Category Archives: Business Organisation

Colin Mayer, ‘Ownership, Agency and Trusteeship’

ABSTRACT This article argues that the two dominant concepts of theory of the firm and the bases of modern management education, business practice, and public policy towards the firm, namely shareholder primacy and agency theory, are at best incomplete and at worst erroneous. They omit what was a substantial basis of discourse on the company […]

Sarath Sanga, ‘On the Origins of the Market for Corporate Law’

ABSTRACT I study the origins of the market for corporate charters and the emergence of Delaware as the leader of this market. Specifically, I assemble new data on 19th and 20th-century corporations to evaluate two widely-held beliefs: (1) the US Supreme Court is responsible for enabling a national market for corporate charters in the 19th […]

Vibe Ulfbeck, ‘Vicarious Liability In Groups Of Companies And In Supply Chains – Is Competition Law Leading The Way?’

ABSTRACT In competition law, it has been established since long that a parent company and a subsidiary under certain conditions may be regarded as a ‘single economic unit’ – an ‘undertaking’ – with the consequence that the parent company can be held liable if the subsidiary has incurred criminal liability for competition law infringements. Although […]

Deborah DeMott, ‘Fiduciary Duties on the Temporal Edges of Agency Relationships’

ABSTRACT The duties that principals and agents owe each other are typically coterminous with the agency relationship itself. But sometimes temporal lines of clean demarcation do less work. The Chapter identifies situations in which an agent may owe duties – including fiduciary duties – to the principal prior to the formal start of their relationship, […]

O’Byrne and Schipani, ‘Personal Liability of Directors and Officers in Tort: Searching for Coherence and Accountability’

ABSTRACT The 21st century has been marred by corporate scandal after scandal, including financial fraud, pyramid schemes, international bribery, and decades of sexual harassment. This raises an important question regarding the role of corporate and tort law in controlling the behavior of corporate executives more broadly. It is clear that directors and officers should not […]

Anna Windemuth, ‘The #MeToo Movement Migrates to M&A Boilerplate’

ABSTRACT In the #MeToo era, companies pay for unchecked sexual harassment with plummeting stock prices. Corporate lawyers have addressed this liability by developing the #MeToo clause in mergers-and-acquisitions (M&A) agreements. The #MeToo clause generally represents that, to a target company’s knowledge, senior employees have not been subject to allegations of sexual harassment. This Note explains […]

Joshua Fershee, ‘An Overt Disclosure Requirement for Eliminating the Fiduciary Duty of Loyalty’

ABSTRACT This essay focuses on the concept of eliminating the fiduciary duty in an LLC, as permitted by Delaware law, and what that could mean for future parties. When parties A and B get together to create an LLC, it is okay if they negotiate to eliminate their fiduciary agreements as to one another. They […]

Paul Miller, ‘Equity, Majoritarian Governance, and the Oppression Remedy’

ABSTRACT This chapter, forthcoming in Fiduciary Obligations in Business, examines two modalities of equitable intervention in corporate governance in cases of shareholder conflict. The first involves the extension of fiduciary duties to controlling shareholders, and the second judicial review on the grounds of oppression. Both forms of intervention are intended to be responsive to pathologies […]

‘Corporate Law as Law’

David Kershaw, The Foundations of Anglo-American Corporate Fiduciary Law (2018). Corporate law has a short historical memory. One result is that conceptual battles that go nowhere get refought, as a look at much of the literature generated in the wake of Citizens United will confirm. There are a few historical classics in the academic literature […]

Degeling and Hudson, ‘Financial Robots as Instruments of Fiduciary Loyalty’

ABSTRACT Retail financial consumers increasingly interact with financial services providers via a financial robot that is driven by an algorithm or other mathematical model (‘robo financial advice’). In this sector, the focus of industry and legal participants is on statutory regulation under the Corporations Act 2001 (Cth) and associated class orders and guidance issued by […]