Jay Brown from the University of Denver Sturm College of Law has a new blog call "Race to the Bottom," which is a "proSOXblog" -- and, by implication, an "antiDEblog." I can see that we will have plenty to argue about!
In his most recent post, Jay criticizes the Delaware courts for their "inadequate" review of executive compensation and "ranks executive compensation as the #1 area of state corporate governance most likely to be preempted." This argument is a pretty good example of what I was talking about in my post-AALS regarding those who are critical of fiduciary law. You need a theory about what fiduciary law should accomplish before you haul off and claim that it's failing. In my view, regulating the size of executive compensation packages is not on the fiduciary law to-do list, so I'm not sure it makes sense to even think about federal legislation as "preemptive." In any event, Jay has a much longer version of his argument in a paper on SSRN.
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1. Posted by Jake on February 1, 2007 @ 18:38 | Permalink
Regarding notions of using corporate fiduciary law to regulate executive compensation, Prof. Smith writes: "You need a theory about what fiduciary law should accomplish before you haul off and claim that it's failing."
Here's a theory. Any executive who can explain his compensation package to his mother without fear of her disapprobation can keep it. :-)
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