Shareholder Primacy and Basketball

I recently participated in a festschrift for retired justice (and noted stakeholderist) Leo E. Strine, Jr., hosted by the University of Pennsylvania Journal of Law and Business. Justice Strine’s interventions in the debate over shareholder primacy have added heft, pragmatism, and public mindedness to the stakeholderist side. In my contribution to the symposium, I try to surface a hidden aspect of the debate.

I argue that shareholder primacy creates a competition with a single endpoint, the very best kind of game. The exhilarating tournament that results, separate and apart from any ethical or instrumental justification, is an underappreciated aspect of … Read more

New Department of Labor Investment Rules Could Be Big Win for Everyone but Labor

Few constituencies benefited more from the election of Joe Biden than the socially-responsible investor community, which saw the most-hostile presidential administration replaced by the most supportive.[1] The point is best illustrated by the departure of Labor Secretary Eugene Scalia, who was perceived by labor to be a “union buster,”[2] and the arrival of former Boston Mayor Marty Walsh, the first union member to serve as secretary in decades.[3] New investment rules proposed by Walsh’s Department of Labor governing trillions of dollars in retirement funds are set to undo much of the harm to environmental, social, and governance … Read more

Does the Quality of the Plaintiffs’ Law Firm Matter in Deal Litigation?

The sharp increase in mergers and acquisitions litigation has generated widespread skepticism about the utility of such cases and, along with it, skepticism about the role played by the plaintiffs’ law firms that bring them. Deal suits are broadly perceived to be shakedowns by plaintiffs’ law firms seeking a quick settlement and an attorneys’ fee. Even cases that appear to result in a positive outcome for shareholders of the target company—most notably, an improvement in the offer price—are explained away by law firm skeptics as having been the inevitable result of deal and market conditions, not plaintiffs’ law firms themselves. … Read more