March 27, 2009
"The Future of Fiduciary Duties in Corporate Law"
Posted by Gordon Smith

Notre Dame Law School is hosting a conference today on "The Future of Fiduciary Duties in Corporate Law." Julian Velasco has assembled a wonderful lineup of longtime friends, including fellow Glommer Lisa Fairfax, my co-author Bob Thompson, and Ideoblogger Larry Ribstein, as well as Chief Justice Myron Steele of the Delaware Supreme Court.

I will be presenting a new paper entitled "Unlimited Shareholder Power," which I hope to post on SSRN soon. Here is a glimpse:

For many years, the most important unanswered question about Delaware corporate law has been the following: what is the scope of shareholder power to adopt, alter, or repeal the bylaws of a Delaware corporation? Commentators have offered numerous possible answers, but in CA v. AFSCME, the Delaware Supreme Court finally took a turn. In this essay, we argue that the Court’s answer in CA begins from the faulty premise that shareholder power to manage the corporation is necessarily limited by the power granted to the board of directors. We argue, instead, that shareholders should have unlimited (formal) power to manage the corporation through bylaws, and that structural limits on shareholder power would be imposed effectively by various institutional constraints and market forces.

By the way, this is my fourth trip to South Bend, twice on business and twice for football games. Every time I come here, I am more impressed with the University of Notre Dame.

Corporate Governance, Corporate Law, Delaware | Bookmark

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