Academic

American Constitution Society National Convention

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring

Earlier today I appeared on a panel entitled "Corporate Governance and Financial Regulation" at the American Constitution Society National Convention. (I assume the video will appear soon at the ACS Blog.) According to the organizers, my role was to provide "balance" on the panel, but Nell Minow (aka Movie Mom) and I were singing from the same hymn sheet, arguing for improved director elections. Mike Barry, a partner at the Wilmington firm of Grant & Eisenhofer (both former Skadden colleagues), was promoting Delaware. And while Damon Silvers, Associate General Counsel of the AFL-CIO, offered some mildly controversial perspectives, nothing he said was off the charts. All in all, quite unlike the panel I would have expected at ACS.

Perhaps most surprising, all of the panelists shared a deep skepticism of "corporate social responsibility," at least to the extent that such activity was understood to mean that corporate managers resist market forces. Even the moderator, Ronnie Chatterji, who has written extensively about CSR, is more interested in bringing market forces to bear on corporations (via improved information about corporate behavior) than about asking managers to resist the market. Of course, as I noted, fiduciary law provides managers with a great deal of discretion, so the market is likely to be a much tighter constraint than law in most instances not involving fraud or conflict-of-interest transactions.

I will have a lot more to say about this topic in the coming months. I recently launched a project exploring the history of Delaware fiduciary law and examining some possible future directions. I will present a paper on that topic at the Spring 2009 Notre Dame Law School Symposium on "The Future of Fiduciary Duties in Corporate Law" (March 27, 2009).

Full post as published by Conglomerate on June 14, 2008 (boomark / email).