Law Commons^™

Consumer Interest In Corporate Law, David Yosifon

Faculty Publications

This Article provides a comprehensive assessment of the consumer interest in dominant theories of the corporation and in the fundamental doctrines of corporate law. In so doing, the Article fills a void in contemporary corporate law scholarship, which has failed to give sustained attention to consumers in favor of exploring the interests of other corporate stakeholders, especially shareholders, creditors, and workers. Utilizing insights derived from the law and behavioralism movement, this Article examines, in particular, the limitations of the shareholder primacy norm at the heart of prevailing "nexus of contracts" and "team production" theories of the firm. The Article concludes …

The Future Of Shareholder Democracy, Lisa M. Fairfax

Indiana Law Journal

In 2007, the Securities and Exchange Commission (SEC) considered, and ultimately rejected, a rule that would have required corporations to include shareholder-nominated candidates on the ballot. This Article seeks to ascertain the impact of this rejection. On the one hand, the SEC's rejection appears to be a stunning blow to the shareholders' rights campaign. This is because many shareholders' rights advocates have long considered access to the corporate ballot as the "holy grail" of their campaign for increased shareholder power. Such advocates believe that access to the corporate ballot is critical to ensuring that shareholders can participate legitimately in the …

The Italian Chamber Of Lords Sits On Listed Company Boards. An Empirical Analysis Of Italian Listed Company Boards From 1998 To 2006 - Presentation (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo

Paolo Santella

No abstract provided.

The Italian Chamber Of Lords Sits On Listed Company Boards. An Empirical Analysis Of Italian Listed Company Boards From 1998 To 2006 - Presentation (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo

Carlo Drago

No abstract provided.

The Legitimate Rights Of Public Shareholders, Lawrence E. Mitchell

Washington and Lee Law Review

In recent years there has been significant ongoing academic debate over the expansion ofpublic shareholders 'participation rights in corporate governance. The debate has accompanied a dramatic increase in institutional shareholder and hedge fund activism attempting to influence the conduct ofcorporate affairs. The legitimacy ofshareholderp articipationr ights depends upon the actual role public shareholders play in contributing to the corporation's function of providing goods and services and, ultimately, to economic growth and social welfare. Few in the debate have stopped to examine this question. This Article presents original empirical evidence that demonstrates that public shareholders do not, on net, contributec apitalt …

Hedge Funds: The Missing Link In Executive Pay Reform, Robert Illig

Robert C Illig

No abstract provided.

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

Review Article: The New American Corporate Governance In Context, Fenner L. Stewart

Fenner L. Stewart Jr.

If corporate boards are becoming more than “rubber stamps”, then Stephen Bainbridge and his new book are in the middle of a coup d'état in corporate governance. On the other hand, if this shift is not occurring and boards remain “rubber stamps”, then director primacy is no more than managerialism with a twist. Moreover, if director primacy represents the emergence of a new order for American corporate governance, then the merits of maintaining Delaware’s status quo director primacy must be carefully assessed, because the stakes are changing – maybe for the better and maybe for the worse. This article traces …

On The Role And Regulation Of Private Negotiations In Governance, Joseph W. Yockey

Joseph W. Yockey

Developments in corporate law continue to give shareholders greater levels of power over public companies. Instead of using their power to seek changes within firms through such traditional means as proxy contests and litigation, shareholders are increasingly relying on private negotiations with directors as a key component of their governance activities. Regulations enacted in response to the recent financial crisis will likely trigger even more widespread use of negotiations in the years to come. In this Article, I analyze the legal and policy implications generated by the use of private negotiations as a means of corporate governance. I make two …

The Italian Chamber Of Lords Sits On Listed Company Boards. An Empirical Analysis Of Italian Listed Company Boards From 1998 To 2006 - Presentation (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo

Paolo Santella

No abstract provided.

The Italian Chamber Of Lords Sits On Listed Company Boards. An Empirical Analysis Of Italian Listed Company Boards From 1998 To 2006 - Presentation (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo

Carlo Drago

No abstract provided.

Art Deaccessions And The Limits Of Fiduciary Duty, Sue Chen

Duke Law Student Papers Series

Art deaccessions prompt lawsuits against museums, and some commentators advocate using the stricter trust standard of care, instead of the prevailing corporate standard (business judgment rule), to evaluate the conduct of non‑profit museum boards. This Article explores the consequences of adopting the trust standard by applying it to previously unavailable deaccession policies of prominent art museums. It finds that so long as museum boards adhere to these policies, their decisions would satisfy the trust standard. This outcome illustrates an important limitation of fiduciary law: the trust standard evaluates procedural care but cannot assess deaccessions on their merits. Yet this limitation, …

Behind Close Doors: Governance Issues In Private Equity Driven Industries – The Close Corporation Paradox And Its Impact On Private Equity In The Us And Sweden, Kristian Hermanrud

Cornell Law School Inter-University Graduate Student Conference Papers

Publicly traded companies make up only a small fraction of the vast number of corporations operating in the US today. Only about 10,000 companies are traded publicly while there are roughly 20 million corporations doing business in the US. Likewise, over 245 private corporations’ annual revenues exceed $1 billion. Among these, more than twelve employ more than 50,000 employees. Despite the influence on vast amounts of people and capital legislature has, to a large degree, focused on publicly traded companies. The reasons for this stem, in large, back to the years of the market crash in the early thirties and …

The Evolution Of Debt: Covenants, The Credit Market, And Corporate Governance, Charles K. Whitehead

Cornell Law Faculty Publications

No abstract provided.

The (Misunderstood) Genius Of American Corporate Law, Robert B. Ahdieh

Faculty Scholarship

In this Reply, I respond to comments by Bill Bratton, Larry Cunningham, and Todd Henderson on my recent paper - Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance. I begin by reiterating my basic thesis - that state competition should be understood to have little consequence for corporate governance, if (as charter competition's advocates assume) capital-market-driven managerial competition is also at work. I then consider some of the thoughtful critiques of this claim, before suggesting ways in which the comments highlight just the kind of comparative institutional analysis my paper counsels. Rather than a stark choice …

Has Corporate Law Failed? Addressing Proposals For Reform, Antony Page

Michigan Law Review

Part I of this Review discusses the modem "nexus of contracts" approach to corporations and highlights how Greenfield's views differ. Part II examines corporate goals and purposes, suggesting that Greenfield overstates the impact of the shareholder-primacy norm and does not offer a preferable alternative. Part III critiques the means to the ends--Greenfield's proposals for changing the mechanics of corporate governance. Although several of his proposals are intriguing, they seem unlikely to achieve their pro-social aims. This Review remains skeptical, in part because-even given its problems-the U.S. "director-centric governance structure has created the most successful economy the world has ever seen." …

Effects Of Strategic Tax Behaviors On Corporate Governance, Nicola Sartori

Nicola Sartori

This paper addresses agency tensions and conflicts that may emerge between managers (agents) and shareholders (principals) as a result of aggressive tax planning strategies adopted by publicly held corporations. The interactions between corporate governance and taxation are bilateral and biunique: in fact, on one side, the manner in which corporate governance rules are structured affects the way a corporation fulfills its tax obligations; on the other side, the way tax designs (from the government perspective) and related tax strategies (from the corporation perspective) are planned influences corporate governance dynamics. This article investigates such bilateral relationship limiting the analysis to the …

The Legitimate Rights Of Public Shareholders, Lawrence E. Mitchell

Lawrence E. Mitchell

In recent years there has been significant ongoing academic debate over the expansion of public shareholders’ participation rights in corporate governance. The debate has accompanied a dramatic increase in institutional shareholder and hedge fund activism attempting to influence the conduct of corporate affairs.

The legitimacy of shareholder participation rights depends upon the actual role public shareholders play in contributing to the corporation’s function of providing goods and services and, ultimately, to economic growth and social welfare. Nobody in the debate has stopped to examine this question. This paper presents original empirical evidence that demonstrates that public shareholders do not, on …

The Legitimate Rights Of Public Shareholders, Lawrence E. Mitchell

Lawrence E. Mitchell

In recent years there has been significant ongoing academic debate over the expansion of public shareholders’ participation rights in corporate governance. The debate has accompanied a dramatic increase in institutional shareholder and hedge fund activism attempting to influence the conduct of corporate affairs.

The legitimacy of shareholder participation rights depends upon the actual role public shareholders play in contributing to the corporation’s function of providing goods and services and, ultimately, to economic growth and social welfare. Nobody in the debate has stopped to examine this question. This paper presents original empirical evidence that demonstrates that public shareholders do not, on …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer Hill

Jennifer Hill Professor

Who's Afraid of Shareholder Power? A Comparative Law Perspective JENNIFER G. HILL University of Sydney – Faculty of Law; Visiting Professor, Vanderbilt University – School of Law; Research Associate – European Corporate Governance Institute (ECGI) Abstract Shareholder power is back on the regulatory agenda. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate and the Paulson Committee report both raise shareholder power as a serious subject for corporate law reform. Yet, in spite of calls for stronger shareholder rights, there has been great resistance to …

Who’S Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer Hill

Jennifer Hill Professor

Who's Afraid of Shareholder Power? A Comparative Law Perspective JENNIFER G. HILL University of Sydney – Faculty of Law; Visiting Professor, Vanderbilt University – School of Law; Research Associate – European Corporate Governance Institute (ECGI) Abstract Shareholder power is back on the regulatory agenda. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate and the Paulson Committee report both raise shareholder power as a serious subject for corporate law reform. Yet, in spite of calls for stronger shareholder rights, there has been great resistance to …

Subverting Shareholder Rights: Lessons From News Corp's Migration To Delaware, Jennifer Hill

Jennifer Hill Professor

Subverting Shareholder Rights: Lessons from News Corp's Migration to Delaware JENNIFER G. HILL University of Sydney – Faculty of Law; Visiting Professor, Vanderbilt University – School of Law; Research Associate – European Corporate Governance Institute (ECGI) Abstract This article critically analyzes News Corp’s re-incorporation in Delaware against the backdrop of two major contemporary corporate governance debates, relating to shareholder empowerment and convergence theory. Legal scholars opposing greater shareholder power often argue that the lack of shareholder participatory rights under US law provides evidence that such rights are neither desired nor valued by investors. Also, an underlying assumption of convergence theory …

Subverting Shareholder Rights: Lessons From News Corp's Migration To Delaware, Jennifer Hill

Jennifer Hill Professor

Subverting Shareholder Rights: Lessons from News Corp's Migration to Delaware JENNIFER G. HILL University of Sydney – Faculty of Law; Visiting Professor, Vanderbilt University – School of Law; Research Associate – European Corporate Governance Institute (ECGI) Abstract This article critically analyzes News Corp’s re-incorporation in Delaware against the backdrop of two major contemporary corporate governance debates, relating to shareholder empowerment and convergence theory. Legal scholars opposing greater shareholder power often argue that the lack of shareholder participatory rights under US law provides evidence that such rights are neither desired nor valued by investors. Also, an underlying assumption of convergence theory …

Subverting Shareholder Rights: Lessons From News Corp's Migration To Delaware, Jennifer Hill

Jennifer Hill Professor

Subverting Shareholder Rights: Lessons from News Corp's Migration to Delaware JENNIFER G. HILL University of Sydney – Faculty of Law; Visiting Professor, Vanderbilt University – School of Law; Research Associate – European Corporate Governance Institute (ECGI) Abstract This article critically analyzes News Corp’s re-incorporation in Delaware against the backdrop of two major contemporary corporate governance debates, relating to shareholder empowerment and convergence theory. Legal scholars opposing greater shareholder power often argue that the lack of shareholder participatory rights under US law provides evidence that such rights are neither desired nor valued by investors. Also, an underlying assumption of convergence theory …

A Team Production Approach To Corporate Law And Board Composition, Bernard S. Sharfman, Steven J. Toll

Bernard S Sharfman

In today’s world of corporate governance, the board of directors of a publicly held firm (“public company”) will almost certainly be made up of a majority of independent directors. Armed with such independence, it is hoped that corporate boards can better monitor for managerial opportunism and enhance firm performance relative to management dominated boards.

The criterion for selecting outside board members is to choose members who enhance the efficiency of board decision-making. For that to occur, we must have an understanding of how the corporate board of a public corporation is to operate in an efficient manner. As proposed by …

Freedom Or Legal Restriction On Company Chart--Current Assessment And Suggestion For Improvements In The Prc Context, Liying Tan

Liying Tan

Abstract: With the economic reform underway for nearly 30 years and Chinese company law adopted for 14 years, it is an appropriate time to review and critically examine the current company Articles of association state of running in China to determine if there is a need for reform or improvement. Legislations respecting of Articles of association always help to enhance competition circumstance for companies. And greater competition of market would help to resolve the problem of ownership confusion in China where the capital markets are still underdeveloped and market competition is weak. Though company law of China is practically new, …

Fees On Fees In New York - Corporate Agents Beware, George Klidonas

George Klidonas

It is well settled law in New York that corporate officers and directors shall be indemnified for suits brought against them as agents of the corporation. The only limitation is that they are successful on the merits of the case and the corporate agent did not engage in conduct pursuant to bad faith. But what happens when that agent asks the corporation to indemnify them and the corporation refuses? According to a recent Court of Appeals case, if that agent files a subsequent indemnification suit, the agent is not entitled to legal fees for costs arising out of the subsequent …

Trapped In A Metaphor: The Limited Implications Of Federalism For Corporate Governance, Robert B. Ahdieh

Faculty Scholarship

Trapped in a metaphor articulated at the founding of modern corporate law, the study of corporate governance has - for some thirty years - been asking the wrong questions. Rather than a singular race among states, whether to the bottom or the top, the synthesis of William Cary and Ralph Winter’s famous exchange is better understood as two competitions, each serving distinct normative ends. Managerial competition advances the project that has motivated corporate law since Adolf Berle and Gardiner Means - effective regulation of the separation of ownership and control. State competition, by contrast, does not promote a race to …