Category Archives: Corporate Law
May 20, 2026 Andrew F. TuchCorporate Law
Ludovic Phalippou & William J. Magnuson,
Private Equity, Public Capital, and Litigation Risk, available at
SSRN (Nov. 14, 2025).
In their recent paper, Private Equity, Public Capital, and Litigation Risk, Professors Ludovic Phalippou and William Magnuson challenge the wisdom of a current trend in finance: retail investors’ increasing access to private equity (PE). The authors make compelling arguments—both about the imminent reality and risks of “retailization” and about the effects of the broader, long-term erosion of the public-private divide embedded in federal securities law.
Retailization, to be clear, is not new. Legislators, regulators, and courts have loosened constraints, allowing retail investors to access private equity through investment funds. Major law firms have engineered fund structures designed to channel retail capital into PE. The result is that PE firms, also known as alternative asset managers, began accepting retail capital through intermediaries more than a decade ago. Continue reading "Private Equity, Retail Investors, and Litigation Risk"
Apr 22, 2026 Brett McDonnellCorporate Law
Diversity, equity, and inclusion (DEI) efforts at the board level and beyond have been a major topic in corporate governance for the last decade or two. Those efforts have mainly focused on gender and racial diversity, but initiatives (now struck down) in California and at Nasdaq have also included LGBTQ or queer people. Turning our focus to them reveals a unique challenge: the closet. Boards and C-suites probably already contain a fair number of queer people, but most of them are not out about their status. How does the closet affect efforts to diversify boards? Are numerical goals an adequate response, or does addressing queer exclusion require deeper changes in corporate culture? Might non-queer people also benefit from such cultural changes?
Darren Rosenblum explores these questions, among others, in Queers, Closets, and Corporate Governance. They start with a quick primer on “queer.” Activists started using the word in the late 80s and early 90s to help question efforts at assimilation by more mainstream people and organizations. At the same time, theorists like Eve Sedgwick and Judith Butler called into question the stability of all sorts of categories and binaries that were at the heart of older versions of feminist theory. The theorists drew upon disciplines like structuralism and psychoanalysis to analyze subconscious, antisocial, and irrational desires. Activists and theorists both questioned prevailing sexual and gender norms and practices. Continue reading "Corporate Governance through a Queer Perspective"
Mar 23, 2026 Anna GelpernCorporate Law
What does a garbled snippet of English commercial boilerplate mean when pasted into a Chinese-law contract between a Chinese policy bank and a parastatal in a low-income country? What work does a seemingly nonsensical promise to keep secured and unsecured debt equal (“pari passu”!) do in the relationship between that bank and, say, the government of Benin? How would an arbitration court in Beijing, apparently vested with authority to enforce these contracts, decide whether the parties complied? As a non-sinologist communing with such contracts, I find these questions endlessly puzzling yet mostly ignored in the legal and policy debates over Chinese overseas investment.
China in Compliance, the special issue of Regulation & Governance edited by Matthew Erie, is a welcome reprieve from the China Good/China Bad back-and-forth that sucks the oxygen out of debates about Chinese overseas investment. Better yet, the issue offers unexpected insights into legal ethics and corporate compliance. The editor’s introduction, Compliance in China, and the first article, Legal Brokers of Chinese Investment in Cambodia: Compliance Between Contract and Culture, co-authored by Erie, Molly Bodurtha, and Sokphea Young, are good places to start for a sense of Erie’s Chinese Law and Development project. Together, the papers contribute to what he calls an ‘ethnographic record of global China.” Continue reading "Thesis, Antithesis, Dissonance: Compliance in China"
Feb 19, 2026 Caroline BradleyCorporate Law
Curtis J. Milhaupt & Wolf-Georg Ringe,
The Political Economy of Global Stock Exchange Competition (Sep. 08, 2025), available at
SSRN.
States compete with each other to attract business, and this competition often focuses on specific sectors of financial activity. States compete to be centers for asset management, for insurance, for listings, for derivatives markets, or for financial innovation. Private actors also engage in competition: stock exchanges, as for-profit businesses, seek to attract listings and trading activity, competing with other exchanges. Other market operators similarly seek to attract business. Private-sector actors develop standards and documentation to support financial market transactions.
Conventionally, academics and journalists focus on competition between stock exchanges to attract listings, but as Curtis Milhaupt and Wolf-Georg Ringe show in The Political Economy of Global Stock Exchange Competition, this only reflects a part of a much more interesting and important story, which, they argue, calls for “sustained scholarly engagement across law, economics, and international relations.” The paper convincingly shows why this is the case. Continue reading "Stock Exchanges as Strategic Assets"
Jan 21, 2026 Bill BrattonCorporate Law
Marcel Kahan & Edward B. Rock,
The Cleansing Effect of Shareholder Approval in a World of Common Ownership, available at
SSRN (Nov. 18, 2024).
It’s been ten years since MFW and Corwin opened a process pathway to business judgment review of cashout mergers, subject to Weinberger, and arm’s length mergers, subject to Revlon. At the time the cases came down, I anticipated smooth sailing for the cases’ two-track cleansing regime, under which the defendant needs independent director approval followed by ratification by a fully informed and uncoerced majority of disinterested shareholders. I figured that we had enough law in place on each of the tracks to make their application a straightforward matter. The components of the board approval leg, director independence and a special committee process, were focal point matters in late twentieth-century corporate governance, and there were plenty of Delaware cases providing guidance. The shareholder approval leg had a sketchier background. We had a well-developed law, mostly federal, on the full information requirement, and we knew coercion when we saw it. We had much less on the table to help us with precise questions respecting majority disinterested shareholder approval, because shareholder ratification had not theretofore been the usual practice recourse respecting conflicted transactions. But how hard could it be to fill in the details?
It turned out to be a lot harder than I thought. MFW and Corwin came down before everybody’s attention turned to the Big Three institutional investors and their growing block of voting shares and the closely related question of portfolio investor incentives, in particular the incentives of “common owners.” Common owner conflicts first popped up on the screen in 2004 with the empty voting allegations triggered by the Mylan-King merger agreement. The problem has been looming larger ever since, implicating not just corporate governance but antitrust. Continue reading "Institutional Disinterest"
Dec 9, 2025 Sergio Alberto Gramitto RicciCorporate Law
What if you could embark on a journey through time and space, witnessing the birth and evolution of business organizations across civilizations? Barry Hawk’s remarkable new book, Family, Partnerships and Companies: From Assur to Amsterdam, offers precisely such an adventure—a sweeping historical panorama that traces the development of business associations from ancient Mesopotamian merchants to the Dutch trading houses that would eventually reshape global commerce.
Hawk’s achievement is nothing short of extraordinary. Rather than confining himself to the familiar terrain of English common law or European commercial development, he excavates the deep historical roots of business organization across nine distinct societies and cultures. From the Old Assyrian naruqqum of the early second millennium BCE to the joint stock companies of Renaissance Europe, Hawk demonstrates that the human impulse to pool capital, share risk, and organize commerce transcends geographical and temporal boundaries. His methodological approach represents a significant departure from traditional corporate law scholarship, which too often treats business organizations as products of modern legal evolution rather than as institutions with deep historical roots. Continue reading "A Time Traveler’s Guide to Business Organizations: Barry Hawk’s Journey From Assur to Amsterdam"
Nov 11, 2025 Matteo GattiCorporate Law
In Getting to Yes: The Role of Coercion in Debt Renegotiations, Professors Vincent Buccola and Marcel Kahan offer a deep and clarifying intervention in a murky but critical corner of modern corporate finance. Despite the surge in controversial out-of-court restructurings—where debtors use increasingly aggressive tactics to sidestep unanimity and rewrite deal terms—the legal framework for evaluating such moves remains surprisingly underdeveloped. Judges tend to treat these fights as disputes among sophisticated players and very rarely imply covenants or override textual language. Buccola and Kahan step into this vacuum with an elegant conceptual framework for understanding coercion in debt alteration and, crucially, when courts should push back.
This is an important piece, both for its ambition and its pragmatism. Its core insight is that many renegotiation techniques may induce “consent” from creditors while leaving them collectively worse off. Buccola and Kahan offer a systematic account for understanding how this happens, identifying four key structural features—ranking, conditionality, exclusivity, and voting variability—that shape the coerciveness of any consent solicitation. They then show how these features combine in real-world practices such as exchange offers, exit consents, dual conditionalities, ballot stuffing, and exclusive uptiers, many of which have gained prominence in recent years. Some of these strategies resemble classic coordination problems or even prisoner’s dilemmas, in which individual creditors are pressured to accept a deal that, in aggregate, harms the group. By rigorously mapping the mechanics and incentives at play, the authors create a typology of coercive tactics that can push transactions over the finish line even when they diminish overall creditor value. This roadmap will be essential not only for academics but for practitioners and judges navigating these increasingly frequent and complex contests. Continue reading "Saying Yes, But Meaning No—Rethinking Coercion in Debt Reorganizations"
Oct 10, 2025 Charles O'KelleyCorporate Law
Zohar Goshen, Assaf Hamdani, & Dorothy Lund,
Fixing MFW: Fairness and Vision in Controller Self-Dealing, __
Harv. Bus. L. Rev. __ (forthcoming), available at
SSRN (Dec. 17, 2024).
In the past 24 months, Delaware’s place as state-corporation-law hegemon has undergone sustained hurricane-force blowback from Court of Chancery and Supreme Court decisions and subsequent legislation, which have shattered the long-standing belief that for most publicly-traded firms, the benefits of incorporating in Delaware exceed the costs, including the costs and risks of stockholder litigation. At the center of Delaware’s existential crisis are the Court of Chancery decision in the Tornetta litigation rescinding Elon Musk’s $57 billion compensation package, the Supreme Court decision in the Match litigation extending MFW to all controlling-shareholder-conflicted transactions, and the Delaware legislature’s February 2025 enactment of Senate Bill 21 in reaction to those and related judicial decisions. Fundamental to a meaningful critique of these cases and Senate Bill 21 is an under-the-radar question: how should entrepreneur-influenced or entrepreneur-controlled transactions and decisions fit in a value-optimizing theory of the business judgment rule? Focus on this question, and the nature and role of the entrepreneur have largely been missing from scholarly commentary. A much-needed antidote is now available in a provocative forthcoming article, Zohar Goshen, Assaf Hamdani, and Dorothy Lund, Fixing MFW: Fairness and Vision in Controller Self-Dealing (hereinafter “Fixing MFW”), available at SSRN and forthcoming in the Harvard Business Law Review.
While Fixing MFW’s title suggests a focus only on controller self-dealing, its actual focus is much broader, including, as its poster child, Elon Musk, a quintessential entrepreneur whose stockholding would not treat him as a controlling stockholder under the safe harbor provided by Senate Bill 21. In other words, a central concern of Fixing MFW is how the business judgment rule should apply whenever a powerful entrepreneur, whether a controlling stockholder or not, receives non-ratable benefits in a transaction with the corporation. Such transactions would include the compensation package Musk received from Tesla, or the merger of Musk’s energy company, SolarCity, into Tesla. As Fixing MFW convincingly demonstrates, these transactions should be analyzed similarly, whether Musk falls within the governing understanding of a controlling stockholder or not, because they both involve the insolvable problem of what the authors call “idiosyncratic value.” Continue reading "Understanding The Nature and Role of The Entrepreneur and Entrepreneur-created Value in Theorizing The Business Judgment Rule"
Sep 10, 2025 Tom C.W. LinCorporate Law
Sergio Alberto Gramitto Ricci, Daniel J.H. Greenwood, & Christina M. Sautter,
The Shareholder Democracy Lie, 78
Fla. L. Rev. __ (forthcoming 2026), available at
SSRN (Feb. 18, 2025).
Governance is hard; democratic self-governance is even harder. The governance of our political institutions and corporations is replete with evidence of such difficulties. Yet, the alternatives to democratic self-governance, while administratively easier, are filled with their own dangers. As such, appeals to democracy and conceptions of democracy have long been used in law, business, and politics throughout history to justify policies and actions of varying democratic ends.
In The Shareholder Democracy Lie, Professors Sergio Gramitto Ricci, Daniel Greenwood, and Christina Sautter offer a deeply researched and rigorously reasoned critique of one of corporate law’s most enduring metaphors and misleading myths: shareholder democracy. The authors argue that the noble rhetoric of shareholder democracy does not reflect legal, institutional, and historical realities—and that this rhetorical distortion carries real consequences for corporate governance, political legitimacy, and social progress. Continue reading "The Shareholder Democracy Promise"
Jul 30, 2025 Ann LiptonCorporate Law
Recent high-profile business implosions such as FTX and WeWork introduced the world to the notion of the business cult. In these firms, a charismatic founder created pressure-cooker working conditions where dissent was stifled and a grandiose business philosophy – such as the “We” in WeWork and the effective altruism of FTX – fueled employee devotion.
In her book, Little Bosses Everywhere: How the Pyramid Scheme Shaped America, New York magazine reporter Bridget Read excavates a much older, and much larger business cult: the cult of multilevel marketing. Multilevel marketing is a model whereby a network of independent “sellers” buy products from a manufacturer, for the ostensible purpose of reselling to end-users at a profit, but sellers also earn commissions based on the purchases of new sellers who they bring into the network. Beginning with its origins with the Nutrilite Company and tracing through to its modern form in companies like Mary Kay, Amway, and Herbalife, Read convincingly demonstrates that the model is, fundamentally, a pyramid scheme: sales to actual customers are negligible and rarely even tracked; profits accrue only to those very few members (in the vicinity of 1% or less) who have built a large “downline” of new recruits who kickback commissions when they make their own purchases. Continue reading "When Business is a Cult"
