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Publication Title

Washington University Law Quarterly

Abstract

The first purpose of this Article is to suggest that more substance may exist in the defective incorporation cases than has been evident heretofore. The Article investigates the reasons for the apparent fuzziness and proposes alternative grounds for explaining the cases explored. In particular, recent learning about the standards that courts apply in piercing the corporate veil offers a different perspective on the rationale underlying defective incorporation doctrines. Because the issues presented in the two sorts of cases are very similar, one naturally wonders whether the criteria judges invoke in piercing the veil decisions are also influential in defective incorporation decisions. Second, the Article suggests that the difficulty of identifying standards in any line of cases, including defective incorporation, may lie as much in deficiencies of legal research techniques as in any judicial "fuzziness." Rarely, if ever, do judges claim to rely on only a single factor in deciding disputes in a given domain of law. Rather, judges announce a number of factors, each of which, all other things equal, will make a decision for one side or the other more likely. With several factors at work simultaneously, predicting judicial outcomes becomes a more complicated task which, therefore, requires more sophisticated statistical techniques. This Article uses one such method, multiple regression, to determine, from the same sample used by Frey, the relative importance of different factors that might explain judges' decisions in defective incorporation cases.

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