Dean Johan Henning presents the South African experience with business entity reform as one part of a coordinated whole. It included, for example, government funding for business, tax reforms, accounting and securities changes. Henning says that these reforms, though multi-faceted, had a uniform purpose: to use small business as an engine to improve the economy and to move “historically and socially disadvantaged groups” into the mainstream of the economy and the society.
These are noble goals and far reaching efforts, and a lot to ask of business entity reform. But because the South African experience was nonetheless successful by all counts, it is worth asking whether we could have—or have had—similar noble motives for business entity reform in the United States in the past decade. The efforts have proceeded on both state and federal levels, in response to many different motivations at many different times. Has the United States, nonetheless, somehow furthered a noble purpose even in this haphazard, piecemeal fashion? To answer this question, I will consider the United States' counterparts to Dean Henning's description of South African initiatives in three principal legal areas: business entity organization, federal income tax, and financial reporting and disclosure.
Each area is a fundamental part of small business policy in the United States. Further, each of these areas had revolutionary developments in the 1990s. In substantive business entity law, we saw the creation of the limited liability company ("LLC") and limited liability partnership ("LLP"), and reform of corporation law to make it more consonant with the needs of closely-held businesses. In tax, we saw the development of the "check-the-box" rules for classification of entities for federal income tax purposes. Finally, in financial reporting and disclosure law, we saw important initiatives to simplify the tasks and ease the burdens on small businesses. In each area, I will review and attempt to reconstruct some of the evident policies. I conclude that in the attempt to provide alternatives for small businesses in the United States, there are now too many alternatives. Dean Henning urges to "think small, first." We have, perhaps, been thinking too small.
Michael, Douglas C., "Business Law Reform in the United States: Thinking Too Small?" (2003). Law Faculty Scholarly Articles. 564.