March 26, 2004
LLCs: What We Really Need to Know
Posted by Gordon Smith

Bainbridge. Hobbs. Ribstein. All blogging about limited liability companies. Not surprisingly, some of their thoughts are pretty provocative. Steve Bainbridge wants to abolish veil piercing in limited liability companies (and everywhere else!). Bill Hobbs is reporting increased usage of LLCs in Texas (and in many other states). His point in collecting this data: "The data from Texas gives further creedence to the notion that the federal government's monthly Employer Survey, which focuses on large corporations, is not providing an accurate picture of job growth in America today." And Larry Ribstein wonders "why are there still corporations?" While I value all of these commentators and their contributions to our understanding of LLCs, let me tell you the law professor's dirty little secret about the law governing LLCs: it's boring.

When I started teaching in the early 1990s, many of us were wondering whether LLCs would work a revolution in the law of business organizations. By and large, their effect on legal doctrine has been almost invisible. (This is known as an invitation to Larry Ribstein to prove me wrong.) As Bill is attempting to quantify and as Larry's comment implicitly acknowledges, the most important effect of LLCs is not doctrinal, but practical. People love this business form. What we really need to know about LLCs is how people are structuring their relationships. As I have suggested elsewhere, this sort of scholarship has been taken over by financial economists, and lawyers would do everyone a service by taking it back.

P.S. Message to Bill: How about a link for Venturpreneur on HobbsOnline? I know just the place: under "Business Blogs" with Business Pundit, Professor Bainbridge, Venture Blog, etc.

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Comments (2)

1. Posted by Justin Hein on April 1, 2004 @ 6:44 | Permalink

Robert Schnur, adjunct taxation professor at UW Law School, told my class that once state's universally started statutorily approving LLCs, that he started cutting down his lecturing in his taxation courses on S corporations, pretty much to one class in a whole semester, solely because he believed that LLCs would pretty much crowd-out S corporations to oblivion. However, surprisingly to him, that has not occurred, and he has now stretched his teaching on the taxation of S corporations back out to the 2 weeks they had before. Lucky for me, I guess.
One more thing. Professor Schnur (I am not sure if that is the proper way to address him - oh well) told our class of a planning session he once had with a corporate client of his law firm, who was seeking to create a pass-through subsidiary (for whatever reason), and wanted his opinion on what form this new entity should be, considering the corporation's objectives. Professor Schnur gave his opinion that an LLC would clearly be the best form for this new entity - for both tax and non-tax reasons. The corporate client, however, decided otherwise. They chose an S corporation over Professor Schnur's misgivings, and stated that regardless of its pass-through taxation, limited liability properties, in their eyes, it was still too "new" of a creature for them to rely on. Professor Schnur suggested that this irrational apprehension might be shared by others in the corporate world (however, doubtful) and that maybe if there is more case law upholding its limited liability this may lead to more corporate embracement.
Maybe if I forward your above link (see "many other states") to Professor Schnur, he'll start reducing the emphasis on S corporations: at least on his final. It will save me from some additional reading this weekend.


2. Posted by Gordon Smith on April 2, 2004 @ 9:03 | Permalink

Justin, Thanks for this comment. I have often heard this refrain from tax practitioners. It seems to me, however, that we are largely beyond the "LLCs are new" stage. At this point, inertia -- and some lingering differences in self-employment taxes -- might be the better explanation for the continued appeal of S Corporations.

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