Law Business and Society

The purpose of this problem set is to encourage you to reflect upon our discussions in LBS. I want you to explore your own thoughts by writing them down. These questions are broad. There are not “correct” answers per se, just more or less thoughtful (and informed) answers. Each answer should be 4-5 pages (double spaced, 1 inch margins) in length.

Choose any 3 of the following 6 questions:

• We often hear talk of corporations as “persons” under the law. What does this mean, practically, and how has it evolved over time from Justice John Marshall, writing in the Dartmouth College v Woodward opinion, to Justice Anthony Kennedy writing in Citizens United? What kind of person is the corporation, and why is this important? Specifically, how has the personhood of corporations evolved over the history of the country, and what role has the Supreme Court played in this evolution? Do you see this evolution as a good or bad development for society? Before attempting to answer, please review carefully the four Powerpoints under the tab “Rights of Corporations” on our Brightspace; we covered all of these in class, and they are important. You may should also review Marshall’s opinion in Dartmouth v Woodward.

• From the standpoint of society, why might it make sense to allow farmers to organize into a growers’ cooperative (eg, Ocean Spray, Land O’ Lakes, Organic Valley) even though – arguably – such an organization constitutes a contract “in restraint of trade,” which would be a violation of the Sherman Antitrust Act? Or, similarly, why might it make sense to let employees, instead of investors, own the business they work for? Or for customers to own a retail store? Use examples and concepts from economics to support your argument. Before attempting to answer, please review carefully the Powerpoints under the tab “Corporation Concepts” on our Brightspace.

• Can the law really create a role – the fiduciary – in which the executive acts as a “reasonably prudent owner” would act? What specific duties does a Fiduciary have, and how can these be enforced? Use examples to illustrate your points. Beyond law, what role do integrity and judgment play in this role? And: What is the relationship between the “business judgment rule” and “fiduciary duty,” and please explain how – taken together – they provide a balanced description of the legal relationship between executives and owners of a limited liability corporation. You should read and refer to Benjamin Cardozo’s opinion in Meinhard v Salmon, as well as the dissenting opinion in this same case (these can be found on Brightspace under the appropriate module.)

• A) In terms of Ownership/Governance, how does a Not-For-Profit firm differ from all the other firms we have discussed in LBS? Please be specific and reasonably complete. Then consider, what sorts of businesses are best performed by not-for-profits, as opposed to for-profit firms? Why is that so? Give three distinct examples in different sectors of the economy to illustrate your ideas. B) Do you believe the U S Supreme Court should have made a distinction between for-profit and not-for-profit firms in Citizens United and/or Hobby Lobby? Why or why not?

• Consider the first sentence of Lincoln’s Gettysburg Address, delivered in November 1863:

Fourscore and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Given that you now have in your possession a color-coded U S Constitution, as well as a copy of the Massachusetts Bay Company Charter, please evaluate this sentence according to logical truth, empirical truth, political truth, and emotional truth at the time that Lincoln gave this speech. Then consider the path of history in the USA from November 1863 onward, with special attention to the Civil War, Amendments to the Constitution, Acts of Congress, and Supreme Court Decisions. In what ways has Lincoln’s statement become closer to the truth since it was first spoken over the dead at Gettysburg in 1863? How might this account for the fact that Lincoln is considered the greatest American President?

• When studying Law, Business, and Society, the two concepts that set the foundation for everything to come are Property & Contracts. Why is this so? How do we effectively define these two terms, and why do they play such an important role in the development of economic systems? Before you answer this, please read the essay “Of Property” by Jeremy Bentham, below:

https://www.laits.utexas.edu/poltheory/bentham/pcc/pcc.pa01.c08.html

When answering this question, think broadly about property as a concept, and consider intellectual property, trademarks, and eminent domain in your response.

Also, consider the “contracts clause,” as found in the Constitution, as it was applied in Marshall’s opinion in Fletcher v Peck.