6163 research outputs found
Sort by
Our Constitution Has Never Been Colorblind
No full textThis Article takes a contrarian approach to the first Justice Harlan’s famous phrase from his dissent in Plessy v. Ferguson, “[o]ur Constitution is color-blind,” to argue not only that the Constitution has never been colorblind, but also that racial realism counsels against falling for the siren call of constitutional colorblindness. This Article provides a quick tour through America’s racial history, from the colonial period through the first constitution, which then is remade following the Civil War. It sketches the operation of America’s racial compact that subordinates people who are Black, Indigenous, Latinx, and Asian in a system that simultaneously subordinates White people who lack wealth and power. The Court’s application of nominal or formal colorblindness has shielded those who have benefited and continue to benefit from racism such that colorblind constitutionalism, rather than addressing and redressing inequality, serves to enshrine and advance it. In this sense, our Constitution has never been colorblind
Delegated Corporate Voting and the Deliberative Franchise
Get PDFStarting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card without error); proxy-holders merely transmit the shareholder’s instruction as a formality.
This shift is more significant than generally recognized because, as this Essay explains, it restores the potential for deliberative shareholder governance to the large, publicly held corporation. Furthermore, the shift has occurred at a moment in history when technologies exist to facilitate new processes of deliberative shareholder governance. Market actors now are leveraging technology to create such innovations as pass-through voting and advance voting instructions, and academic support is building for new rules that would require intermediaries to provide their beneficial holders with choice infrastructure. This is the realization of the New Deal project to make shareholder preference-satisfaction the crux of the share-holder franchise, and it holds real promise to move corporate governance beyond shareholder wealth maximization
America’s “Kia Boys”: The Problem, Responses, and Recommendations
Get PDFThe landscape of automobile theft in the United States has undergone a dramatic transformation, marked by a notable surge in the theft of Kia and Hyundai vehicles. Once regarded as a routine occurrence, car thefts have taken on a novel dimension, propelled by a phenomenon driven by digital culture and social media virality. The thefts of these specific car brands have evolved into what is now widely recognized as the Kia Challenge, a term echoing across popular platforms like TikTok. In this challenge, young teenage individuals, often referred to as the Kia Boys or variations thereof, orchestrate daring car heists, commandeering Kia and Hyundai vehicles for high-speed joyrides, all of which are meticulously documented and shared across social media networks.
Part I of my article explores the unprecedented rise of Kia and Hyundai car thefts, exploring the driving factors behind this remarkable surge. Part II examines responses to the Kia Boys problem by vehicle manufacturers, law enforcement agencies, and consumers. Part III makes recommendations for dealing with the Kia Boys problem, with respect to law-enforcement agencies, state courts, and state legislatures. Overall, this article aims to examine the factors that have led to the emergence of the Kia Challenge, its consequences for society at large, and the urgent need for common-sense solutions to address this evolving threat in the world of automobile theft
The Structure of Corporate Law Revolutions
Get PDFSince, call it 1970, corporate law has operated under a dominant conception of governance that identifies profit-maximization for stockholder benefit as the purpose of the corporation. Milton Friedman’s essay The Social Responsibility of Business is to Increase Its Profits, published in September of that year, provides a handy, if admittedly imprecise, marker for the coronation of the shareholder-primacy paradigm. In the decades that followed, corporate law scholars pursued an ever-narrowing research agenda with the purpose and effect of confirming the shareholder-primacy paradigm. Corporate jurisprudence followed a similar path, slowly at first and later accelerating, to discover in the precedents and design of corporate law a far better defined profit-maximizing imperative than could have been imagined before the Friedman pronunciamento. The analytical situation seemed sufficiently tidied up by 2001 that two academic giants announced “a widespread normative consensus that corporate managers should act exclusively in the economic interests of shareholders.” We had reached, we were told, “The End of History for Corporate Law.
I’ve drafted this essay with the voice and views of Marty Lipton, my senior partner, top of mind. This is for several reasons. The first is that Marty understood with preternatural clarity the operation of the dialectic described in this essay. When shareholder primacy was maturing to its early full bloom, Marty was very nearly a lone holdout, insisting that shareholder primacy could not endure. His 1979 article articulating that view, “Takeover Bids in the Target’s Boardroom,” was and remains a true classic. Mr. Lipton’s article anticipated the flaws in Friedman’s share-holder-primacy narrative that would not become broadly apparent for 30 years. He saw incommensurability and anomaly in the shareholder-pri-macy paradigm, and the necessity of today’s corporate law revolution, while the rest of the legal community was settling in for a long period of “normal science.”
Even more, though, is this: Marty does not just talk about stakeholder governance; he lives it. It is the great privilege of my professional career to have practiced law at the law firm he built. Marty built it on the belief that everyone at the firm is family. And on the belief that commitment to craft, and client service, and tireless effort, and community engagement, and thought leadership, and constant innovation, and respect for every employee anywhere within the firm’s walls, could all be harmonized into a coherent scheme of organizational governance designed to produce the world’s best law firm. We should allow our corporate leaders the chance to strive for the same