Again, For the Want of a Theory: The Challenge of the 'Series' to Business Organization Law

摘要

Various business organization forms exist vis-a-vis not only business organization law but other bodies of law such as tax, regulatory, bankruptcy, securities, contract, agency, and conflicts. The concept of a series of a statutory trust, LLC, or limited partnership similarly exists in that sea of other law. Unfortunately, as has been identified above, the relationship of the individual series as to the organic law from which it is created and the broader body of law has not been, it would seem, examined, much less resolved, even as the concept of this series has been promoted by Delaware and adopted in a number of other jurisdictions. There has been a failure to determine a theoretical underpinning of what is a series: is it a distinct legal entity within the ambit of the organization of which it is a component part, is it a mere administrative function within another business organization, or is it something else? This normative question has not been resolved, and on a piecemeal basis it has been inconsistently answered, likely inadvertently, in conflicting ways across the various business organization acts that to date incorporate series. This failure to clarify what the series is and should be consigns it to chimera status, a classification that makes it difficult if not impossible to ascertain where an individual series should fit, particularly with respect to nonbusiness organization law. Until these issues are resolved in greater (if not absolute) certainty, confusion will continue to reign as to the further use and expansion of the series concept.