract that permit an executive to leave voluntarily without financial penalties; (3) the noncompetition clauses in the contract; (4) the use of arbitration clauses to resolve contractual disputes; and (5) the contractual restrictions, if any, on the CEO's selling stock options. We also discuss some of the lesser-known economic terms of these contracts, including their length and the level of perquisites given to CEOs.We find much evidence that CEOs are not generally at-will employees. First, with respect to termination provisions, we find that CEOs overwhelmingly contract around the at-will default standard of termination. Of 375 contracts in our sample, only twenty-five expressly declare the contract to be at-will. Thirteen contracts are in essence at-will as they give the CEO the same rights if dismissed with or without cause. Most of the remaining contracts (340) give the CEO greater rights if dismissed without cause. Even the expressly declared at-will contracts tend not to be so. Of those twenty-five contracts, twenty-four give the CEO greater rights for termination without cause. Furthermore, 86.93% of the contracts are for a definite term of years. This is quite different from the protections available to other workers, who are generally at-will employees without contracts.Examining the definition of "just cause" for terminating a CEO, we find that the most commonly listed reasons are willful misconduct, moral turpitude, failure to perform duties, breach of fiduciary duties, and gross misconduct. …

58 citations

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No. of papers from the Journal in previous years
YearPapers
20205
201914
201813
201726
201620
201521