Democracy and the Dominance of Delaware in Corporate Law

Delaware has a population less than one-third of one percent of the nation, but it is the state of incorporation for more than fifty percent of US public companies and more than sixty percent of the Fortune 500. Delaware\u27s resulting dominance over the terms of corporate governance in the US has been the subject of one of the grandest debates within corporate law scholarship

The Third Way: Beyond Shareholder or Board Primacy

There is a third possibility in corporate governance: real duties imposed on boards, but which run to all the company\u27s stakeholders not just shareholders

In Defense of Corporate Persons

This essay is a critique of this attack on corporate personhood. It explains that the corporate separateness - corporate “personhood” - is an important legal principle as a matter of corporate law. What’s more, as a matter of constitutional law, corporate “personhood” deserves a more nuanced analysis than has been typically offered in arguing in favor of an amendment to overturn Citizens United. Indeed, the concept of corporate “personhood” can in fact be marshaled in arguments against corporations being able to assert constitutional rights. In the nascent category of cases brought by corporations asserting rights of religious freedom, for example, corporations typically derivatively assert the religious claims of their shareholders. Attention to corporate “personhood” would lead courts to separate the claims of shareholders from those of the corporation itself, leading to a dismissal of corporate religious claims asserted on behalf of shareholders. Finally, it proposes that the concerns motivating the movement against corporate personhood should be ameliorated with adjustments in corporate governance rather than constitutional law. In corporate law, what we need are changes in corporate governance to make corporations more like persons, not less. Unlike persons, corporations are expected to act if they have only one goal - the production of shareholder value. People must balance a range of obligations, both moral and legal. Requiring corporations to attend to a broader range of stakeholders would make corporations more like people, would make them better citizens, and would make their political participation less problematic

Brief for Professor Kent Greenfield As \u3cem\u3eAmicus Curiae\u3c/em\u3e in Support of Respondents, \u3cem\u3eState of Washington vs. Arlene\u27s Flowers\u3c/em\u3e and \u3cem\u3eIngersoll vs. Arlene\u27s Flowers\u3c/em\u3e

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance on the authority of Washington corporations to raise constitutional claims of their shareholders. The assertion that Mrs. Stutzman’s rights are synonymous with the corporation depends on Washington state law and runs counter to the foundational Washington corporate law principle, expressed in Grayson v. Nordic Constr. Co., that “[a] corporation exists as an organization distinct from the personality of its shareholders.” This amicus curiae brief addresses the significance of corporate separateness to Washington’s law of corporations and explains how Appellants’ arguments rest on a conflation of those distinctions. This Court’s consideration of the constitutional claims in this case will be aided by a full understanding of these important, antecedent aspects of Washington law

A Skeptic\u27s View of Benefit Corporations

Over the last few years there has been a shift in the core ideas of business with respect to corporate responsibility. A new type of business classification called benefit corporations is gaining popularity in the United States. Benefit corporations are required to have a positive impact on society and the planet, and to meet a higher level of accountability and transparency. However, will benefit corporations truly change the industry and world positively? This article provides for skepticism about the positive affects benefit corporations are purported to have on business. One reason is that benefit corporations are completely voluntary; thus, the corporations in most need of change and oversight are not likely to opt-in. The motivation behind benefit corporations is a step in the right direction; however, in order to effect real change in corporate responsibility, the law needs to be bolder

Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias

In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination. In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias is rarely a game changer in a given case. One enduring puzzle is whether a limit on the mode or manner of communication – a ban on racial epithets, for example – embodies viewpoint discrimination. This question has been unresolved for almost thirty years, ever since the Court’s murky opinion in R.A.V. v St. Paul struck down, as viewpoint based, an ordinance aimed at fighting words that “arouse[d] anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The Court was not clear whether the ordinance was viewpoint biased because it regulated one side of a public debate or limited a mode or manner of debate for both sides. The difference between these two possible readings matters: if limits on modes or manners of speech are deemed to be viewpoint discrimination, then it may be virtually impossible to enact, for example, bans on racial epithets at a public university. But Brunetti clarified matters considerably. The Court struck down the provisions of the Lanham Act prohibiting the registration of “immoral” and “scandalous” marks as viewpoint biased. The conflict between Justice Elena Kagan’s opinion for the Court and the lead opposition opinion written by Justice Sonia Sotomayor illuminated an important area of agreement that appears to control a majority of the Court. That agreement is this: that worries about viewpoint bias do not ordinary come into play when the government regulates the mode and manner of communication as opposed to the ideas conveyed. Such a principle has a number of implications. Perhaps the most important is that R.A.V. is less significant in First Amendment doctrine than it has seemed for thirty years. Also, some kinds of speech codes could survive First Amendment challenge, as long as they apply in certain fora and are aimed at the mode and manner of communication rather than the ideas expressed. Another implication would be that it would be possible for Congress to rewrite the now-defunct provisions of the Lanham Act to survive First Amendment challenge and also satisfy much of Congress’s original goals

Reclaiming Corporate Law in a New Gilded Age

Corporate law matters. Traditionally seen as the narrow study of the relationship between managers and shareholders, corporate law has frequently been relegated to the margins of legal discussion and political debate. The marginalization of corporate law has been especially prevalent among those who count themselves as progressives. While this has not always been true, in the last generation or so progressives have focused on constitutional law and other areas of so-called public law, and have left corporate law to adherents of neoclassical law and economics. To the extent that the behavior of businesses has been a matter of concern, that concern has been aimed at adjusting the rules of environmental law, administrative law, employment law, and the like. The time has come to reclaim corporate law as a topic of wide debate and progressive concern. Instead of being a narrow discipline with limited implications, corporate law determines the rules governing the organization, purposes, and limitations of some of the largest and most powerful institutions in the world. By establishing the obligations and priorities of companies and their management, corporate law affects everything from employees\u27 wage rates, to whether companies will try to skirt environmental laws, to whether they will tend to look the other way when doing business with governments that violate human rights. Corporate law also determines whether corporations will look at the long term or the short term, whether they will see themselves as owing any responsibilities to stakeholders other than shareholders, and indeed whether they consider themselves to be constrained by law at all. The main thesis of this article is that corporate law is much more important than most progressives realize. Corporate law can be part of the wider task of regulating corporations in particular and business in general. The rules that govern corporations should more expressly take into account the fact that corporations are collective enterprises that demand investment from a number of different sources. These investments come in various forms: inflows of capital from shareholders and creditors; cash inflows from customers; infrastructural support from governments and communities; and effort, intelligence, and direction from employees. Whereas corporate law presently focuses on the financial investments of shareholders only, it could, and should, be adjusted to take into account the contributions of non-equity investors. Adjusted in this way, corporate law will make it more possible for corporations to serve their purpose of facilitating the creation of wealth, broadly defined and distributed