Sky Blog
Governments sometimes use private ordering – the delegation of regulatory authority to the private sector – in regulating commerce, finance, and business more generally. In a new article, available here, I focus on one of the federal government’s most …
Venture capital contracting is the function of a complex private-ordering exercise through which venture capitalists and entrepreneurs address the challenges of financing high-tech firms (Kaplan & Strömberg, 2004). Throughout decades of iterative practice, U.S. venture capital contracts have …
In a recent paper, I explore hidden fallacies in one of the most resilient and enduring of modern corporate law paradigms, namely agency theory (aka the “contractual” or “nexus of contracts” model).
My paper contends that the classical agency theory …
In March 2022, the U.S. Securities and Exchange Commission (SEC) proposed a rule requiring public companies to make certain climate-related disclosures as part of their securities filings.[1] The rule has been highly controversial, generating thousands of comment letters in …
Governance failures at for-profit corporations are the topic of frequent media stories, judicial opinions, and academic analyses. Nonprofit governance, however, has received significantly less attention. This lack of attention is not because nonprofits are immune from governance failures, and recent …
Private ordering has become a common way to restructure key aspects of public corporation governance. Stockholder activists and boards of directors alike are testing the bounds of the freedom to contract in the charter and bylaws, adopting provisions aimed at …
2017 was a year of major developments that are changing how companies disclose nonfinancial environmental, social, and governance (ESG) risk to investors. In January, regulations implementing the European Union’s 2014 Nonfinancial Reporting Directive took effect for certain large companies operating …
In a recent New York Times article, Steven Davidoff Solomon listed several possible explanations for a significant decline in the number of initial public offerings (IPOs). Among the most interesting was that there are many large and successful high-tech …
The shareholder empowerment movement (the “movement”), driven primarily by public pension funds and union-related funds with over $3 billion in assets, has renewed its effort to eliminate, restrict, or at least discourage companies from creating dual class share structures in …
Until very recently, it was not controversial to claim that shareholder litigation had entered a period of crisis. A significant majority of deals involving publicly-traded corporations (most of which are organized in Delaware) were challenged in litigation, and to make …
The tradeoffs between facilitating private contracting or imposing a one-size-fits-all solution by regulatory mandate are often unclear. In the field of corporate governance, predicting which approach would be more efficient is particularly complicated. Because the optimal level of shareholder rights …