Tax Havens as Producers of Corporate Law

This Review Essay situates Christopher Bruner’s new book, Re-imagining Offshore Finance, within the literature examining the regulation of cross-border finance and highlights its import for thinking about the complicated (and contested) relationship between territorially-configured domestic laws and the increasingly liberal movement of capital. Part I sets out the book’s central thesis. In addition to highlighting Bruner’s novel framework identifying the factors that propel certain small jurisdictions into becoming magnets for cross-border finance, I outline the limits of the framework in accounting for the stability in the overall demand for the commercialization of sovereignty, only one of which is facilitating international tax evasion. Part II examines the rise of offshore financial havens as they relate to the territorially-configured domestic rules — a subject that has yet to attract the attention that it deserves. While the rise of offshore financial havens has been viewed as typifying the continued dominance of territorial sovereignty, I show that it is private choice and juridical rules that have been privileged over strictly territorial conceptions of the law. I use recent developments in corporate law and bankruptcy law to show that domestic laws governing certain financial transactions are already ceding to privately-curated juridical rules, albeit not without resistance

Anonymous Companies

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations. This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies—business enterprises with owners who are practically untraceable to the general public. Anonymous companies were essential to launch the first abortion drug in the United States at a time when no pharmaceutical company was willing to touch it for fear of backlash by anti-abortion activists. Anonymous companies today serve as “race-neutral” public faces of Black entrepreneurs who conceal their race in order to more equitably compete in a marketplace infected with systemic racism. And anonymous companies are ubiquitous over the internet, enabling survivors of intimate partner violence to become financially self-sufficient entrepreneurs without fear of harassment or stalking. This Article thus reveals privacy as a prevalent, yet under-theorized function served by modern business entities. In documenting their use in today’s commercial life, this Article makes two contributions to the literature. First, it disrupts prevailing accounts concerning the function of business entities, departing from scholarly accounts that predominantly conceptualize business entities as transactional costreducing devices that facilitate the pooling of capital for business ventures. This Article enriches these accounts by showing how protecting the identity of capital contributors from forced public disclosure—what it refers to as identity shielding—can advance important economic and humanistic interests. While the doctrine of limited liability encourages entrepreneurial risk-taking by limiting the amount of capital risk borne by the firm’s equity owners, identity shielding encourages the flow of capital to business enterprises by preserving the business owner’s ability to control knowledge about oneself to the world. Second, it develops a policy framework that enables a more nuanced discussion balancing the interest in ameliorating the harm inflicted by anonymity, as well as harnessing the promise of identity shielding in promoting entrepreneurial risk-taking and human collaboration

Anonymous Companies

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations. This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies—business enterprises with owners who are practically untraceable to the general public. Anonymous companies were essential to launch the first abortion drug in the United States at a time when no pharmaceutical company was willing to touch it for fear of backlash by anti-abortion activists. Anonymous companies today serve as “race-neutral” public faces of Black entrepreneurs who conceal their race in order to more equitably compete in a marketplace infected with systemic racism. And anonymous companies are ubiquitous over the internet, enabling survivors of intimate partner violence to become financially self-sufficient entrepreneurs without fear of harassment or stalking. This Article thus reveals privacy as a prevalent, yet under-theorized function served by modern business entities. In documenting their use in today’s commercial life, this Article makes two contributions to the literature. First, it disrupts prevailing accounts concerning the function of business entities, departing from scholarly accounts that predominantly conceptualize business entities as transactional cost-reducing devices that facilitate the pooling of capital for business ventures. This Article enriches these accounts by showing how protecting the identity of capital contributors from forced public disclosure—what it refers to as identity shielding—can advance important economic and humanistic interests. While the doctrine of limited liability encourages entrepreneurial risk-taking by limiting the amount of capital risk borne by the firm’s equity owners, identity shielding encourages the flow of capital to business enterprises by preserving the business owner’s ability to control knowledge about oneself to the world. Second, it develops a policy framework that enables a more nuanced discussion balancing the interest in ameliorating the harm inflicted by anonymity, as well as harnessing the promise of identity shielding in promoting entrepreneurial risk-taking and human collaboration

Delaware\u27s New Competition

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law. This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector lawyers who draft legislation for these lawmakers, foreign nations enable American corporations to opt out of mandatory rules that are axiomatic features of American corporate law. This Article documents an emerging international market for corporate law that has largely been undetected by legal scholars who presuppose an interstate market. While acknowledging the potential benefits offered by foreign nations competing to attract American corporations, this Article highlights a series of countervailing considerations that render any claims about gains from international jurisdictional competition premature at best

Delaware\u27s Global Competitiveness

For about a hundred years, Delaware has been the leading jurisdiction for corporate law in the United States. The state, which deliberately embarked on a mission to build a haven for corporate law in the early twentieth century, now supplies corporate charters to over two thirds of Fortune 500 companies and a growing share of closely held companies. But Delaware’s domestic dominance masks the important and yet underexamined issue of whether Delaware maintains its competitive edge globally.This Article examines Delaware’s global competitiveness, documenting Delaware’s surprising weakness competing in the emerging international market for corporate charters. It does so principally by studying the corporate law preferences of foreign firms listed in the United States. While Delaware was once a popular jurisdiction for foreign corporations listing in American stock markets, it has dramatically fallen out of favor in recent years. This is particularly true among firms based in China that have recently made their debut to American investors. For instance, the Cayman Islands is now the juridical home to over half of Chinese companies listed in American stock markets, compared to Delaware’s 5%.By exploring the paradox of Delaware’s domestic popularity and international unpopularity, this Article makes three contributions to the literature. First, it presents data indicating that Delaware’s dominance of the corporate charter market may be a parochial, American phenomenon. Second, it develops a theory to explicate why foreign firms operating within vastly different market environments may be averse to Delaware’s corporate governance paradigm. Finally, it adds to the corporate law convergence debate, counseling against blind exporting of Delaware corporate law to foreign nations

Regulating Offshore Finance

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies. While the prevailing account has examined offshore financial havens as tax havens that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable business entities to opt out of otherwise mandatory domestic regulatory laws. Specifically, recent U.S. Supreme Court cases restricting the geographic scope of federal statutes create a space for commercial actors to circumvent regulation by incorporating in offshore jurisdictions. Under this jurisprudence, financial transactions completed through offshore commercial entities are often, albeit not categorically, seen as extraterritorial transactions beyond the reach of federal statutes. This makes it increasingly difficult for private litigants to bring statutory claims designed to protect the workings of the market, even in cases that are predominantly connected to the United States. After documenting how offshore jurisdictions enable commercial entities to opt out of federal regulatory statutes, this Article critiques the Supreme Court\u27s recent extraterritoriality jurisprudence that risks breeding a cottage industry of private regulatory evasion

Recovering Risky Technologies Using the Almost Ideal Demand System: An Application to U.S. Banking

We argue for a shift in the focus of modeling production from the traditional assumptions of profit maximization and cost minimization to a more general assumption of managerial utility maximization that can incorporate risk incentives into the analysis of production and recover value-maximizing technologies. We show how this shift can be implemented using the Almost Ideal Demand System. In addition, we suggest a more general way of measuring efficiency that can incorporate a concern for the market value of firms' assets and equity and identify value-maximizing firms. This shift in focus bridges the gap between the risk-incentives literature in banking that ignores the microeconomics of production and the production literature that ignores the relationship between production decisions and risk.

Efficient banking under interstate branching

Nationally chartered banks will be allowed to branch across state lines beginning June 1, 1997. Whether they will depends on their assessment of the profitability of such a delivery system for their services and on their preferences regarding risk and return. The authors investigate the probable effect of interstate branching on banks' risk-return tradeoff, accounting for the endogeneity of deposit volatility. If interstate branching improves the risk-return tradeoff banks face, banks that branch across state lines may choose a higher level of risk in return for higher profits. The authors find distinct efficiency gains due to geographic diversity.Branch banks ; Interstate banking

Safety in numbers? Geographic diversification and bank insolvency risk

The Riegle-Neal Interstate Banking and Branching Efficiency Act, passed in September 1994 and effective June 1, 1997, will allow nationally chartered banks to branch across state lines. This act will remove impediments to interstate expansion and permit the consolidation of existing interstate networks ; What will be the impact of this legislation on bank performance and bank safety? Removing impediments to geographic expansion should improve the risk-return tradeoff faced by most banks. However, this paper argues that economic theory does not tell us whether an improvement in the risk-return tradeoff will lead to a reduction in the volatility of bank returns or in the probability of insolvency. ; The authors investigate the role of geographic diversification on bank performance and safety using bank holding company data. The authors find that an increase in the number of branches lowers insolvency risk and increases efficiency for inefficient bank holding companies; an increase in the number of states in which a bank holding company operates increases insolvency risk but has an insignificant effect on efficiency. Branch expansion raises the risk of insolvency for efficient bank holding companies, while an increase in the number of states has an insignfiicant effect on insolvency riskBank failures ; Interstate banking

Recovering risky technologies using the almost ideal demand system: an application to U.S. banking

Using modern duality theory to recover technologies from data can be complicated by the risk characteristics of production. In many industries, risk influences cost and revenue and can create the potential for costly episodes of financial distress. When risk is an important consideration in production, the standard cost and profit functions may not adequately describe the firm's technology and choice of production plan. In general, standard models fail to account for risk and its endogeneity. The authors distinguish between exogenous risk, which varies over the firm's choice sets, and endogenous risk, which is chosen by the firm in conjunction with its production decision. They show that, when risk matters in production decisions, it is important to account for risk's endogeneity. ; For example, better risk diversification that results, for example, from an increase in scale, improves the reward to risk-taking and may under certain conditions induce the firm to take on more risk to increase the firm's value. A choice of higher risk at a larger scale could add to costs and mask scale economies that may result from better diversification. ; This paper introduces risk into the dual model of production by constructing a utility-maximizing model in which managers choose their most preferred production plan. The authors show that the utility function that ranks production plans is equivalent to a ranking of subjective probability distributions of profit that are conditional on the production plan. The most preferred production plan results from the firm's choice of an optimal profit distribution. The model is sufficiently general to incorporate risk aversion as well as risk neutrality. Hence, it can account for the case where the potential for costly financial distress makes trading profit for reduced risk a value-maximizing strategy. ; The authors implement the model using the Almost Ideal Demand System to derive utility-maximizing share equations for profit and inputs, given the output vector and given sources of risk to control for choices that would affect endogenous risk. The most preferred cost function is obtained from the profit share equation and we show that, if risk neutrality is imposed, this system is identical to the standard translog cost system except that it controls for sources of risk. ; The authors apply the model to the U.S. banking industry using 1989-90 data on banks with over $1 billion in assets. The authors find evidence that managers trade return for reduced risk, which is consistent with the significant regulatory and financial costs of bank distress. In addition, the authors find evidence of significant scale economies that help explain the recent wave of large bank mergers. Using these same data, the authors also estimate the standard cost function, which does not explicitly account for risk, and they obtain the usual results of esentially constant returns to scale, which contradicts the often-stated rationale for bank mergers.Banks and banking ; Economies of scale