Beyond Corporate Contract: A Response to Helen Hershkoff & Marcel Kahan, \u3ci\u3eForum-Selection Provisions in Corporate \u27Contracts\u27\u3c/i\u3e

This piece is a response to Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions in Corporate “Contracts”, 93 Wash. L. Rev. 265 (2018)

Beyond Corporate Contract: A Response to Helen Hershkoff & Marcel Kahan, \u3ci\u3eForum-Selection Provisions in Corporate \u27Contracts\u27\u3c/i\u3e

This piece is a response to Helen Hershkoff & Marcel Kahan, Forum-Selection Provisions in Corporate “Contracts”, 93 Wash. L. Rev. 265 (2018)

Waitzer, Sarro – Corporate Law Reform: Focusing on Issues that Matter

A striking feature of corporate governance law reform is the steady flow of new controversies and consequential regulatory proposals. Corporate law has spawned a governance reform industry that has become adept at feeding itself, most often with regulatory initiatives that are, at best, symbolic – as outlined by Marcel Kahan and Edward Rock, they certainly cannot be explained by their relevance to improving either corporate governance or performance

\u3cem\u3eCaremark\u3c/em\u3e and Compliance: A Twenty Year Lookback

The Delaware Chancery Court’s decision in In re Caremark was and is a landmark decision. This brief Commentary takes a look back at Caremark on three issues that pertain to its contemporary relevance inside the corporate boardroom: (1) framing the cost-benefit assessment on the question of how much to spend on compliance; (2) how and when to force certain compliance matters to real-time board-level attention; and (3) using selection, promotion, and compensation decisions to influence the culture and risk-taking “temperature” of the firm

Why Firms Adopt Antitakeover Arrangements

Firms going public have increasingly been incorporating antitakeover provisions in their IPO charters, while shareholders of existing companies have increasingly been voting in opposition to such charter provisions. This paper identifies possible explanations for this empirical pattern. Specifically, I analyze explanations based on (1) the role of antitakeover arrangements in encouraging founders to break up their initial control blocks, (2) efficient private benefits of control, (3) agency problems among pre-IPO shareholders, (4) agency problems between pre-IPO shareholders and their IPO lawyers, (5) asymmetric information between founders and public investors about the firm's future growth prospects, and (6) bounded attention and imperfect pricing at the IPO stage.

Asking the Right Questions: How Jill Fisch Debunks Narratives and Arrives at Solutions

Without a doubt, Professor Jill E. Fisch is one of the most influential scholars in the corporate and securities law space. Whether we measure her contributions by awards, areas of influence, or volume, Professor Fisch’s work is at the top of the list. It is, indeed, no surprise that the Institute for Law and Economic Policy (ILEP) chose to honor Professor Fisch at this year’s corporate and securities symposium, hosted with the University of Pennsylvania Journal of Business Law. I am honored to write this introduction about Professor Fisch and explore her work and influence over time, with an emphasis on the connection between her work and corporate governance writ large

Federalism in Corporate/Securities Law: Reflections on Delaware, California, and State Regulation of Insider Trading

In this brief Essay, I offer some thoughts on both the theory and the politics underlying the federalism question. My comments will touch on some of the controversies and also look at a somewhat quieter question, the state regulation of insider trading. Over the course of the last few years, judges in California and Delaware have traveled markedly different routes on questions involving the states\u27 role in regulating insider trading. A California court of appeal has recently expanded the reach of the state insider trading statute to cover a claim alleging misconduct in California by an executive of a Delaware chartered company. By contrast, Delaware Vice-Chancellor Leo Strine has hinted strongly that Delaware courts should consider getting out of the business of regulating insider trading entirely, notwithstanding a venerable old Delaware case long cited for the proposition that insider trading naturally breaches the fiduciary duty of loyalty. These contrasting approaches make a nice pair from which to think through the federalism question free from the blinding glare of controversy surrounding Eliot Spitzer, the shareholder ballot access proposal, or Sarbanes-Oxley