Some Central Themes of Business Organizations Law
- Theme 1: Planning
- Theme 2: The Importance of Boundaries
- Theme 3: Divided Ownership
- Theme 4: Limitations of contract and market
- Theme 5: Limiting Liability
- Theme 6: Taxes
- Theme 7: Transitions
- Theme 8: Formalism and rule boundedness
- The limits and benefits of rule-bound, formalistic law
- The Tinker Bell principle (if you believe, she will live)
- The pig-hog rule (pigs get fat, hogs get slaughtered)
- Theme 9: Mixed Metaphors
- Corporate law as property, contract, agency, trust, constitutional/constitutive law
- Corporations as markets, contracts, organizations, political entities, persons
- Theme 10: Federalism
- The dual regulatory structure
- The race to the bottom/top
- Theme 11: The Dog That Didn’t Bark (what we don’t discuss)
- Theme 12: Voluntary Law.
Organizations are created, not born. Who is in, who is out, who has which rights, who runs, are all subject to planning, negotiation, struggle and litigation.
Who is an input and who is a “member” (or who is a “means” and who an “end”) determine how the organization will act. But see Theme 1.
Even as property, this is never simple property
Why is a corporation not simply a market or series of contracts?
Corporate governance v. contract law
Who has to pay for the business’s mistakes? (Or, is this mistake “the business’s mistake”?)
What will be taxed and can it be avoided?
How forms are changed and what the consequences are
Regulatory law, employee relations law, pensions & benefits law, torts law, contract law, environmental law, consumer protection laws, anti-discrimination law, constitutional law, tax law, their effects on business organizations and the effect of business organizations law on them (see Themes 5 and 6)
Planners have an enormous range of choices and are almost never compelled to accept any legal consequence they don’t want (although sometimes there are trade-offs, within business law proper, they are rarely hard). The race to the bottom/top is only the beginning.