- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
One would expect the answer to the question posed in the title to depend to a significant degree on the extent to which legislatures have developed a unique theory of limited liability companies (LLCs) or have simply borrowed from other forms. Commentators and courts often describe an LLC as a “hybrid” combining certain corporate and partnership features. This characterization invites the notion that in any given case, an LLC should be thought of either as “like a corporation” or “like a partnership.” Viewed this way, an LLC may be unique in the manner it combines certain corporate and partnership features, but is perceived as having few, if any, features that are themselves unique or that, while inspired by the corporate or partnership form, play out in a manner other than they would in the corporate or partnership form. If a provision in a state’s LLC statute was obviously borrowed from the corporate or partnership context, then it should not be surprising to see courts relying on precedent from that context on the issue, and that is often the case. However, the case law provides glimpses of a unique theory of LLCs even where a concept, such as limited liability (a corporate concept) or the charging order (a partnership concept), has been borrowed from another form. If the issue is one that is not explicitly addressed within the parameters of the LLC statute, such as how an LLC or those associated with it are to be treated under another statutory or regulatory scheme, it also should come as no surprise when courts look at how other entities have been treated and whether and to what extent LLCs should be subject to similar treatment. . . .
This Note examines the creation of the MBTA and its special liability statute. It also inspects the amendment of the general limitations statute for the types of claims the special MBTA statute covers. The Note then explores the change from highway development to transit development in Boston’s Southwest Corridor. Then it reviews the agreements Massachusetts and the MBTA made during the planning, development, and construction of the Big Dig. This Note analyzes whether the legislature should revoke the MBTA’s limitations period exception in light of statutory history, the Supreme Judicial Court’s misinterpretation of that history, and the MBTA’s failure to perform its legally and non-legally binding obligations. Given that the Massachusetts legislature did not intend to provide the MBTA with an exception to the limitations period and the MBTA has failed to provide necessary infrastructure upgrades that the state promised, the Joint Committee on Transportation should positively report on and the legislature should pass H.R. 3284 rather than leave it on the floor once more. . . .
When a party loses or destroys evidence, the standard of culpability courts require before they will instruct a jury that they may view the missing evidence as unfavorable to that party varies among the federal circuits. In order to issue such an adverse inference instruction, some courts require a showing of bad faith or intentionality, while others require only negligence. Although courts generally recognize a judge’s wide discretion to impose some form of sanctions for negligent failure to maintain evidence, there are sharp differences of opinion over whether negligence merits jury speculation that the missing evidence would have been damaging to the negligent party’s case. . . .
The Constitution’s Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” In order to protect the defendant’s liberties in the adversarial system contemplated by the Sixth Amendment the mere presence of an attorney on behalf of the accused is not sufficient. The Sixth Amendment promises that an attorney for the accused will be qualified to play an active role in meeting the demands of the prosecution’s case. As such, the Supreme Court recognized that the right to counsel is the “right to the effective assistance of counsel.”
For years, the states and the federal circuits handled the issue of what qualified as ineffective assistance of counsel. In 1984, the Supreme Court established a test to measure all ineffective assistance claims with its decision in Strickland v. Washington. The test consists of two prongs: the attorney’s performance must have been deficient and this deficiency must have materially prejudiced the defense.
A year after deciding Strickland, the Supreme Court in Hill v. Lockhart addressed the question of whether the Strickland test covered pretrial proceedings. The Court specifically stated that a defendant who accepted a plea bargain under an attorney’s advice could prove ineffective assistance by demonstrating attorney error and prejudicial effect. Despite requests for certiorari, the Supreme Court has not yet rendered a decision relating to a habeas petition based on ineffective assistance arising from a foregone plea bargain.
This Note will address the ineffective assistance doctrine as it applies to plea bargaining, with a focus on the limitations of the Strickland test and federal habeas corpus provisions. Part II will discuss the historical foundation of the ineffective assistance doctrine, its application to both accepted and rejected plea bargains, criticism of the Strickland test, and federal habeas corpus legislation. Part III will analyze Supreme Court jurisprudence as it applies to the ineffective assistance doctrine, demonstrate the different approaches state and federal courts use to apply the doctrine to foregone plea bargains, and consider the effect that the Strickland test and federal habeas corpus procedures may play in the differing approaches’ settlement. Part IV concludes that without Supreme Court intervention, the federal circuits will be unable to address directly the doctrinal split within their own jurisdictions. . . .
Today the goal of many physicists, whether working with what are some of the largest machines ever built such as the newly christened Large Hadron Collider or with the rather more simple chalk and blackboard, is to develop a single unified theory that will explain the characteristics of the most elemental particles and integrating the four elemental forces, bringing together Heisenberg’s Quantum Theory and Einstein’s General Relativity. The law of business organizations lacks a similar goal of unification. Rather, we find ourselves continuously mixing, sometimes matching and sometimes not, aspects of business entity law, adding or removing features to various forms of organization without the benefit of a conceptual framework as to whether, across the range of business organization forms, we have made or are making progress. Now the question of “progress” must be distinguished from “motion,” and I submit that it, at a minimum, needs to be debated whether the mixing and recombination of features has been motion without a preconceived determination of what will be progress.
Much is made when discussing the limited liability company (the LLC), the modern partnership, and the limited partnership, the latter two being business forms driven into existence by the need to maintain relevance in a world now containing the LLC, of certain immutable characteristics of unincorporated business organizations. As a result of its being an unincorporated business organization, “an LLC must have this characteristic or that characteristic” has been oft uttered as a guiding principle. But what justification exists for the admonition made that this or that characteristic “must” be present in order that the LLC (or partnership or limited partnership) may be an unincorporated” business organization? In fact it has been all too little, if any. . . .
The law is often like a Slinky: there are two opposing poles, there is tension between the poles, and when one pole pushes out too far from the other, there is a tendency for the tension to pull the deviating pole back or to flip the opposite pole to the front. Similarly, United States business organization law, particularly as applied to partnerships and limited liability companies (LLCs), is a terrain of conflict in which different theoretical approaches strive for dominance. Unlike the laws of physics that control a Slinky, however, there is no state of nature that forces us to any given legal theory, but rather we choose which applies at any time and from time to time. . . .
The purpose of this essay is to analyze the question of whether there is, or should be, a single theory for interpreting and understanding the limited liability company (LLC). Should is the epitome of a normative question and could quickly devolve into an ideological morass without hope of resolution. Fortuitously, the recent thirtieth anniversary of Richard Dawkins’s The Selfish Gene suggests an analytical perspective on the question that may offer observational insight beyond ideological argument.
The perspective suggested by Dawkins’s landmark book is at two levels: (1) the entity level and (2) the law codification level. It is an evolutionary view that the LLC “seeks” success by the proliferation (reproduction and use) of the LLC form by individual firms—that is, from the perspective of the LLC as an artificial organism. This metaphoric perspective is certainly fanciful but is illuminating. First, the change in perspective is consistent with Dawkins’s hope for The Selfish Gene. . . .
The acceptance of the limited liability company (LLC) in 1998 afforded business owners and their advisors with a more straight-forward and flexible way of doing business than was available at that time. Two decades ago, there were two organizational forms under which business owners could obtain pass-through taxation without vicarious liability for the obligations of the organization—the S corporation and the limited partnership with a corporate general partner. The LLC eliminated some of the limitations attendant to each of these forms. Unlike the S corporation, the LLC has no limitation on the number and types of owners, the inability to have special allocations and other sorts of economic relationships, and the necessity to comply with state-law corporate strictures. Unlike a limited partnership with a corporate general
partner, the LLC does not require the maintenance of two organizations, and unlike limited partners, members of an LLC are not subject to potential vicarious liability for participation in management or control of the organization. In some respects it is remarkable that the simplicity and efficiency of the LLC would only come into existence after decades of increasing complexity in both corporate and unincorporated worlds. As Lord Buckley has put it, “it was so simple it evaded me.” . . .
Viewing the title of this Symposium and, in particular, its cadre of famous authors, one is inclined to ask: what is special about the twenty-year-old limited liability company business form to draw such talent to Boston and Suffolk University Law School? The simple answer is that it has been twenty years since the limited liability company went from obscurity to being the business organization of choice for small United States businesses.
Until the release of the Revenue Ruling 88-76, some twenty years ago in August 1988, only two states adopted limited liability company legislation: Wyoming in 1977 and Florida in 1982. The decade leading up to Revenue Ruling 88-76 was troubling for limited liability companies. The intrigue began in 1980 when a private letter ruling classified a Wyoming limited liability company as a partnership rather than a corporation for federal tax purposes. Under then-existing corporate resemblance regulatory classification standards, a Wyoming limited liability company was classified as a partnership because it lacked continuity of life and free transferability of interests. While it also possessed the limited liability and centralized management corporate resemblance factors, the regulations awarded ties in favor of partnership classification. . . .
When Justice Samuel Alito agreed with other members of the Supreme Court that a school principal could constitutionally prohibit a student from holding up a sign with the words “Bong Hits for Jesus,” he thought that the prohibition was limited to speech about illegal drugs. He was wrong. One year later, federal courts have expanded Morse v. Frederick far beyond its facts to include restrictions on student speech advocating illegal conduct and speech threatening school safety. This article suggests that the expansion of Morse has two causes. The first is the Court’s opinion itself. The second is what this article has labeled the “Columbine factor.”
One way to characterize Supreme Court opinions is to divide them into principled or ad hoc. Principled opinions provide lower courts with guidance. Ad hoc opinions are harder to apply in the future and leave lower federal courts with little guidance. The Supreme Court opinion in Morse v. Frederick is an ad hoc opinion. It provides federal courts with little guidance in the area of student speech. . . .