Washington and Lee Law Review Volume 61 | Issue 3 Article 4 Summer 6-1-2004 Tax, Corporate Governance, and Norms Steven A. Bank Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Business Organizations Law Commons, and the Tax Law Commons Recommended Citation Steven A. Bank, Tax, Corporate Governance, and Norms, 61 Wash. & Lee L. Rev. 1159 (2004), https://scholarlycommons.law.wlu.edu/wlulr/vol61/iss3/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact
[email protected]. Tax, Corporate Governance, and Norms Steven A. Bank* Abstract This Article examines the use offederal tax provisions to effect changes in state law corporategovernance. There is a growingacademic controversy over these provisions,fueled in part by their popularityamong legislators as a method of addressing the recent spate of corporatescandals. As a case study on the use of tax to regulate corporategovernance, this paper compares and contrasts two measures enacted during the New Deal-the enactment of the undistributedprofits tax in 1936 and the overhaul of the tax-free reorganizationprovisions in 1934-and considers why theformer was so much more controversialand less sustainablethan the latter. While some of the difference can be explained by the different political and economic circumstances surrounding each proposal, this Article argues that the divergence in the degree of opposition can be explained in part by an examination of the extent to which each provision threatened an underlying norm, or longstanding standard,of corporate behavior.