Posts Tagged ‘Leo Strine’

The Difficulties of Reconciling Citizens United with Corporate Law History

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Friday February 27, 2015 at 9:00 am
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Editor’s Note: The following post is based on a recent article earlier issued as a working paper of the Harvard Law School Program on Corporate Governance, by Leo Strine, Chief Justice of the Delaware Supreme Court and a Senior Fellow of the Program, and Nicholas Walter, associate in the litigation department at Wachtell, Lipton, Rosen & Katz. The article, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, is available here. Related research from the authors includes Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and Citizens United, discussed on the Forum here. Research from the Program on Corporate Governance about corporate political spending includes Shining Light on Corporate Political Spending by Lucian Bebchuk and Robert Jackson, discussed on the Forum here, Corporate Political Speech: Who Decides? by Lucian Bebchuk and Robert Jackson, available here. and Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and Citizens United by Leo Strine and Nicholas Walter, discussed on the Forum here.

Citizens United has been the subject of a great deal of commentary, but one important aspect of the decision that has not been explored in detail is the historical basis for Justice Scalia’s claims in his concurring opinion that the majority holding is consistent with originalism. In this article, we engage in a deep inquiry into the historical understanding of the rights of the business corporation as of 1791 and 1868—two periods relevant to an originalist analysis of the First Amendment. Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate. The article is available on SSRN at http://ssrn.com/abstract=2564708.

Citizens United v. FEC struck down McCain-Feingold’s restraints on electoral expenditures by corporations. In his concurring opinion, Justice Scalia argued that the decision could be justified through the originalist approach to constitutional interpretation. In particular, Justice Scalia asserted that there was “no evidence” that, at the time of the Founding, corporations were not subject to government regulation of their ability to spend money to advocate the election or defeat of political candidates.

…continue reading: The Difficulties of Reconciling Citizens United with Corporate Law History

A Job is Not a Hobby: The Judicial Revival of Corporate Paternalism

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Thursday February 5, 2015 at 9:08 am
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Editor’s Note: The following post discusses a recent working paper of the Harvard Law School Program on Corporate Governance, issued by Leo Strine, Chief Justice of the Delaware Supreme Court, the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance. The paper, which is based on a Keynote speech to the 42nd Annual Securities Regulation Institute of Northwestern University School of Law, is available here.

Leo Strine, Chief Justice of the Delaware Supreme Court, and the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance, delivered the Alan B. Levenson Keynote speech to the 42nd Annual Securities Regulation Institute of Northwestern University School of Law and an address to the American Constitution Society Student Chapter at Harvard Law School based on an article he recently posted to SSRN here.

This article connects the Supreme Court’s decision in Burwell v. Hobby Lobby to the history of “corporate paternalism.” It details the history of employer efforts to restrict the freedom of employees, and legislative attempts to ensure worker freedom. It also highlights the role of employment in healthcare coverage, and situates the Affordable Care Act’s “minimum essential guarantees” in a historical and global context.

…continue reading: A Job is Not a Hobby: The Judicial Revival of Corporate Paternalism

Making It Easier for Directors To “Do The Right Thing”

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Monday November 10, 2014 at 9:00 am
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Editor’s Note: The following post is based on a recent Harvard Business Law Review article by Leo Strine, Chief Justice of the Delaware Supreme Court and a Senior Fellow of the Harvard Law School Program on Corporate Governance. The article, Making It Easier For Directors To “Do The Right Thing”, is available here. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

Leo Strine, Chief Justice of the Delaware Supreme Court, and the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance, has recently published an article in the Harvard Business Law Review. The essay, titled Making It Easier For Directors To “Do The Right Thing”, is available here. The essay posits that benefit corporation statutes have the potential to change the accountability structure within which managers operate and thus create incremental reform that puts actual power behind the idea that corporations should “do the right thing.”

The abstract of Chief Justice Strine’s essay summarizes it briefly as follows:

…continue reading: Making It Easier for Directors To “Do The Right Thing”

Documenting The Deal

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Thursday October 30, 2014 at 8:54 am
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Editor’s Note: The following post is based on a recent article, forthcoming in The Business Lawyer, earlier issued as a working paper of the Harvard Law School Program on Corporate Governance, by Leo Strine, Chief Justice of the Delaware Supreme Court. The article, Documenting The Deal: How Quality Control And Candor Can Improve Boardroom Decision-making And Reduce The Litigation Target Zone, is available here. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

Leo Strine, Chief Justice of the Delaware Supreme Court, and the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance, gave a lecture to a the Delaware Business Law Forum that will be published in The Business Lawyer in May, next year. The essay, titled Documenting The Deal: How Quality Control And Candor Can Improve Boardroom Decision-making And Reduce The Litigation Target Zone, is available here.

…continue reading: Documenting The Deal

The Tension Between Conservative Corporate Law Theory and Citizens United

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Tuesday September 2, 2014 at 9:20 am
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Editor’s Note: The following post is based on a recent article forthcoming in Cornell Law Review, earlier issued as a working paper of the Harvard Law School Program on Corporate Governance, by Leo Strine, Chief Justice of the Delaware Supreme Court and a Senior Fellow of the Program, and Nicholas Walter, law clerk at the U.S. Court of Appeals for the Ninth Circuit, and a former law clerk at Delaware Court of Chancery. The article, Conservative Collision Course?: the Tension Between Conservative Corporate Law Theory and Citizens United, is available here. Work from the Program on Corporate Governance about corporate political spending includes Shining Light on Corporate Political Spending by Lucian Bebchuk and Robert Jackson, discussed on the Forum here, and Corporate Political Speech: Who Decides? by Lucian Bebchuk and Robert Jackson, available here.

Leo Strine, Chief Justice of the Delaware Supreme Court Review and a Senior Fellow of the Harvard Law School Program on Corporate Governance, and Nicholas Walter recently issued an essay with that is forthcoming in Cornell Law Review. The essay, titled Conservative Collision Course?: the Tension Between Conservative Corporate Law Theory and Citizens United, is available here.

The abstract of Chief Justice Strine’s and Walter’s essay summarizes it briefly as follows:

…continue reading: The Tension Between Conservative Corporate Law Theory and Citizens United

The Siren Song of Unlimited Contractual Freedom

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Friday August 22, 2014 at 9:00 am
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Editor’s Note: The following post is based on a recent article, forthcoming in Elgar Handbook on Alternative Entities (Eds. Mark Lowenstein and Robert Hillman, Edward Elgar Publishing 2014)., earlier issued as a working paper of the Harvard Law School Program on Corporate Governance, by Leo Strine, Chief Justice of the Delaware Supreme Court and a Senior Fellow of the Program, and J. Travis Laster, Vice Chancellor, Delaware Court of Chancery. The article, The Siren Song of Unlimited Contractual Freedom, is available here.

Leo Strine, Chief Justice of the Delaware Supreme Court Review and a Senior Fellow of the Harvard Law School Program on Corporate Governance, and J. Travis Laster, Vice Chancellor, Delaware Court of Chancery, recently issued an essay that is forthcoming in Elgar Handbook on Alternative Entities (Eds. Mark Lowenstein and Robert Hillman, Edward Elgar Publishing 2014). The essay, titled The Siren Song of Unlimited Contractual Freedom, is available here.

The abstract of Chief Justice Strine’s and Vice Chancellor Laster’s essay summarizes it briefly as follows:

One frequently cited distinction between alternative entities—such as limited liability companies and limited partnerships—and their corporate counterparts is the greater contractual freedom accorded alternative entities. Consistent with this vision, discussions of alternative entities tend to conjure up images of arms-length bargaining similar to what occurs between sophisticated parties negotiating a commercial agreement, such as a joint venture, with the parties successfully tailoring the contract to the unique features of their relationship.

…continue reading: The Siren Song of Unlimited Contractual Freedom

Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Wednesday May 7, 2014 at 9:04 am
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Editor’s Note: The following post is based on a recent Columbia Law Review article, earlier issued as a working paper of the Harvard Law School Program on Corporate Governance, by Leo Strine, Chief Justice of the Delaware Supreme Court and a Senior Fellow of the Program. The article, Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law, is available here. The article is a response essay to an earlier Columbia Law Review article by Professor Lucian Bebchuk, available here and discussed on the Forum here.

Leo Strine, Chief Justice of the Delaware Supreme Court Review and a Senior Fellow of the Harvard Law School Program on Corporate Governance, recently published in the Columbia Law Review a response essay to an essay by Professor Lucian Bebchuk published in the Columbia Law Review several months earlier. Professor Bebchuk’s essay, The Myth that Insulating Boards Serves Long-Term Value, is available here and was featured on the Forum here. Chief Justice Strine’s essay, titled Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law, is available here.

The abstract of Chief Justice Strine’s essay summarizes it briefly as follows:

…continue reading: Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law

Putting Stockholders First, Not the First-Filed Complaint

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Tuesday January 22, 2013 at 9:11 am
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Editor’s Note: The following post comes to us from Leo E. Strine, Jr., Senior Fellow for the Harvard Program on Corporate Governance and Austin Wakeman Scott Lecturer at Harvard Law School, Lawrence A. Hamermesh, Ruby R. Vale Professor of Corporate and Business Law at Widener University School of Law, and Matthew Jennejohn, an associate at Shearman & Sterling, LLP.

The prevalence of settlements in class and derivative litigation challenging mergers and acquisitions in which the only payment is to plaintiffs’ attorneys suggests potential systemic dysfunction arising from the increased frequency of parallel litigation in multiple state courts. After examining possible explanations for that dysfunction, and the historical development of doctrines limiting parallel state court litigation — the doctrine of forum non conveniens and the “first-filed” doctrine — this paper suggests that those doctrines should be revised to better address shareholder class and derivative litigation. Revisions to the doctrine of forum non conveniens should continue the historical trend, deemphasizing fortuitous and increasingly irrelevant geographic considerations, and should place greater emphasis on voluntary choice of law and the development of precedential guidance by the courts of the state responsible for supplying the chosen law. The “first-filed” rule should be replaced in shareholder representative litigation by meaningful consideration of affected parties’ interests and judicial efficiency.

Putting Stockholders First responds to the observation that in 2011, only 5% of settlements of shareholder litigation challenging mergers and acquisitions involved an additional payout to stockholders, 84% of such settlements were based on additional disclosure only, but all of such settlements involved payment of fees for plaintiffs’ attorneys. These figures reflect a significant change from 1999 to 2000, when 52% of suits filed on behalf of shareholders produced a financial benefit for the class, and only 10% of settlements were “disclosure-only.”

…continue reading: Putting Stockholders First, Not the First-Filed Complaint

The Most Influential People in Corporate Governance

Posted by Scott Hirst, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Tuesday October 30, 2012 at 9:11 am
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Each year, the National Association of Corporate Directors’ Directorship magazine publishes the Directorship 100 list, which seeks to identify “the most influential people in the boardroom community, including directors, corporate governance experts, journalists, regulators, academics and counselors.” A review of this year’s list indicates that, as in prior years, individuals affiliated with Harvard Law School and its Program on Corporate Governance play a central role in the corporate governance landscape.

This year’s Directorship 100 list includes 39 individuals who are Harvard Law School faculty or fellows, guest contributors to the Forum on Corporate Governance and Financial Regulation, and/or Harvard Law School alumni. The “Harvard 39” (with graduation year in parenthesis for those who are HLS alumni) are as follows:

The full Directorship 100 list is available here.

The Most Influential People in Corporate Governance

Posted by Scott Hirst, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Wednesday October 12, 2011 at 9:57 am
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A review of the most recent Directorship 100 list – a list of the most influential people in corporate governance put together each year by Directorship magazine – indicates that individuals affiliated with Harvard Law School and its Program on Corporate Governance play a central role in the corporate governance landscape.

This year’s Directorship 100 list includes forty individuals who are Harvard Law School faculty or fellows, guest contributors to the Forum on Corporate Governance and Financial Regulation, and/or Harvard Law School alumni. The “Harvard Forty” (with graduation year in parenthesis for those who are HLS alumni) are as follows:

The full Directorship 100 list is available here.

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