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A Jurisdictional Approach to Collapsing Corporate Distinctions

Oh, Peter (2003) A Jurisdictional Approach to Collapsing Corporate Distinctions. Rutgers Law Review, 55 (389).

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Abstract

This article challenges our persistent path dependence on defunct distinctions between corporations and certain limited unincorporated associations. Recent federal tax regulations have inspired proposals for consolidated treatment of all limited business organizations through uniformly based or universally applicable statutes. I contend these proposals are preoccupied with how hybrid organizations such as the limited liability company and the limited liability partnership amalgamate, and thus implicitly preserve, traditional dichotomies between corporations and partnership categorizations as well as entities and aggregate theories. The continued use of these schemes compromises the legal basis for such proposals. By critically examining certain jurisdictional principles, this article reveals inconsistencies that can serve as an entry point for effecting collapse of distinctions between corporations and certain limited unincorporated associations. Specifically, United States citizens domiciled abroad are "stateless" and so cannot sue or be sued in federal courts under the alienage jurisdiction statute. Under the prevailing jurisdictional test, unincorporated associations with stateless members inherit this incapacity to access federal courts for alienage purposes while corporations do not. These radically different outcomes are the product of outmoded and untenable common law and statutory schemes. As a solution, I propose implementing a citizenship test based on domicile for both stateless individuals and unincorporated associations. Such a test would rectify these schemes and provide a framework that can support uniform treatment of all limited business organizations.


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Details

Item Type: Article
Status: Published
Creators/Authors:
CreatorsEmailPitt UsernameORCID
Oh, Peterpoh@pitt.eduPOH0000-0002-0705-404X
Date: 2003
Date Type: Publication
Access Restriction: No restriction; Release the ETD for access worldwide immediately.
Journal or Publication Title: Rutgers Law Review
Volume: 55
Number: 389
Institution: University of Pittsburgh
Schools and Programs: School of Law > Law > Faculty Publications
Refereed: No
Official URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id...
Article Type: Research Article
Date Deposited: 24 Aug 2015 17:33
Last Modified: 25 Aug 2017 04:59
URI: http://d-scholarship.pitt.edu/id/eprint/26036

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