The path of fiduciary law

Contemporary accounts of corporate legal evolution view lawmakers as highly responsive to the economic interests of both pressure groups and markets. Through this lens law is understood to be the product of pressures exerted by managers, investors, institutional shareholders and the Federal Government, and the incentives of state lawmakers to accommodate the interests of these pressure groups. This lens dominates our current understanding of corporate legal evolution in the United States and is becoming highly influential in comparative accounts of corporate legal variation. This article sounds a note of objection. The article argues that the disciplinary pendulum has swung too far toward external accounts of legal evolution and too far away from internal accounts of legal change which view the path of law, at least in part, as the product of the internally generated constraints of the legal system – the relative autonomy of the law. To make this argument, the article considers the internal constraint of the conception of the corporation in 19th century US and UK corporate law and the evolution of self-dealing law in these two jurisdictions. It shows how two jurisdictions that started from the same legal proposition about self-dealing diverged rapidly as a result of the interaction of this proposition with profoundly different conceptions of the corporation. Contrary to the dominant account of the evolution of self-dealing law in the United States, the contemporary self-dealing rule is not the legally unexplained product of external market pressures but the logical and consistent product of the path of fiduciary law trodden through the corporate conception. The article shows that for contemporary corporate law a significant dose of inevitability was administered at the inception of general incorporation

The illusion of importance: reconsidering the UK's takeover defence prohibition

This article considers the significance of the UK Takeover Code's non-frustration prohibition. It asks to what extent the prohibition actually prevents post-bid, director-controlled defences that would not have been, in any event, either formally prohibited by UK company law without share-holder approval or practically ineffective as a result of the basic UK company law rule set. It finds that there would be minimal scope for director-deployed defences in the absence of the non-frustration prohibition, and that, in the context of UK company law, such defences have limited scope to be deployed for entrenchment purposes. Furthermore, this minimal scope for board defensive action would, in order to be compliant with a director's duties, require a pre-bid, shareholder-approved alteration to the UK's default constitutional balance of power between the board and the shareholder body to allow corporate powers to be used for defensive effect. In light of this conclusion the article looks for a rationale to justify denying shareholders the right to make this limited and potentially beneficial defensive election. It concludes that no persuasive rationale is available and that the prohibition is unnecessary and without justification

How ‘the story’ subsumed ‘The Vote’: we have no meaningful direction about the terms of Brexit

What did the 52% who voted to leave the EU want? In the first part of a lecture delivered at the Goethe University in Frankfurt, David Kershaw argues that pro-Brexit politicians and media have presumed to interpret the vote as a mandate to ensure Brexit results in the controls on free movement which are likely to result in a hard Brexit. Their optimism about their ability to secure a deal giving Britain control over freedom of movement fails to acknowledge its importance to the rest of the EU

Corporate law and self-regulation

This paper explores the different ways in which market actors are “co-opted” as corporate law regulators. It considers the the preconditions for generating “endogenous self-regulation” through the lens of the formation and operation of the UK Takeover Code and Panel. The paper argues that its incontrovertible success as a command, control and surveillance regulator is in large part attributable to merchant (investment) banking control over the production of the original Code and the ways in which the Code generates direct and indirect income opportunities for investment bankers in takeover activity, referred to in the paper as “bribing the quarterback”. The paper also uses the Takeover Panel example to explore the unexpected regulatory biases that are generated by the survival and legitimacy concerns of the self-regulator itself. From endogenous self-regulation, the paper moves onto consider “market-controlled” regulation where the state directly co-opts market actors as regualators. Using the example of “comply or explain” corporate governance codes the paper explores the powerful market-based enforcement drivers and argues that these drivers interact with a “comply or explain” regulatory outlook that is likely to, and does, lead to sub-optimal regulation that overweights accountability concerns. Setting these regulatory effects alongside the regulatory biases identified in the analysis of the Takeover Code, the paper shows that the regulatory biases generated by self-regulation are more muli-faceted than, and often inconsistent with, the standard account that self-regulation is likely to generate rules that favour the regulated

The British Constitution’s failure to manage existential risk: back to basics

Brexit comes at a precarious time for the UK – with an ineffective Opposition, continuing calls for Scottish independence and a referendum result that gives no guidance on what kind of exit the British people want. In the second part of a lecture delivered at the Goethe University in Frankfurt on 23 November, David Kershaw warns that the UK’s constitutional arrangements, unlike those of most European countries, provide a relatively open door to populist drivers for radical change. Given the risks associated with Brexit, much weight is accordingly placed on the representative function of the Commons – but there is concern that the reliance on direct democracy has undermined it. If the Commons fails to perform this role then the Lords must do so

The foundations of Anglo-American corporate fiduciary Law

This article is reprinted from the Introduction to David Kershaw's "The Foundations of Anglo-American Corporate Fiduciary Law" which will be published by Cambridge University Press in August 2018. The book explores the doctrinal pre-history of US and UK corporate fiduciary law – the duties the law imposes on directors, and shows how understanding these pre-histories drives a reevaluation of the nature, quality and production processes of contemporary corporate law in both jurisdictions. The book provides a legal etymology of US and UK corporate fiduciary law – an account of the origins of the concepts and ideas that provide the raw materials of modern corporate fiduciary law, such as rationality review and fairness review, gross negligence and skills adjusted ordinary care – and a historical legal genealogy or topography – the excavation of a map of the path of these ideas from their origins through to today. In excavating these historical legal maps, the book seeks to explain why these US and UK legal paths were taken and why alternative available paths were not seen, or were foreclosed. It is the juxtaposition of the UK and US prehistories which enables this exploration because although today the fiduciary duties which corporate law imposes on the directors of US and UK companies are starkly different, both jurisdictions started from the same place by borrowing from the same eighteenth and nineteenth century English, non-corporate legal sources. This juxtaposition, the book argues, enables us to see the real drivers of US and UK corporate legal evolution and divergence and to challenge contemporary accounts of corporate legal production and change

Sequential estimation procedures for binary response

SIGLELD:D48914/84 / BLDSC - British Library Document Supply CentreGBUnited Kingdo

Vegetation Response to a Subsurface Crude Oil Spill on a Subarctic Right-of-way, Tulita (Fort Norman), Northwest Territories, Canada

The plant species on a simulated pipeline corridor near Tulita (Fort Norman), Northwest Territories were studied prior to and for three years after an experimental point-spill of 3273 L (20 imperial barrels) of crude oil. Two distinct environments were examined: a cleared right-of-way (ROW) and a simulated pipeline trench. Each environment was subdivided on the basis of oil concentration into heavily oiled, lightly oiled, and unoiled sections. Total plant cover on the heavily oiled ROW declined by 73% in the first growing season; however, significant recovery took place in subsequent years. All other oiled environments had significant increases in total plant cover, but not until at least the second year after the spill. Of the 34 taxa identified, 13 declined significantly in abundance by the third growing season after the oil spill, mainly on the heavily oiled ROW. By the third post-spill growing season, mosses, Carex spp., Eriophorum spp., and agronomic grasses (Alopecurus arundinacea, Phleum pratense, Poa glauca and P. pratensis) had increased in abundance on at least one type of oiled substrate. However, the agronomic grasses, species sown on the Norman Wells pipeline, also declined significantly on the heavily oiled Trench. In contrast, the native grass Arctagrostis latifolia declined only on the heavily oiled ROW.On a étudié les espèces végétales présentes sur un corridor pipelinier simulé près de Tulita (Fort Norman), dans les Territoires du Nord-Ouest, avant un déversement expérimental ponctuel de pétrole brut de 3273 L (soit 20 barils impériaux) et durant les trois années suivantes. On a examiné deux environnements distincts: une emprise dégagée et une tranchée simulée de pipeline. On a divisé chaque environnement en sections en se basant sur la concentration en pétrole: forte, faible et nulle. Durant la première saison de croissance, l'ensemble du couvert végétal a diminué de 73 p. cent sur les sections de l'emprise où existait une forte concentration; un important reverdissement a toutefois pris place durant les années suivantes. Tous les autres endroits qui avaient reçu du pétrole ont connu d'importantes augmentations de l'ensemble du couvert végétal, mais, au plus tôt, à partir de la deuxième année suivant le déversement. Sur les 34 taxons identifiés, 13 avaient largement diminué en abondance à la troisième saison de croissance suivant le déversement, surtout dans les sections de l'emprise à forte concentration de pétrole. À la troisième saison de croissance suivant le déversement, les mousses des espèces Carex et Eriophorum et les herbes agronomiques (Alopecurus arundinacea, Phleum pratense, Poa glauca et P. pratensis) avaient augmenté en abondance à au moins un type de milieu où avait été déversé du pétrole. Toutefois, les herbes agronomiques - espèces semées sur le parcours du pipeline de Norman Wells - avaient aussi diminué de façon significative sur la tranchée où se trouvait une forte concentration de pétrole. Par contre, l'herbe indigène Arctagrostis latifolia n'avait diminué que sur l'emprise à forte concentration