I just got back from the ABA Section of Business Law's Spring Meeting in Dallas.  One program I attended was the Corporate Law Program entitled Current Tensions in Shareholder and Board Relationships.  The program started off with a discussion on the history of shareholder rights.  Interestingly, the panelists agreed that while we appeared to be in an era of increased shareholder power, and hence increased tension with respect to shareholders and boards, the range of shareholder rights, particularly from a statutory perspective, has remained pretty constant over the years.  Instead, what has changed are the mechanisms used to effectuate shareholder rights and/or the manner in which shareholders have used those rights--such as shareholders' use of the inspection right as a lever to enhance their power in other ways.  What is the importance of the observation that shareholder rights have not changed much over time?

On the one hand, it may suggest that shareholders' recent activism is legitimate because that activism only seeks to effectuate existing shareholder rights; rights historically undermined by procedural and other impediments.  On the other hand, such a suggestion begs the question of whether such impediments were inadvertent or deliberate efforts to ensure that shareholders only exercise their rights in limited contexts.  In which case, the recent efforts to dismantle these impediments should be viewed as more problematic.  Either way, as the panelists suggested, it is worth remembering that the rights to which shareholders are entitled to exercise have not shifted over time, even if shareholders desire and ability to exercise those rights have.

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