[go: up one dir, main page]
IDEAS home Printed from https://ideas.repec.org/a/bpj/aelcon/v1y2011i1n4.html
   My bibliography  Save this article

Legal Form and Economic Substance of Enterprise Groups: Implications for Legal Policy

Author

Listed:
  • Strasser Kurt A.

    (University of Connecticut Law School)

  • Blumberg Phillip

    (University of Connecticut Law School)

Abstract
Although conducted world-wide through hundreds of subsidiaries and affiliates, modern large business is, in economic reality, typically a single economically integrated enterprise functioning with a common objective under the control of its parent company. Yet the prevailing legal models are, for the most part, oblivious to this. Mistakenly adopting outmoded concepts inherited from the misty past, these models focus on many separate subsidiary corporations that make up the business and necessarily overlook the larger whole. The result of this outdated view is a mismatch between business reality and legal form which has led so frequently to poor legal and regulatory decision-making and ineffectual public control. While there is change stirring today, overall the law's response to this mismatch has been piecemeal and unsystematic. After reviewing how we got to this unhappy point, this paper will sketch out a new legal theory of enterprise analysis as the basis of modern corporation law to serve the needs of the Twenty-First Century. In some areas it will replace and in other areas it will supplement existing legal models. Enterprise analysis focuses on the implementation of the underlying policies and rules of the specific body of law at issue, such as securities, tax, or bankruptcy, to determine whether the objectives of that body of law are better served in the specific matter by looking to the whole enterprise or, alternatively, to the particular corporate subsidiary entities involved. While overt recognition of this enterprise analysis has been limited, the American legal system today is in fact applying it in numerous areas.

Suggested Citation

  • Strasser Kurt A. & Blumberg Phillip, 2011. "Legal Form and Economic Substance of Enterprise Groups: Implications for Legal Policy," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 1(1), pages 1-30, January.
    • Handle: RePEc:bpj:aelcon:v:1:y:2011:i:1:n:4
    DOI: 10.2202/2152-2820.1000
    as

    Download full text from publisher

    File URL: https://doi.org/10.2202/2152-2820.1000
    Download Restriction: For access to full text, subscription to the journal or payment for the individual article is required.
    File URL: https://libkey.io/10.2202/2152-2820.1000?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    As the access to this document is restricted, you may want to search for a different version of it.

    References listed on IDEAS

    as
    1. Muchlinski, Peter T., 2007. "Multinational Enterprises & the Law," OUP Catalogue, Oxford University Press, edition 2, number 9780199227969.
    Full references (including those not matched with items on IDEAS)

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. Büttner Tim & Thiemann Matthias, 2017. "Breaking Regime Stability? The Politicization of Expertise in the OECD/G20 Process on BEPS and the Potential Transformation of International Taxation," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 7(1), pages 1-17, April.
    2. Biondi Yuri, 2017. "The Firm as an Enterprise Entity and the Tax Avoidance Conundrum: Perspectives from Accounting Theory and Policy," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 7(1), pages 1-9, April.
    3. Weinstein Olivier, 2012. "Firm, Property and Governance: From Berle and Means to the Agency Theory, and Beyond," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 2(2), pages 1-57, June.
    4. Biondi Yuri, 2023. "Corporate Control and Exceptions to Minimum Corporate Taxation: A Step Toward Fairness or Financialisation?," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 13(4), pages 407-415, November.
    5. Thiemann Matthias, 2021. "The Political Economy of Private Law: Comment on ‘The code of capital – how the law creates wealth and inequality’," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 11(1), pages 37-51, March.
    6. Autenne Alexia & Biondi Yuri & Cavalier Georges & Cotiga-Raccah Andra & Doralt Peter & Haslam Colin & Horak Hana & Malberti Corrado & Philippe Denis & Sergakis Konstantinos & Schmidt Jessica, 2018. "The Current Challenges for EU Company and Financial Law and Regulation," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 8(3), pages 1-12, December.
    7. Simon Deakin, 2017. "Tony Lawson's Theory of the Corporation: Towards a Social Ontology of Law," Working Papers wp491, Centre for Business Research, University of Cambridge.
    8. Simon Deakin, 2017. "Tony Lawson’s Theory of the Corporation: Towards a Social Ontology of Law," Cambridge Journal of Economics, Cambridge Political Economy Society, vol. 41(5), pages 1505-1523.
    9. Mocsary George A., 2014. "The Embedded Firm: Corporate Governance, Labor, and Finance Capitalism – Commentary," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 4(2), pages 123-136, July.
    10. Biondi Yuri, 2013. "Hyman Minsky’s Financial Instability Hypothesis and the Accounting Structure of Economy," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 3(3), pages 141-166, June.
    11. Weinstein Olivier, 2013. "The Shareholder Model of the Corporation, Between Mythology and Reality," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 3(1), pages 43-60, January.
    12. Thiemann Matthias, 2014. "The impact of meta-standardization upon standards convergence: the case of the international accounting standard for off-balance-sheet financing," Business and Politics, De Gruyter, vol. 16(1), pages 79-112, April.
    13. Biondi Yuri, 2011. "The Enterprise Entity and the Constitution of the American Economic Republic," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 1(3), pages 1-13, December.
    14. Kuźniacki Błażej, 2017. "Tax Avoidance through Controlled Foreign Companies under European Union Law with Specific Reference to Poland," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 7(1), pages 1-48, April.

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Evaristus Oshionebo, 2018. "Corporations and Nations: Power Imbalance in the Extractive Sector," American Journal of Economics and Sociology, Wiley Blackwell, vol. 77(2), pages 419-446, March.
    2. Stephanie Blankenburg, 2012. "Limited liability," Chapters, in: Jan Toporowski & Jo Michell (ed.), Handbook of Critical Issues in Finance, chapter 27, pages i-ii, Edward Elgar Publishing.
    3. Karin Buhmann, 2016. "Public Regulators and CSR: The ‘Social Licence to Operate’ in Recent United Nations Instruments on Business and Human Rights and the Juridification of CSR," Journal of Business Ethics, Springer, vol. 136(4), pages 699-714, July.
    4. Cote, Christine, 2018. "A chilling effect? Are international investment agreements hindering government’s regulatory autonomy?," LSE Research Online Documents on Economics 108406, London School of Economics and Political Science, LSE Library.
    5. Anna Aseeva, 2018. "(Un)Sustainable Development(s) in International Economic Law: A Quest for Sustainability," Sustainability, MDPI, vol. 10(11), pages 1-30, November.
    6. Boie, Bertram, 2010. "The Protection of Intellectual Property Rights through Bilateral Investment Treaties: Is there a TRIPS-plus Dimension?," Papers 275, World Trade Institute.

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:bpj:aelcon:v:1:y:2011:i:1:n:4. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Peter Golla (email available below). General contact details of provider: https://www.degruyter.com .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.